Alternative Dispute Resolution
People and companies may wish to face and solve their differences out of a judicial process, for this is frequently long and expensive in Spain. “Alternative dispute resolution” refers to any procedure by means of which parties involved settle their conflict outside the courtroom.
In Spain, traditional resistance of people, companies and legal advisors to this option is nowadays turning into widespread acceptance of the use of these alternative techniques in all areas, which have been supported and promoted by the Government in recent years. It is also generally accepted that alternative dispute resolution procedures are faster and cheaper than Court processes.
The most important alternative dispute resolution systems in Spain are arbitration (which includes international arbitration) and mediation. They have in common the voluntarity of the parties to choose this way of solving their differences. Conciliation is also available for parties, but in certain legal areas (for example, labour law), its use prior to filing a formal legal action is mandatory.
Arbitration
In order to resolve any dispute by arbitration, parties involved must previously sign an “arbitration clause” (agreement to resolve by arbitration any future dispute). By means of this process, a third person, previously chosen by both sides, impose a resolution based on the evidence and hearings given along a simplified version of a trial. The resolution is binding and definitive (no access to appeal) and it is enforceable before the Courts.
The arbitrator may obtain judicial help when special evidences must be obtained or when preventive measures must be taken.
Mediation
The purpose of this procedure is helping parties in conflict to reach a convincing agreement for both sides, rather than deciding the case. Mediators are professionals trained in negotiation skills who give neutral advise during the mediation and facilitate parties to come to an unsderstanding. Mediators can propose an agreement to the parties, which they may accept or reject. Mediation is used for a very wide gamut of conflicts and situations, but in Spain has proven to be specially effective in family and community breaches, what has led regional authorities to rule mediation in these areas and to promote institutional mediation. Again, it is a much cheaper and swifter procedure than those followed at Courts.
In case of agreement, the parties involved and the mediator draw up and sign a document that is as enforceable as any other written contract, and has the same efficacy and validity.
Carolina Lagares
clagares@lagares-abogados.com
Member of Eurojuris España
Tags: alternative dispute resolution, alternative dispute resolution procedures, alternative dispute resolution systems, arbitration clause, arbitration Spain, conciliation Spain, Eurojuris España, judicial process, mediation Spain
