The prior exception of existence of mediation agreement and its application in ordinary processes in Ecuador

Abstract

This study stems from the concern that the prior requirement of mediation by agreement, article 153.10 of the General Organic Code of Processes (COGEP) in ordinary Ecuadorian processes may be making mandatory a figure whose essence is voluntariness. Based on the idea that this procedural tool, when applied without adequate controls, could become a coercive mechanism that distorts the autonomous nature of mediation as an alternative method, the following research question is formulated: To what extent does the prior exception for the existence of a mediation agreement affect the principle of voluntariness in the ordinary proceedings of the Ecuadorian judicial system? In order to answer this question, the general objective is to analyse the impact of the application of this figure on guaranteeing access to justice and on the procedural autonomy of the parties. For this purpose, qualitative legal-documentary research is applied, organized in nine thematic axes that address the conceptualization of mediation to its jurisprudential analysis. Through the use of dogmatic and exegetical methods, relevant norms and rulings are examined in order to compare the legal framework with its practical application. The results show that the automatic application of this exception violates the principle of voluntariness and affects effective access to justice.