Mediation makes it possible to resolve conflicts out of court. The parties themselves, with the help of a professional mediator, can find a mutually satisfactory solution.
It is a proven and effective method. It is also characterised by the fact that it is voluntary, which makes it more suitable for finding a solution: those involved talk, negotiate and reach the agreements they want without anyone (neither a judge nor an arbitrator) imposing anything on them. Neither does the mediator, who will only facilitate the reaching of such an agreement if parties wish to do so.
This characteristic (mediation is voluntary) has perhaps meant, in a mentality like ours, an obstacle: since nobody imposes it on me, what’s the point? I don’t even try. And if I have to claim something, let the judge give it to me. And also recognise that I am right.
This way of thinking suits us lawyers very well because we make a living out of other people’s problems. And the more and bigger the trouble, the better.
And that’s a pity, because mediation works. There was already an attempt to promote mediation with a draft bill that failed. It demanded that mediation should at least be attempted in certain civil and commercial court proceedings before going to court. But the bill failed and nothing changed.
Now it seems that something similar is being tried again. But only similar.
With the excuse that the courts are very clogged, and even more so now with covid, one of the measures to be adopted is the Appropriate Methods of Conflict Resolution (MASC in Spanish, or for the old-timers, ADR for Alternative Dispute Resolution). According to this new idea, it is intended to make it compulsory (a procedural requirement) to try one of these methods before filing a lawsuit in court. To use “any type of negotiation activity” (“any”, I emphasise), among which the rule lists some: mediation, private conciliation, confidential binding offer, independent expert opinion, and any other non-typified method, including negotiation by the parties or their lawyers.
In this way, the rule trusts, if the dispute is settled in an alternative way, the parties involved would be spared the whole judicial procedure and the proceedings and the burden on the courts would be reduced. That is why many people, particularly mediators, are jumping at the chance. This is not my case. As a lawyer, negotiator and mediator, I believe that the way it is worded does mediation a disservice. I do not know if it will be the final straw that was needed to relegate it to the forgotten drawer where many want to see it, but it will undoubtedly contribute to this.
In the Project, all these methods are put on an equal footing. Any of them will be valid to meet the procedural requirement: if the parties have negotiated or if their lawyers have done so, it will be sufficient. In other words, more or less the same as now, except that it will have to be justified when filing the claim (“negotiation activity documented”). But no, it does not make mediation compulsory, as some former minister for Justice has hastened to write.
And the curious thing is that I do not remember a single case (more than 25 years as a lawyer) in which, before a lawsuit was filed, there was not at least one attempt, even if it was a simple letter, in which the possibility of reaching an agreement was opened. Discussions, conversations, negotiations between lawyers have always taken place and for that there was no need for a rule of procedural efficiency.
If the rule also provides for the possibility of mediation, that’s fine. As in fact it exists now and few use it. Only now, mediation is going to be diluted among a set of other equally valid methods. It is thus placed on the same level as the rest, although perhaps as the least recommendable, given that it is less well known than negotiation and because, of all the methods envisaged, it is the only one that has a specific law that should be referred to and respected. It will be the most formal (mediator, sessions, minutes) and therefore the least desirable.
All in all, I would like to hear other arguments. In the meantime, does anyone really think that, since there are different methods, parties who want to fight in court are going to choose mediation that has not worked? Is anyone really going to try to mediate if “negotiating” (as has been done for centuries) will meet the requirement? Does anyone really think that the way the draft is written, it is going to relieve the courts?
In my opinion, either it will be much more concrete and go back to the idea of the mitigated mandatory nature of the previous draft, or we will have simply added one more formal requirement (yet another!) that will logically delay and make the whole procedure more expensive.