The ordinary jurisdiction has been sharing space in society for several years now with new ways of dealing with certain types of minor conflicts (civil, commercial, family, community, neighborhood conflicts, etc.).
These are mediation and arbitration, alternative means of conflict resolution that have one factor in common: they avoid resorting to a conventional judicial process, where the decision is made by a judge.
These new alternative avenues are characterized by being born from the parties' own will, in addition to significantly shortening the slow and costly traditional judicial processes, resolving disputes between the parties more quickly and effectively. Although, as we will see below, they also present differences.
What is arbitration?
Arbitration is a procedure similar to a trial in which the disputing parties decide, of their own free will, that a certain conflict be resolved by a third person (called an arbitrator instead of a judge), through a decision binding on both (not called a judgment but award).
There are two types of arbitration: legal and equitable. The choice of the arbitrator corresponds to the opposing parties and the dispute must be resolved within a period of six months (extendable to two more months). It takes much less time and the parties can also agree to reduce the deadline.
It is Law 60/2003, of December 23, on Arbitration that regulates the scope, scope, subjects and effects achieved by arbitration within the Spanish legal system.
What does mediation consist of?
Mediation, although it has certain similarities with arbitration such as the will of the parties and the expediting of procedures over time, really differs greatly from arbitration, since the bases from which it is based are different.
In a conflict handled through mediation, the third person is neither an arbitrator nor a judge, but a mediator. Its role is not to make a decision about the parties in accordance with the law, but to facilitate communication and the negotiation process between the parties, who voluntarily decide to resolve their problem through mediation.
Mediation turns out to be an excellent option for cases in which the parties seek to resolve their conflicts with some urgency and in a confidential manner. As the main advantage, the agreement that arises from mediation will be much more satisfactory for the parties and lasting over time, since it arises from consensus, understanding and mutual agreement.
The regulatory law in this area is Law 5/2012, of July 6, on mediation in civil and commercial matters, and establishes flexibility and respect for the autonomy of the will of the parties.
Mediation does not exclude arbitration. If a conflict is not successfully resolved through mediation, it is possible to subsequently resort to arbitration or litigation, since once the mediation process is completed the parties are free to take the actions they consider necessary.
Differences between arbitration and mediation
- In arbitration, the arbitrator has the duty to resolve the dispute; On the other hand, in a mediation, the figure of the mediator is responsible for bringing the parties' positions closer together, favoring mutual agreement.
- In arbitration, the parties are obliged to abide by what the arbitrator decides; However, in a mediation, the parties themselves are the owners of the decision to reach a consensus or not.
- In arbitration, the award issued by the arbitrator has its own executive effects (just like a court ruling), while in mediation, the parties can attribute executive effectiveness to the agreement by elevating it to a public deed.
