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.

Relationships in which people intervene will lead, sooner or later, to major or minor conflicts. In business relationships, companies try to minimize in their contracts (when they sign them) what can happen in case of discrepancies. But, even if these are essential, it would be naive to think that a contract will give us the solution to any conflict. No matter how many eventualities have been foreseen, the management of the conflict will always go further. How to act, then? How to be prepared when the discrepancies begin? I will present some guidelines from our experience managing and helping to avoid and to resolve conflicts. And although I’m going to focus on those that occur between companies (or among the people of those companies), what I will say could be extrapolated to almost any type of difference.

1. Identify that you are facing a potential conflict

A conflict arises when there are expectations that are not met: the agent seems not to respond as expected, the entrepreneur does not provide what was promised, the product stops covering expectations, the service is no longer adequate. Or we simply want to change the supplier, replace the distributor… the list is endless.

In any of these situations the conflict is just around the corner and, although it is necessary to realize it as soon as possible, it is not always perceived with clarity. Any discrepancy is possible source of conflict and the first thing necessary is to verify where we are and its severity. The steps we will take immediately after will depend on this verification and the time it occurs.

2. Do not react impulsively

In a situation of potential conflict, the most usual is to react: grab the contract and try to see where I am right, what can I argue to reaffirm my position, how to impute responsibility to the other party. But when we react impulsively we renounce our capacity for conviction and persuasion. For many reasons that we think we have, a relationship or a contract have multiple interpretations and nuances that can vary the conclusions and the results.

When a manufacturer of bakery products decided to change their distribution system (potential conflict), he sent all his wholesalers a letter “resolving the commercial relationship” that they maintained (reaction). With a letter of just over two lines, he dug his own judicial grave since the judges considered that what was resolved was a distribution contract and not the annual price conditions that applied, and recognized the wholesalers a goodwill (clientele) compensation.

When a footwear manufacturer, in a change of commercial strategy (potential conflict), unilaterally resolved a long-term agency contract by imputing a supposed inactivity of the agent in his country (reaction), he did not take into account that in other comparable countries the situation was identical and that the decrease in sales was due more to the generalized crisis than to the poor performance of the agent. The alleged resolution for fair cause was not admitted and he had to pay compensation.

When another manufacturer of components for boats was not satisfied with the performance of his agent (potential conflict), he simply decided to sell his products through another representative (reaction) without taking into account the exclusivity granted to the first one and without having warned him properly.

All these reactions are understandable, but none was sufficiently thought out and in all cases we have had headaches as lawyers when defending them before judges and courts. An advice and previous strategies would have avoided many difficulties, would have saved much time and money to the parties and would have had a result without a doubt much more satisfactory.

3. Seek advice immediately

Although nobody better than you knows your business, nobody better than someone external can help you to manage with an adequate perspective the conflicts that are arising.

We have all certainly negotiated and we all feel legitimized to do so, but we are not always able to identify confluent interests or to manage the emotions (our own and those of others) that any conflict entails. External aid is essential, and the sooner you get there, the better.

If the footwear manufacturer imputes to the agent his loss of confidence in the product and a poor performance in the territory and on that basis he decides to terminate the contract, the temptation of the “injured agent” is to respond to the principal with sales figures, arguments, explanations about the clients, to impute the principal’s internal disorganization… Those answers and that information, even though they may be true, could turn to the agent if, for example, he admits something that he later regrets, he gives information that the entrepreneur did not have or he recognizes his weaknesses. And that happens almost always! In addition, it is very frequent that in this phase the parties involved are the ones in the conflict acting on their own, without any objective help, and committing, most of the time, more errors than are desirable.

However, from our experience, we have observed that an external consultant to the relationship and with sufficient competence in the matter discussed, in the potential litigation and its possibilities, and with the skills to negotiate objectively, can suggest a strategy, help to understand the interests that exist, how to approach them better and which method of solution is best suited

4. Design an action strategy

Indeed, facing any potential conflict, in any situation of discrepancy, as insignificant it may seem initially, the vision in the medium or long term from the first moment in which it originates is crucial. It does not do any good to react if it is not within the framework of a properly strategy designed in advance.

I like to remember those letters that were sent demanding a debt of 1,000 and to which the alleged debtor replied that they were not 1,000 but 900 offering a recognition of the debt that, otherwise, would have been more difficult to prove.

A response to a letter in which we are accused of a breach may be the best or the worst ideas depending on what the next steps are. What are the true interests beyond the concrete position at that time? Should I continue to maintain the commercial relationship? If it is not adequate, is it possible to reform it? Is it still viable? Am I interested in resolving the conflict as soon as possible to continue dedicating myself to my productive / commercial activity? What perspective of time, money, energy, reputation … entails embarking on a judicial / arbitral process? What alternative ways are there? These are some of the questions that every person has to ask themselves in order to strategically solve the conflict.

5. Do not threaten, act with a head.

Normally when the conflict has begun or when it is in its early stages, it is usual to threaten to go to court (warnings of the type “we will have no choice but”, “we will be forced to” are the formulas that hide such reaction). This is usually a bad idea. First, because threatening —depending on how it is done— could even be a crime. But, in addition and above all, because it usually closes more doors than it opens.

The solution to the conflict may come, indeed, from a judge (or arbitrator) who imposes it, but it is not the only way and probably, if we follow this path, it will not leave anyone happy. The negotiation assisted from the beginning by a professional that helps to alleviate the emotional burden and to know alternatives, or the mediation (the intervention of a neutral professional that helps to understand interests and bring positions of the parties so that they themselves, with the mediator’s help, can find a solution) are almost always better solutions. The threat will put the other party on a defensive position and in a sort of way it constrains us to comply with what is threatened so as not to show weakness. However, the action framed in a strategy according to our interests (negotiated or mediated), will place us in the best way of solution.

6. And do not let the conflict grow: talk and listen.

And if “threatening” with legal actions adds blockage to an already difficult situation, talking (and “talking” is usually always better than “writing”) clears the way even more. And together with “talking” nothing better than “listening” and to do it actively. It is shown that in most conversations, discussions or even negotiations, we act more aware of what we want to say, how to counterargument or convince, instead of really understand what the other party proposes or of trying to look for common spaces.

Conflicts are not always definitive (ending the commercial relationship), and very often they are merely circumstantial or partial (unpaid bills, undelivered products, erroneous executions, lack of accountability). In these states, it is much easier to establish new bases or conditions, to find out where the discrepancies are and to solve still minor conflicts, or preventing them from becoming more complex. The help of a loyal advisor who understands the interests to safeguard and collaborates in the determination of the steps to take, is, again, essential. I would dare to say that, on principle, you have to distrust who advises you to go directly to the litigation or confrontation.