How can we better manage conflicts?
The entry into force of the Organic Law 1/2025, of January 2, on measures regarding the efficiency of the Public Justice Service, This has brought about a significant change in how certain civil and commercial disputes are addressed. The requirement to resort, generally speaking and except for legally established exceptions, to a appropriate means of dispute resolution (ADR) Before filing a lawsuit, it requires professionals and citizens to incorporate a preliminary phase that until now was not always part of our procedural strategy.
Given this new scenario, there is a risk of considering mediation as a mere bureaucratic formality: a requirement that must be met in order to later go to court.
However, reducing mediation to that function means wasting a large part of its potential.
From procedural requirement to strategic tool
It is true that the reform has given undeniable procedural importance to prior negotiation. Proof of the attempt at negotiation can be decisive for the admissibility of certain claims, and therefore, its proper execution and documentation acquire a relevance that cannot be ignored.
But the goal should not be limited to obtaining a document that proves we have tried to negotiate.
A properly planned mediation offers the possibility of better understand the conflict before taking it to court., identify the true positions of the parties and analyze whether there is reasonable room to reach an agreement.
From the lawyer's perspective, this phase can also provide particularly useful information for assessing the strengths and weaknesses of the case, anticipating the main points of contention, and more precisely defining the strategy to be followed if going to court becomes unavoidable.
Resolve the conflict, not just the procedure
One of the main advantages of mediation is that it allows the scope of the negotiation to be broadened beyond what a judge could strictly decide.
In legal proceedings, the parties' claims are necessarily constrained by procedural rules and the legal consequences permitted by the legal system. In mediation, on the other hand, the parties have greater leeway to develop solutions tailored to their specific circumstances.
This is especially relevant when there is a relationship that needs to be preserved: corporate conflicts, relationships between companies, contractual disputes, problems between partners, family disputes or certain professional relationships.
A court ruling can determine who is legally right. Effective mediation, however, can help find a solution that allows a relationship to continue, a relationship that might otherwise be irreparably damaged.
Time, costs and control over the outcome
There is also an eminently practical issue.
The length of legal proceedings, the costs associated with their processing, and the uncertainty inherent in any litigation mean that reaching a satisfactory agreement can have significant economic value.
Mediation allows the parties themselves to maintain a high degree of control over the solution. Instead of a decision imposed by a third party, they determine what concessions they are willing to make and under what conditions the conflict can be resolved.
This does not mean that any agreement is preferable to a legal proceeding.
There will be disputes where positions are too far apart, legal issues requiring a court ruling, or situations where there is simply no genuine willingness to negotiate. Mediation should also not become a means of forcing detrimental agreements.
That is precisely why it is essential to analyze each issue individually.
The importance of the lawyer in mediation
The widespread use of ADR methods does not diminish the importance of legal advice. On the contrary, it can reinforce it.
The lawyer must help the client determine what they can reasonably obtain through negotiation, what the risks are of proceeding to court, and where their limits should be set.
Negotiating effectively requires knowledge of the applicable law, but also an understanding of the economic and personal interests behind the conflict.
Therefore, the success of mediation should not be measured solely by the existence of an agreement. Even when an agreement is not reached, the process can still serve to clarify positions, reduce contentious issues, and better prepare for potential legal proceedings.
A new culture in conflict resolution
The real challenge posed by the reform is not simply to incorporate a new requirement before filing certain claims.
It consists of changing our approach to conflict.
If we understand ADR mechanisms solely as a legal obligation, we will likely create new bureaucratic procedures. If we use them as genuine negotiation tools, we can achieve better-prepared processes, more efficient agreements, and solutions better suited to our clients' real interests.
We will delve deeper into all these issues on September 15th, at 5:00 PM, in the webinar that I will have the opportunity to give together with the International School of Mediation.
We will analyze mediation from an eminently practical perspective, paying special attention to the opportunities offered by the new procedural scenario and how we can use it not simply to fulfill a requirement, but to better manage and resolve conflicts.
Because perhaps one of the main changes introduced by this new stage is precisely that: to stop asking ourselves only what we should do before making a claim and start asking ourselves What can we achieve before we have to do it?.
Juan Diego Mata Chacón.
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This content is designed both for those already working as mediators and for those considering training and taking the leap into this booming profession. If this is your case, you can learn more about our Expert Course in Civil, Commercial and Family Mediation, accredited before the Ministry of Justice.
