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Challenges for effective access to justice

One of the most sensitive aspects in any society is justice.

It is sensitive for several reasons, the first, because effective access to the country’s Courts is not always given. Legislation has many locks and for judges, it is often not so easy to interpret the general rules in such a way that legal formalisms are overcome. It is also not easy to make the law more flexible so that persons subject to legal proceedings have access to the jurisdictional bodies. Being more flexible than the norm allows can also generate legal insecurity because there are deadlines and terms to meet, personality issues that must also be proven, as well as the obligation to present claims before the competent jurisdictional authority. All this in itself makes effective access to justice complex.

Another reason why justice is sensitive, once its doors are opened and procedural obstacles are overcome, is because the parties have expectations about a reality that is not necessarily objective and truthful.

There is an important factor that is the way of seeing a problem on the part of the defendants, from the moment it arises, how it unfolds to the course and intensity it takes.

Normally, good action is enhanced and bad action, if there was one, or to put it in a different way, the part of responsibility that corresponds to each one, as generators of the problem, is made invisible.

Human nature is too complex and people create, before coming to trial, realities that are, for them, as painless as possible. They justify their behavior mainly in front of themselves, in front of their family and also in front of the authority and society.

When the truth comes out during the trial, they deny it, depending on their values, they accuse others and they can even insist on the version that they were gradually creating in front of third parties before accessing the justice system. Self-criticism is the first step to be able to unravel the problem, but normally it does not occur in trials, on the contrary, it comes out little by little.

This in turn leads to a third aspect. The reality -with respect to the conduct of each person- was already created by the parties, particularly in civil, commercial, real estate, labor, corporate and family matters. Therefore, if the justice operator unravels a different reality and makes it visible, who formed a different truth, he feels exhibited, offended and in a vulnerable situation, therefore, his reaction is to attack and attack. The onslaught reaches, depending on its strength, to the ultimate consequences, often even reaching the judging person.

This is one of the reasons why disqualifications, ramifications of the problem and institutional weakening begin.

In addition, there are asymmetries of power, of information, of evidence provided in court, having a legal team behind that is more competent than another, more aggressive in its defense than another, more or less aware of seeking a solution to the problem, and many other more reasons.

Faced with this scenario, can the institution for the administration of justice be strengthened? It is complicated, but it is necessary. In addition to the transparency in each of the resolutions and sentences issued by any jurisdictional body, which is a legal obligation, which certainly strengthens the system for administering justice, one of the possible solutions in these matters of daily justice is mediation, particularly the public one

In it, mediated people arrive by themselves to the solution of the conflict. It has the advantage that its principles are flexible, which means that here there are no deadlines or legal terms to solve the problem, there is also no need to prove questions of personality, jurisdiction by subject matter or jurisdiction of a jurisdictional body -except for the criminal matters, which has its own system of alternative mechanisms, the rest of the matters are subject to mediation, and is governed by the principles of good faith, voluntariness, confidentiality, neutrality, and fairness between the persons mediated.

A well-managed public mediation by mediators has amazingly positive results. The problem is tackled from its root. The media take responsibility for their actions in the proportion that corresponds to the problem and there is even an escape valve to bring all the psycho-emotional issues to the surface in order to successfully complete the solution of the problem.

In addition, the alternative mechanisms to resolve controversies are contemplated at constitutional level in article 17 as a human right to access them in a different way than the jurisdictional organs of the State.

There is an obligation to implement it, however, it has not been given for multiple reasons. Perhaps the most important is that even having the obligation to contemplate it, with the constitutional reforms of March 2021 and legal reforms of June of that same year, no reference was made to it. One of the answers, because there are several, is because people do not believe in it or its advantages. Perhaps it is ignorance that leads one to think that there will be competition with the formally jurisdictional bodies, but this is not the case, the work for the courts and tribunals is infinite, it does not end, on the contrary, it increases. The public defender’s office is also unable to cope with the defense of the issues. On the other hand, in those matters that can be mediated, because not all of them are, the result, if the mediates so want it, is guaranteed. Public mediation is going to help the most socially disadvantaged people, who do not have access to a good team of lawyers to defend their cases and problems and who also do not have access to a public defender because they do not have enough.

A federal alternative justice center, which has been legally required to create it since 2017, with mediators trained and certified by the State, belonging to the Federal Judicial Power, as is the case in the states, free of charge, as access to the alternative and structured justice, would relieve many of the problems of lag and credibility that the Federal Judiciary has. We must bet on public mediation and because the Center for Alternative Justice is soon created, separated from any interference by another Public Power, because it has to serve all the people who have a problem and who want to solve it in a friendly way. , flexible, expeditious, confidential, fair and without the wear and tear of the Courts. Why was it not thought of in the 2021 reforms? In addition to because perhaps you don’t believe in it after seeing its benefits. That is the question, because whether you like it or not, it must be created because it is a constitutional mandate. There are so many interests in everything, that perhaps that is why the country makes little progress. If the Alternative Justice Center is not created at the Federal level, what is going to happen is what is being experienced, that private mediation prevails over public mediation, to the detriment of the most socially disadvantaged people in this country.



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