Mediation as a preliminary requirement for initiating legal proceedings to collect an executory instrument

Abstract

This study analyzes the legal and procedural feasibility of establishing mandatory pre-trial mediation as a procedural requirement for enforcement actions arising from negotiable instruments within the Ecuadorian legal system. Using a qualitative paradigm with a descriptive-explanatory scope, the analytical-synthetic method and normative exegesis were employed to evaluate the technical antinomy between constitutional expediency and the procedural rigidity of the General Organic Code of Procedures (COGEP). The unit of analysis comprised the jurisprudential and statistical diagnosis of the Civil Judicial Unit of the Tulcán Canton during the period 2024-2025. The findings revealed excessive litigation in the ordinary courts, eroding the principle of procedural economy, in contrast to a technical effectiveness of self-resolution exceeding 95%. A substantial economic efficiency is quantified, with the mediation mechanism reducing public spending by 72.2% per case compared to the jurisdictional enforcement phase. The research determined that the current optional nature of Alternative Dispute Resolution (ADR) methods is insufficient to mitigate systemic overload. It concludes that there is an imperative need for legislative reform that establishes mediation as an "intelligent admissibility filter," providing the system with a restorative and expeditious justice structure without violating the core of the right to effective judicial protection.