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Best Practices Manual for Teaching Alternative Dispute Resolution in Mexico

Ives Soberon

Introduction

On June 18, 2008, an important constitutional change was carried out in Mexico, with which the transition from an inquisitorial criminal justice system to an accusatory court began. From the beginning, this was a major challenge, not only for the institutions of law enforcement and administration of justice in the country, but also for the law schools in charge of teaching the lawyers who would now be part of this new system.

The inquisitorial system operated for more than 100 years in Mexico and law schools consequently prepared their students to work and develop within it, so this inquisitorial system was an integral part of the teaching method used by their professors.

This old system considered, but was not limited to: the almost total use of writing for the proceedings so that if students wish to work in this new accusatory system they must be taught new skills and competencies to be able to perform in this predominantly oral system.

The challenge of preparing a new generation of lawyers to meet the challenges that the adversarial criminal justice system brought with it represented a titanic task. It suffices to note that in Mexico there are currently 2494 active law degree programs. Therefore, changing the way of teaching criminal procedure law and alternative dispute resolution mechanisms in the field revealed many areas of opportunity that have been gradually addressed. Areas including but no limited to: updating the curricula for law degrees, teachers’ training in new teaching techniques based on creating skills and abilities, as well as having adequate spaces for teaching the adversarial system.

Another proposal of the 2008 reform was the incorporation of alternative dispute resolution mechanisms in criminal matters (MASC) to solve conflicts arising from the commission of a crime. Although it is true that when this reform was proposed it was not yet known how they were going to operate; the procedural codes should establish them so that the victims or offended persons would have a comprehensive and expedite reparation of the damage.

To the challenge posed by the constitutional reform that established the adversarial criminal procedure system was compounded by the constitutional reform on Human Rights in 2011, which marked a turning point in this area by establishing in Article 1 of the Political Constitution of the United Mexican States:

Article 1. In the United Mexican States, all persons shall enjoy the human rights recognized in this Constitution and in the international treaties to which the Mexican State is a party, as well as the guarantees for their protection, the exercise of which may not be restricted or suspended, except in cases and under the conditions established by this Constitution.

The norms relating to human rights shall be interpreted in accordance with this Constitution and with international treaties on the subject, favoring at all times the broadest protection for individuals.

All authorities, within the scope of their skills, have the obligation to promote, respect, protect and guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and progressiveness. Consequently, the State shall prevent, investigate, punish and redress human rights violations, under the terms established by law.

This reform, which to a certain extent was complementary to the 2008 reform, increased the demands on teachers and students, since human rights, being a cross-cutting issue, would have an impact on practically all branches of law, especially substantive and adjective criminal law.

The American Bar Association's Rule of Law Initiative aims to “promote justice, economic opportunity, and human dignity through the rule of law.”

Since 2013, the American Bar Association's Rule of Law Initiative has worked with universities, students, and teachers to properly prepare a new generation of lawyers who can effectively thrive in the adversarial system. All this work has been carried out through consultancies, courses, state and national contests and contests, as well as some exchanges with teachers who have the international experience of having worked in the accusatory system or in alternative dispute resolution mechanisms in other countries.

The project New Advocates for Mexican Justice - ABA ROLI Mexico has been working since 2017 to build in students and teachers, not only of law degrees, competitions to teach or develop alternative dispute resolution mechanisms in criminal matters. The focus was broadened, and after starting with only a course on Mediation and Negotiation Techniques, we have covered all the topics considered in the National Law on Alternative Dispute Resolution Mechanisms in Criminal Matters, considering mediation, conciliation, and the Restorative Board. In this sense, the Initiative has been concerned with preparing teachers to be able to effectively teach these mechanisms and their application in practice, through the development of courses of Trainer of Trainers in Alternative Dispute Resolution Mechanisms in Criminal Matters and Restorative Boards.

Student training was strengthened by holding National Mediation Contests (later called Alternative Dispute Resolution Mechanisms), open to university students who could register to demonstrate their knowledge and skills by developing simulations of MASC processes, very close to what happens in real cases, including current issues such as the inclusion of human rights and gender perspective.

It has been a complex way, marked by constant redesign and the search for continuous improvement. The pandemic caused by the SARS-COV2 virus (COVID 19) declared in Mexico as of March 2020, put ABA ROLI Mexico to work at full speed to migrate all activities from face-toface to virtual. It is worth mentioning that not only ABA ROLI Mexico's external activities were affected, but also its internal activities, as it had to establish a work mode at home in which the way of communicating and working among its members has changed.

The accumulation of actions carried out by ABA ROLI Mexico to achieve success in those projects mentioned above have generated great learning that deserves to be identified, arranged and shared. As this was an innovative initiative, activities had to be designed from scratch, which in many cases led to a cautious approach to identifying the strengths, weaknesses and areas of opportunity in each of them

This work seeks to take up these actions in a Manual of Best Practices, which identifies and describes the path followed by the project New Advocates for Mexican Justice in Mexico (ABA ROLI Mexico). It also seeks to follow suit of the efforts undertaken in the field of Alternative Dispute Resolution Mechanisms in Criminal Matters and to highlight aspects that may represent a challenge or an area of opportunity in the future.

The identification of best practices began to be used mainly in industry and manufacturing, and was later used in business administration, public service, agriculture, among others. We should mention that historically civilizations have learned from their own actions in order to improve, avoiding making the same mistakes that produce undesirable results.

Best practices “are significant and concrete experiences that are the result of personal and institutional factors and that imply the knowledge of how to do something, as well as the capacity to carry it out and thus achieve the intended goals: Know and Know How; Knowledge and ability to act.” Thus, the main goal of ABA ROLI Mexico with this Manual is to share a concrete critical path for the implementation of courses and contests with alternative mechanisms that reach a high level, taking into account pedagogical assumptions that have proven to be fundamental in training new lawyers and facilitators in MASC and restorative practices. 

In the development of this Manual, the following topics will be addressed, including but not limited to: the design of the teaching model of techniques and tools to prepare facilitators in MASC in Mexico; the design and organization of MASC contests in criminal matters, either in person or online, as well as the training of volunteers to work with role-plays. A chapter will be devoted to detailing how cases should be written for MASC contests, and will include cases that could be used as a basis for a contests, which emphasize some relevant issues such as gender perspective and inclusion of human rights. Finally, the different rubrics that can be used in MASC contests will be explained, specifically to work on mediation, conciliation and restorative processes.

It is appropriate to clarify that this manual does not intend to develop the concepts and processes of mediation, conciliation and restorative boards, but as its name indicates, it wishes to gather those good practices that ABA ROLI Mexico has carried out in the teaching of these alternative dispute resolution mechanisms to both teachers and students, as well as the essential didactic elements to be taught in an effective way.

To address the aforementioned topics, we will study different authors and professors whose expertise is pedagogy, and whose modern theories will allow us to fully understand why the MASC teaching model used by ABA ROLI Mexico is successful. We will also be consulting different materials created by ABA ROLI Mexico, such as schedules of courses, designs they have successfully carried out in their contests, as well as the rubrics that have been used in the development of those courses. It is also necessary to attend to different regulatory organisms of our country to understand the scope teachers and students should have when working with alternative dispute resolution mechanisms in criminal matters. As, for example, many sections contained in the rubrics are based on the legislation and what should occur when developing this type of process.

In conclusion, this manual of best practices aims to become a guide for all law schools in the country. And so that those students who wish to prepare themselves as facilitators find an approved and efficient way for teaching and learning alternative dispute resolution mechanisms, from a theoretical and practical point of view.

The work carried out by ABA ROLI Mexico for more than 5 years in perfecting techniques through which alternative dispute resolution mechanisms are taught and practiced in the country make the content of this work most valuable. This is because new generations of high-level lawyers that our criminal procedural system requires have been prepared through its postulates.

The transparent and democratic work carried out by the Initiative for the American Bar Association's Rule of Law Initiative in Mexico has allowed teachers and young students from the whole country to be part of what has been under construction for more than 5 years, which shows that when there is a true institutional design and organization, results can go beyond expectations.

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    To make this manual possible, there are many people and institutions to whom we must thank, mainly to the American Bar Association and its New Advocates in Mexico initiative.

    Special thanks are due to Juan Manuel Olvera Méndez, Country Director of ABA ROLI Mexico, who, with his vision and tenacity, has made it possible for this manual to remain a permanent support to continue with the mystique of training and education of future lawyers in Mexico. Also to Eduardo Rives Lagunes, Program Officer of Alternative Dispute Resolution Mechanisms of ABA ROLI Mexico, who, having been a participant in the courses and contests held by the Initiative, became a fundamental piece in the creation of this manual.

    People responsible for reviewing this manual for clarity and order were: Narda Beatriz Bernal Sánchez, Nancy Barragán Machado and José Manning Ramírez, consultants and trainers from ABA ROLI Mexico, who selflessly contributed their ideas and time to improve this instrument. We thank them for their collaboration and their deep love for Alternative Dispute Resolution (MASC, for its acronym in Spanish) and Restorative Justice.

    I thank my colleague Marisol Ramírez Sánchez for giving us this manual foreword and for her contributions to Restorative Justice in Mexico and Latin America.

    Special thanks to my wife Itzel and to my son José Ives, who grew up along with this manual.

    Thanks to the universities and institutions in Mexico that have always had their doors open for the New Advocates Initiative in Mexico.