3 april 2020

Title: “Extra-judicial conciliation as a procedural requirement in contentious-administrative matters in Colombia, a critical look at its problems, successes and challenges”

Author: Susana Restrepo Amador

The present work deals firstly with a study of the mechanism of conciliation as such, its origins, the existing classes, its constitutional, legal and jurisprudential basis in Colombia, as well as its normative development in the field of pre-judicial administrative litigation in that same country. Subsequently, a comparison was made of those conciliations where at most one party is the State and those that are held only between private parties. Then, a chapter was dedicated to the benefits of concluding this type of agreement for the finances of the State, but on the other hand, we also spoke about its main problems, and then we dedicated a section to the judicial homologation of the conciliatory agreement reached, an indispensable legal requirement for the success of this alternative dispute resolution mechanism. Finally, we analyzed the 2019 statistics of one of the judicial procurator's offices in the city of Cartagena de Indias (Colombia) as a sample of the practical reality of conciliation, to conclude with the following conclusions:

1. As a first point, we consider that conciliation should not be required as a procedural requirement in those processes whose means of control are direct reparation and contractual disputes, since in order to be effective in such cases, a greater debate on evidence is necessary, which generally only occurs in the course of the process, which is why the great majority of requests presented in pre-judicial proceedings are unsuccessful, generating greater wear and tear for the Attorney General's Office and the Entities themselves, which translates into more work for defence attorneys, Conciliation Committees, etc.
2. A further recommendation would be that, in invalidity and restoration proceedings, conciliation should be required as a procedural requirement only for cases where there is a precedent in case law, such as where there has been a unification of the courts, or where there is no precedent in case law and in other cases it is left to the party concerned to decide whether or not to make the request in accordance with the evidence in its possession. Otherwise, the same congestion that we see today will continue to occur, where the majority of requests presented are precisely directed through this means of control, since it is the most common for claims of a labour or pension nature, etc.
3. Finally, it is recommended that the attorneys general analyse and study very well the requirements for the homologation of the conciliatory agreements and based on this, instruct the parties so that after such an effort it does not go to waste when in the judicial seat the Contentious Administrative Judge considers that the agreement reached is harmful to the public patrimony or is not supported by the necessary evidence among other faults; otherwise, this would lead to an unnecessary waste of time and become an additional frustration for the already overloaded administration of justice. It is essential that the attorneys who are the conciliators par excellence before the jurisdiction of the contentious-administrative field are fully trained so that the many or few agreements reached achieve the desired effects of res judicata.