Alternatives for resolving disputes in administrative matters in Mexico

Since the “Judicial Reform” became final after the Plenary Session of the Supreme Court of Justice of the Nation rejected the corresponding draft ruling, said reform will have full applicability in the Mexican legal system.

The above implies, in a prominent manner, the following:

1. New composition of the Supreme Court of Justice of the Nation:

1. Reduction in the number of Ministers, from 11 to 9.
2. Reduction of the term of office, from 15 to 12 years.
3. Elimination of the Chambers that make up the Court, so that it will only operate in Plenary Session.

2. Election by popular vote to elect all Magistrates and Judges.

1. Popular election of the Magistrates of the Electoral Tribunal of the Judicial Branch of the Federation.
2. Popular election of Circuit Magistrates and District Judges. This means that 1,700 federal judge positions will be elected by vote by 2025, and another 1,800 will be elected in 2027.

3. Elimination of the Federal Judicial Council:

1. Creation of the Judicial Disciplinary Court.
2. Creation of a Judicial Administration Body.

4. Establishment of new procedural rules:

1. A maximum period of six months is established for the resolution of tax matters and one year for criminal matters.
2. Prohibition of granting suspensions against laws with general effects in amparos, constitutional controversies and actions of unconstitutionality.

Once all the measures entailed by the Judicial Reform are implemented, we believe that the federal judicial system will enter a period of transition and adjustments that will invariably trigger a change in the way in which amparo trials are processed and resolved.

The above will give rise to those individuals and legal entities that are affected by an act of authority to seek alternative means to resolve the controversy in light of the changes in the Judicial Branch of the Federation and the uncertainty that could be generated by the changes in the structure and operation that will take place.

It should be noted that in the face of such uncertainty, the different means available to individuals to avoid damage caused by acts of authority must be recognized, with the General Law on Alternative Dispute Resolution Mechanisms ("LGMASC") being relevant, which aims to establish the bases, general principles and distribution of powers for alternative dispute resolution mechanisms, which may even be initiated before the authorities.

What the LGMASC seeks is to promote the culture of dialogue and negotiation, by encouraging the peaceful resolution of disputes through guaranteeing access to alternative justice other than jurisdictional or contentious justice, with a confidential, voluntary, complete, neutral, independent, flexible, equal, legal, prompt and expeditious character.

That is to say, this Law seeks to resolve disputes between the governed and public entities in a prompt and accessible manner through agreements that will have legal effects, achieved through various mechanisms that the Law itself indicates.

The LGMASC speaks of the following five alternative means of dispute resolution:

• Negotiation. Process by which the parties, by themselves with or without intermediaries, propose solutions through dialogue, in order to resolve a controversy or conflict.

• Collaborative Negotiation. Process through which the parties seek a peaceful and equitable solution to their conflict, through dialogue and, if necessary, the support of third parties.

• Mediation. Voluntary procedure through which the parties agree to resolve a controversy or conflict partially or totally, peacefully or to prevent a future one, only with the assistance of an impartial third person called a facilitator.

• Conciliation. Voluntary procedure by which the parties involved in a controversy or conflict agree to resolve it partially or totally, peacefully or to prevent a future one, not only with the assistance of a third party, but with the latter having an active participation in the process.

• Arbitration. Process for resolving disputes or conflicts other than within state jurisdiction, by which the parties voluntarily decide, through an agreement or arbitration clause, to submit all or certain differences that have arisen or may arise between them, regarding a certain legal relationship, with the participation of a third person called an arbitrator who issues an award in accordance with the rules established in the applicable regulations.

In relation to the above, it is important to note that in accordance with the LGMASC, alternative dispute resolution mechanisms will not be processed with respect to the following matters and/or disputes:

• Final resolutions imposing administrative sanctions on public servants, as well as those decided by administrative appeals in this matter.
• In agricultural matters.
• The matters provided for in Article 94 of the Foreign Trade Law.
• The programs or goals of the Centralized and Decentralized Public Administration at the Federal and Local levels are affected.
• Public order is violated or the rights of third parties are affected.
• In labor disputes with the Public Administration.
• In cases where administrative authorities file a lawsuit against resolutions favorable to individuals.

Additionally, various federal entities already provide in state legislation alternative means of dispute resolution to resolve conflicts that arise between the governed and the public administration, among which the following stand out:

• Mexico state.

The Code of Administrative Procedures of the State of Mexico establishes that at any time during the processing of the administrative process before the Administrative Court of Justice of the State of Mexico, the parties may reach conciliatory arrangements that put an end to the matter, with the agreements reached having the same effects as a final judgment.

• New Lion.

In the case of a nullity trial before the Administrative Court of Justice of the State of Nuevo León, the Law of Administrative Justice for the State and Municipalities of Nuevo León establishes that from the admission of the claim and until the sentence is issued, the Magistrate will promote conciliation between the parties.

Conclusion

Taking into account the above and due to the uncertainty that may be generated with the implementation of the Judicial Reform and the transition period that it will have, it is considered convenient to take into account the alternative means of dispute resolution established in the LGMASC and other state legislations, in case there is any affectation by the federal and local public administration and an agreement is sought that does not involve a jurisdictional procedure, such as the amparo trial.