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(506) 223-1327       Published Tuesday, Dec. 26, 2006, in Vol. 6, No. 255           E-mail us    
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Mediation and arbitration clauses save headaches
By Garland M. Baker
Special to A.M. Costa Rica

Q. What is the difference between a good priest and Peter at the Pearly Gates? 

A. One is a mediator and the other is an arbitrator.

Most people do not know they can pick their own arbitrator in Costa Rica if they know what they are doing.

A mediator is a person who can assist two or more persons to come to an agreement but has no decision power one way or the other if they do not.

An arbitrator moderates disputes but in the end can make a decision as to who wins and who loses.

Law 7727 of Dec. 9, 1997, called the “Ley Sobre Resolución Alterna de Conflictos y Promoción de la Paz Social,” or law of alternative resolution of conflicts and promotion of social peace is a very important and under-utilized set of rules to resolve conflicts and avoid the judicial system.

Good advice for living and doing any kind of business in Costa Rica is to stay out of the courts.  The judicial system in this country is slow and inefficient.

Getting into a legal action in Costa Rica is like two kids throwing mud pies over a fence.  One throws one pie, and the other tosses two.  Usually this goes on geometrically making lawyers wealthy.

Law 7727 can keep people out of court and solve problems quickly.  However, the trick here is to learn how to use it effectively.   Some of the articles of the law do not work as designed.  For example, the law states that in a conflict one can request the bar association or the Sala Primera of the Corte Suprema to appoint an arbitrator.  However, several calls to both determined that neither put its part of the law to work.  

Employees recommended calling the Ministerio de Justicia y Gracia where one can find a list of arbitrators.

All contracts in Costa Rica should have mediation and arbitration clauses in them.  The resolution of conflicts center at the justice ministry's office provides detailed list of approved mediators and arbitrators. These are referred to as justice centers.

Mediators are generally free or low cost where arbitrators are not free and their costs can jump all over the place.   Some justice centers provide both mediation and arbitration, some only mediation and others only arbitration.

In mediation, a decision reached by the parties is binding and is as good as a judgment by the courts and is executable as such.  The keyword here is parties. The mediator cannot make the decision.  If there is no agreement reached in mediation between the parties to the dispute, the conflict then can go to arbitration or to court.

Good contracts include an arbitration clause to stay out of court after failed mediation. 

In arbitration, parties pick representatives to plead their case in front of an arbitrator or arbitrators referred to as an arbitration panel.  The decision of the panel is final and again as good as a court judgment. 

The secret that most people do not know is that articles 19 and 20 of the law states arbitration can be either be by law or by equity.   This means a contract can appoint an arbitrator or arbitrators in the event of a dispute, avoiding justice centers all together.  The arbitrator or arbitrators can be anyone, even people with no knowledge of law.

A great tip is to put mediation and arbitration clauses in employment contracts.  Yes, even with domestic employees.  They are constantly making proverbial mountains out of molehills at the expense of employers.   When disgruntled employees go to court, employers generally lose.  Employment contracts cannot take away any inalienable rights of employees but contracts with the correct clauses can sure level the playing field and protect employers rights much more so than the courts do.

In conclusion, wise expats will use contracts in Costa Rica to conduct business affairs including buying or investing in property.  They should put mediation and arbitration clauses in the contracts  and appoint an arbitrator or arbitration panel in the contract to avoid justice centers.

A.M. Costa Rica graphic
The ultimate mediation and arbitration
. . . Paul mediates while Peter selects destination

Justice Centers

Casa de Justicia Universidad Latina de Costa Rica
mediation 253-7729.

Casa de Justicia de la Municipalidad de Mora
mediation 249-3124.

Casa de Justicia Universidad de Costa Rica, Liberia mediation 665-5064

Casa de Justicia en materia del Consumidor
mediation 284-8888, 800-CONSUMO.

Casa de Justicia de San Ramón mediation  437-9844.

Casa de Justicia de Santa Cruz mediation  680-4747.

Centro de Conciliación de la Cámara de Comercio de Costa Rica mediation and arbitration 256-4041, 221-0005 Ext. 102.

Centro Resolución de Conflictos Colegio Ingenieros y Arquitectos mediation and arbitration 202-3942, 202-3989.

Centro Internacional Conciliación y Arbitration Cámara Costarricense Norteamericana de Comercio. CICA-AMCHAM mediation and arbitration 220-2200, 296-0696.

Centro Resolución de Conflictos, Ministerio de Trabajo, mediation 256-2798.

Centro Mediation y Manejo Conflictos, Enseñanza e Investigación CEMEDCO mediation 221-7425.

Instituto de Conflictos Familiares INCOFAMI
mediation 256-7232, 222-0647.

Centro de Resolución de Conflictos en Materia de la Propiedad. Cámara de Corredores de Bienes Raíces. CRCP mediation and arbitration 224-8607, 283-2891.

Centro Latinoamericano de Arbitration Empresarial. CLAE arbitration 253-2545, 253-0728.

Centro de Mediation y Arbitration, CEMEDAR
mediation and arbitration 296-5203.

Centro de Mediation, Balanza y Nivel JURISIS
mediation 257-5747.

Centro de Mediation y Arbitration AUSA
mediation and arbitration 288-2861.

Centro Autónomo RAC Laboral
mediation and arbitration 223-6603.

Casa Armonía Centro de Mediation Familiar
mediation 376-5850, 886-5322.



Garland M. Baker is a 35-year resident and naturalized citizen of Costa Rica who provides multidisciplinary professional services to the international community.  Reach him at info@crexpertise.com.  Lic. Allan Garro provides the legal review.  Reach him at crlaw@licgarro.com.  Baker has undertaken the research leading to these series of articles in conjunction with A.M. Costa Rica.  Find the collection at http://crexpertise.info.  Copyright 2004-2006, use without permission prohibited.



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San José, Costa Rica, Tuesday, Dec. 26, 2006, Vol. 6, No. 255   

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A.M. Costa Rica/Saray Ramírez Vindas
Daughter of slain magazine editor Ivannia Mora clings to her father at commemoration for her mother Saturday. Friends and associates want justice in the 3-year-old drive-by murder after five persons were acquitted in the case.


Drivers downtown need
to find alternate routes


By the A.M. Costa Rica staff

Streets downtown will be blocked today from 10 a.m. in anticipation of the annual tope or horse parade that starts at 1 p.m.

Policemen and work crews were out Monday evening placing barrels and roping off Paseo Colon, Avenida 2 and Avenida 1. This will be the parade route from Parque La Sabana to Plaza Víquez.

This year for the first time the Municipalidad de San José is running the horse parade because the Comisión de Festejos Populares has bowed out.

However, the traditional Dec. 27 carnival through the city has been canceled.

Even though the commission has had to cancel the carnival at Zapote, San José, a similar event is now taking place at the Expo Pococí in Guápiles. This includes the Costa Rican-style bull fights where a confused bull is thrust into the ring with a crowd of would-be matadors who then taunt the bull into exhaustion. People pay to watch this, and Channel 13 is broadcasting the confrontations.

Channel 7 has responded to the cancellation of the Zapote fair by constructing a studio set that looks like a carnival beer hall. The station produces the "Chinamo" every Christmas season, usually from Zapote. The variety show is a big money-maker for the television station.

Two public employees win
their appeal in sex case


By the A.M. Costa Rica staff

The Sala III Corte Suprema de Justicia has thrown out convictions of making pornography against two public employees, auditors on the staff of the Contraloria General de la República.

The high criminal court decision in the 2004 case also cleared the two men, Jorge Cortés Villegas y Manuel Fernández Carvajal, of a charge of having paid sex with a person underage and distribution of pornography.

The court decision said that the men were being acquitted under the principle of reasonable doubt, but the magistrates did not clarify the decision in detail.

The men had been sentenced to nine years in prison. The court also threw out a civil case that had been brought against the men by the victims through the Oficina de Defensa Civil de la Víctima.

The case began with the arrests of the men Sept. 10, 2004, after two 15-year-old girls said they have been taken at knife point to the men's hotel room and photographed without wearing clothes. The men were on assignment in Limón at the time, and the original criminal case was heard there.

Agents of the Judicial Investigating Organization raided the hotel room and recovered a digital camera and a portable computer, they said at the time.

The men were convicted May 24 in the Tribunal de Juicio de Limón, but the high court ordered their immediate release from detention.

New ambassador named
for Costa Rica in Canada


By the A.M. Costa Rica staff

Emilia Alvarez, a career diplomat, is the new Costa Rican ambassador in Canada.

The Ministerio de Relaciones Exteriores y Culto made the announcement Friday. She replaces Carlos Miranda.

Ambassador Alvarez has been director of the foreign service of the ministry, first secretary of the Costa Rican Embassy in Austria and an alternate delegate to two United Nation commissions.

Singer James Bown dies

By the A.M. Costa Rica wire services

Legendary American singer James Brown has died at the age of 73. The agent for the so-called "Godfather of Soul" says the singer was hospitalized Sunday in Atlanta, Georgia, with pneumonia, and died early Monday.

Brown was an iconic musician whose soulful voice and high-energy dance moves revolutionized rhythm and blues  and electrified audiences throughout a 50-year-long career.

Brown's signature gospel-style singing, innovative rhythms and large backing bands were instrumental in creating new genres of American music, including the soul music and funk of the late 1960s and early 70s. Later, his work paved the way for disco and rap and earned him several nicknames including "Mr. Dynamite," "The Hardest Working Man in Show Business" and "Soul Brother No. 1."
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San José, Costa Rica, Tuesday, Dec. 26, 2006, Vol. 6, No. 255  






State of tourism clouded by delays in visitor statistics
By the A.M. Costa Rica staff

The state of Costa Rican tourism is handicapped because exact numbers are not available.

Tourism officials are guessing that fewer tourists have or will come in 2006 than in 2005. They consider 2005 a banner year.

But statistics on tourist arrivals show that the total number of visitors actually went up 3.8 percent during the first six months of 2006.

Some tourism officials claim to have seen figures for July and August 2006, but they have been unable to provide them. Statistics are first gathered by the Dirección General de Migración y Extranjería based on immigration reports at the nation's entry points. There always has been a delay in getting the numbers in shape so that the Instituto Costarricense de Turismo and professional organizations can interpret them. But this year the delay is longer.

Tourism is the nation's biggest industry, and an absence of statistics makes decision-making difficult.

Nevertheless, Carlos Benavides, the Turismo minister, speculated Friday that tourism numbers would be down 2 to 5 percent when final figures are in. He said this even though the tourism institute reported at the same time that 45 more cruise ships visited the country in 2006 than in 2005. Benavides blamed a decrease in commercial flights. The institute said it would not have accurate figures for the whole year until February.

If tourism has declined, this happened in the last half of the year because the figures from January to June say that tourism from North America was off only 1.1 percent. In other words 5,560 fewer North Americans visited during that period than in 2005. Still 501,785 North Americans did visit. Some 55,731 were Canadians, and 420,537 came from the United States. Mexico contributed 25,517.
Tourism arrivals: First six months of 2005 and 2006

2005
2006
Change
%
From U.S.
427,970
420,537
-7,433
-1.7
From Canada
56,399
55,731
-668
-1.2
From Europe
109,910
113,721
3,811
+3.5





Total tourists
897,028
930,680
+33,652
+3.8


As always, the nation's tourism figures are misleading because persons from many countries are considered tourists even though they may never stay one night in a hotel.  In 2006, for example, 146,778 Nicaraguans entered the country as tourists, an increase of 20,827 or 16 percent over 2005.

European tourism was up in the first half of the year. There were 113,721 European visitors, 3,811 or 3.5 percent more than in 2005.

A new immigration law that went into effect in August creates a number of new categories for tourists. Sports team members, for example, will enter the country under that category. Now every visitor without a special visa is considered a tourist.

So, too, are the many resident expats who renew their tourist visas by making trips out of the country every 90 days. 

Statistics for 2006 notwithstanding, anecdotal reports suggest that in some areas tourism is down up to 35 percent. The big increase in arrivals at Daniel Oduber airport in Liberia has changed the face of tourism and favors Pacific destinations. The airport hosted 92,326 visitors in the first six months of 2006. All but 3,430 were from North America.

During the same period arrivals to Juan Santamaría in Alajuela were off 3 percent. That airport still handled 577,163 arrivals.


A Costa Rican dicho with a  bit of destiny added in
El que nacio para tamal del cielo le caerán las hojas
 
“If you're born to be a tamale, the leaves will drop from the sky.” It seems to me that this simple dicho has something to say about human destiny. Ergo, even if you’re born to be a lowly tamale, the things you need to become that (in this case, banana leaves) will come to you.
 
Costa Rican tamales are different from the Mexican or Cuban varieties, and I actually think they have more in common with the Venezuelan version known as hayacas.
 
In Costa Rica making tamales is a holiday tradition. Custom has it that tamales are to be served with steaming cups of strong, black coffee to friends and family who drop by in the afternoon during the vacation week between Christmas and New Year’s Day.
 
The preparation of tamales is usually a family or sometimes even a community affair with folks getting together to prepare the ingredients and assemble the tamales for cooking. It’s one of those wonderful old traditions that bring everyone together in congenial fellowship at the holidays.
 
El que nacio para tamal del cielo le caerán las hojas sounds funny because one gets this mental picture of banana leaves cascading from the heavens. Once, however, back when I spent most of Christmas in the States, we were entertaining a lot of international students who were stuck far from home at the holidays.
 
After moving to the United States, I had quickly transplanted the holiday tradition of tamale making among my new family. That particular year we decided to include the international students from Indiana University in the festivities. For many years we had relied on an international market in our town for our supply of banana leaves.

But that Christmas, when we needed more leaves than ever, our usual supplier was completely sold out. As one doesn't encounter too many backyard banana trees around Bloomington, Indiana, in mid-December, it looked like there wouldn't be any tamales for us or our international students that year. What a disappointment!
 
We had all but given up on the idea, when a young Puerto Rican student recalled that there were banana trees all over her old neighborhood in San Juan. Maybe her mother could collect the amount of leaves we needed and fly them up to us via Federal Express. Well, as you’ve undoubtedly guessed, that’s what she did. So, our banana leaves really did fall from the sky that year! A huge box of them arrived from Puerto Rico on Dec. 23, in time for our tamale festival the following day.

That year we had people from Mexico, Costa Rica, Puerto Rico, Italy, Korea, Croatia, Venezuela, Germany, and, of course, the United States all making tamales together. The Christmas that banana leaves fell from the sky was a holiday I’ll not soon forget.

Here’s a recipe for Costa Rican Christmas tamales that I thought you might enjoy trying next holiday season:

The
way we say it

By Daniel Soto


The masa:

Melt 1 stick of butter in 1 cup boiling beef broth. Slowly add 2 ½ cups of masa harina, stirring continuously over medium
heat until mixture reaches the consistency of a thick paste. If it’s too thin, add a bit more masa harina. If it becomes too thick to stir, add a little more broth. But it’s important that the masa not become too thin for molding by hand. Remove from heat, cover and set aside.
 
The fillings:

2 lb pork tenderloin boiled, cut into ½ inch cubes
2 lb boneless, skinless chicken breast boiled,
        cut into ½ inch cubes 1 cup defrosted frozen peas
1 cup green stuffed Spanish olives
1 cup raisins
2 medium carrots boiled and sliced
½ cup capers
2 bell peppers cleaned, seeded, and cut into thin strips
1 cup canned garbanzos
4 hard-boiled eggs sliced.
 
The leaves:

The banana leaves should be “cured” by placing them in boiling water with two tablespoons of olive oil for about 5 to 7 minutes. After the leaves have cooled, cut them into 4x6 inch rectangles
 
Assembling the tamales:

Place 4 or 5 tablespoons of the reserved masa in the middle of one of the banana leaf sections. Form the masa into a rectangular brick. Into the masa press 1 cube of pork tenderloin, 1 cube of chicken breast, 3 ­ 4 peas, 1 olive, 3­-4 raisins, 1 carrot slice, and 2-3 garbanzos. Garnish with a strip or two of bell pepper, a few of the capers, and a slice of boiled egg.

Wrap the tamale in two banana leaf sections, the one that’s already on the bottom and another placed on the top and secure the package with string from left to right and top to bottom tied in the middle. Drop the assembled tamales into a pot of boiling water and cook over medium high heat for one hour. Remove from the boiling water. Allow tamales to cool 10 to ­ 15 minutes before serving. Yields approximately 10 ­- 12 tamales. ¡Disfrute!


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San José, Costa Rica, Tuesday, Dec. 26, 2006, Vol. 6, No. 255  


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Assembly president will try to pass trade pact with 29 votes
By the A.M. Costa Rica staff

The Arias administration will try to pass the free trade treaty with the United States with only 29 votes.

This was confirmed over the weekend by Francisco A. Pacheco, the president of the Asamblea Legislativa in an interview published in La Nación.

A majority vote of 29 of the 57 deputies will give final say on the treaty to Sala IV constitutional court magistrates who certainly will be asked to rule on the legitimacy of such a vote.

Lawmakers last tried to do this with President Abel Pacheco's proposed tax plan. That was in the legislature that left office May 1. The Sala IV rejected the law, in part, because of the way it was railroaded through the legislature.

Pacheco's statement seems to be in opposition to Article 121(4) of the Costa Rican Constitution that says in part:
"Public treaties and international conventions which confer or transfer certain powers to a community legal order for the purpose of achieving common regional objectives shall require the approval of the Legislative Assembly by a vote of not less than two-thirds of its entire membership."

Two-thirds would be 38 votes.

The ruling coalition in the legislature can count on 36
votes. The Partido Liberación Nacional has 25 deputies. The Movimiento Libertario has six, and the Partido Social Cristiana has five. In addition, José Manuel Echandi of the Partido Unión Nacional has said he favors the treaty with reservations. He is the former defensor de los habitantes.

The Partido Acción Ciudadana has 17 members in the legislature. The party is uniformly against the treaty. So that leaves the fate of the treaty in the hands of three lawmakers, each from different parties.

One is José Merino del Río of Frente Amplio. He has made no secret of his opposition.

The vote comes down to Guyón Holt Massey Mora of Restauración Nacional and Oscar López of the Partido Accesibilidad Sin Exclusión.

Lawmakers are alloted seats based on the percentage of votes their party gets in the legislative election.

Pacheco said he would prefer a greater number of yes votes, but he did not explain clearly how the ruling parties would justify the action that seems to go against the Constitution.

The legislature reconvenes Jan. 8, and the controversial free trade treaty is the main order of business. A vote is expected sometime next month, although the Partido Acción Cuidadana is certain to raise judicial appeals.


Investigators say someone faked the signature of a judge to cancel mortgage
By the A.M. Costa Rica staff

Investigators raided the civil courts of San José Friday in search of evidence in a fraud case.

The case involves the misuse of special paper used by judges to publish their decisions. In the case Friday someone used this special paper to lift a mortgage on a piece of property by saying that the mortgage had been eliminated through a court decision.
The judges involved say they did not write the document which was delivered to the Registro Pública. The registry followed the supposed orders of the judge and canceled the mortgage, officials said. More than one such case may be involved. The cases also involve the falsification of a signature of a judge.

Investigators did not have far to go. The building containing the civil courts is a scant 200 feet from the Judicial Investigating Organization building.



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