Mediation as a tool in contractual disputes

Contractual negotiation is inherent to commercial traffic and as a direct consequence, disagreements over its content, compliance or resolution thereof; The businessman or the consumer are usually the protagonists of these contracts and we must not forget that the same time they invest in their preparation should be invested in the management of any disputes that arise as a consequence of their development.

Having said the above, the possibility arises that mediation has a role at that moment, that is, that mediation takes center stage at the time of resolution of conflicts that arise under the umbrella of contractual effects.

A priori, as occurs in the contract, mediation is a free option that the parties can encourage and enhance and therefore, it is advisable that the parties include it in the contract with which they are bound because as one more clause, the parties will be obliged to resolve any future conflicts that arise through mediation.

With this proposal, the parties are obliged to participate in mediation prior to initiating any judicial procedure for any controversy that arises between the parties.

With this clause we achieve an immediate consequence: the birth of a dispute does not necessarily lead to a commercial breakup, but rather it can mean growth between the parties and strengthening of the relationship between them. However, it brings other organizational consequences for commercial companies (not judicializing the activity has a positive impact on the economic plan and significantly reduces the cost of conflict within the accounting of any company).

In the case of contracts with individuals, the obligation to participate in a mediated process for the resolution of the conflict gives a different identity to commercial entities and, if we think of large financial entities, for example, favoring this type of processes significantly improves the corporate image in front of present and future clients.

In parallel to the benefits, an issue raised by the insertion of mediation as a tool in contractual disputes is the assumption of its cost and this will be directly connected to the type of contractual relationship we find ourselves in, that is, it is not the same. a contractual link between companies, that companies with individuals than a contract between individuals.

As an example, a rental contract in which the parties agree that any future conflict that may arise regarding the rental itself will be submitted to mediation and that the costs will be borne by the parties equally (let us not forget that failure to comply with any contractual clause may result in the birth of responsibility for the parties, including the mandatory submission to mediation for the parties before initiating any judicial process)

In conclusion, the benefit of including the mediation in contractual processes brings benefits for all parties both in the economic environment and in the image of the parties that participate in these contracts and as a proposal, in contractual legislation, mediated conflict resolution should be included on a mandatory basis through conflict management tools such as mediation.