One more step before filing a lawsuit?

We continue with our “Civil Procedure Reform Watch,” the series in which we examine, chapter by chapter, the changes that the proposed new Civil Procedure Code could bring to the way litigation is conducted in Chile.

From Article 258 to Article 256

In the first chapter, we reviewed the requirements for filing a complaint, as set forth in Article 258 of the bill. One of the points mentioned there was the certificate of failed mediation, which the bill requires to be submitted with the complaint when applicable.

That point leads us directly to the second chapter: What exactly does the new Article 256 propose regarding judicial mediation?

What Does the Reform Propose?

The 2021 Executive Guidelines include a new Article 256, which is structured around four central ideas:

• Mediation service: The Public Services and Mediation Unit must provide or coordinate the service.

• Mediation requested or ordered: It is appropriate if requested by an interested party, or if the judge orders it after suggesting it to the parties, in accordance with the Code.

• Mandatory Pre-litigation Mediation: In certain matters, the parties must undergo mediation before filing a lawsuit.

• Urgent measures and suspension of the time limit: Mediation does not prevent a party from requesting preliminary or interim relief, and it suspends the time limit set forth in Article 199 while it is ongoing.

In what cases would mediation be mandatory?

According to the second paragraph of Article 256, cases involving the following matters must undergo mediation prior to the filing of a complaint:

• Pesos Collection
• Leasing of Property
• Compensation for Damages
• Division of Property
• Violations of Law No. 19,496 on the Protection of Consumer Rights (with the exception of the procedure set forth in Paragraph 3 of Title IV of said law)

What if I need to take immediate action?

The bill ensures that this requirement does not leave the plaintiff without urgent remedies. Even in matters subject to mandatory preliminary mediation, preliminary injunctions and interim relief may always be sought.

In addition, if a preliminary injunction has been granted, the deadline for filing the complaint and requesting that the injunction be maintained—which may not exceed 30 days—is suspended while mediation is ongoing.

Filing a lawsuit would no longer always be the first step

This is perhaps the most significant change in this chapter: in certain matters, pre-trial mediation would serve as a mandatory step prior to the commencement of trial proceedings. The process would be as follows: mandatory pre-trial mediation → certificate of failed mediation (if it fails) → complaint (Art. 258, No. 8).

In other words: filing a lawsuit would not always be the first strategic move in a dispute. In certain cases, the litigation strategy would begin earlier, with mandatory mediation.

* This is a bill currently under consideration, so its content may change before its final publication. The explanatory notes themselves also state that the rules on mandatory and optional mediation would take effect once the laws governing the matter are enacted. The purpose of this series is to show the direction in which the discussion is moving.