María del Pilar Galeote. Professor. IE Business School
7 September 2010
The need to speed up court procedures, new technologies and a lack of supranational bodies is leading countries worldwide to view mediation as a feasible alternative.
Alternative dispute resolution (ADR) systems include negotiation, mediation and arbitration. We focus here on mediation since it is currently at the fore in different legislations. By mediation, we understand the alternative system where two or more parties are helped by a third party that listens to them and accept the solution for their problem as proposed by said third party. It is a step further in the negotiations between the parties without reaching arbitration, since, unlike the arbitrator, the mediator is not competent for imposing a solution on the parties in dispute. The main reasons why the various legislations have introduced mechanisms like mediation include the need for speeding up procedures at courts and tribunals, the confidentiality that is so necessary in many areas, the importance of new technologies in contractual relations and the absence of a supranational body that can solve disputes between elements that correspond to different legislations. These are some of the basic reasons behind the increase in mediation and it has been constituted as a new voluntary, self-service system; however, as has been shown on many occasions, mediation has always existed.
Different legislations are connected to mediation in different ways and to different degrees. Mediation as we know it today started in the United States in the 1970s. At that time, the United Kingdom started to introduce mediation in different areas and its influence spread across different countries in Europe. In Latin America, some countries do the same; in Argentina, albeit only in Buenos Aires, it is mandatory insofar as claimants have to attempt mediation in certain types of disputes before filing a claim with the courts. Furthermore, in certain states of the USA, such as New Jersey, Texas, Missouri and Colorado, legislation forces lawyers to advise their clients on the use of alternative dispute resolution mechanisms. In Europe, Directive 2008/52/CE of the European Parliament and of the Council, dated 21 May 2008, on specific issues of mediation in civil and mercantile matters, requires the implementation of mediation in the member states. Accordingly, in countries like Spain, the Mediation Bill is being discussed for civil and mercantile matters and, for the first time, mediation is being introduced in the area of jurisdiction.
As becomes apparent, mediation would appear to be gaining ground and is no longer presented as an alternative to justice, but rather as an alternative justice in which the independence of the parties´ wills governs the process from beginning to end. Now we turn to the current importance of ODR (not the ADR we have just seen, but rather Online Dispute Resolution).
In both ADR and ODR, we underline the importance of the legislator paying maximum attention and taking painstaking care with the points we consider essential when correctly legislating mediation: the need for establishing mediation as a mandatory mechanism in certain established cases; the right training for mediators in negotiation and communication so that mediation does not become a mere requisite or formality; and the need for the mediation procedure, once underway, to suspend the statute-barring or expiry of actions.
These will be the minimum requirements that need to be considered by the legislator in order to favour the implementation of mediation in our society.