By Juan Diego Mata
Why, in many cases, a sentence is not enough and an agreement becomes essential
1. The problem: resolutions that do not bring peace
There is something profoundly paradoxical about the contemporary judicial system: we obtain judgments, but we don't always obtain solutions. That is, the conflict is resolved on paper… but it remains alive in reality. And at that point—uncomfortable, frequent, and often overlooked—mediation ceases to be an alternative and becomes, quite simply, the only effective solution.
Because it's worth stating bluntly: a court judgment is not synonymous with compliance. In the daily practice of any law firm, final judgments accumulate that, for a multitude of reasons, are never fully executed. These include lengthy enforcement proceedings, strategic insolvencies, passive resistance from the convicted party, or simply a lack of genuine willingness on the part of the parties to resolve the dispute. The result is well-known: the litigation evolves, but it doesn't disappear.
Judicial enforcement—that great forgotten element of the process—becomes a second battle. And often more complex than the first. Incidents multiply, deadlines are extended, and, meanwhile, the original conflict festers. The system has formally fulfilled its function, but has materially failed in its essential purpose: to pacify the legal relationship.
2. Mediation as a practical response
This is where mediation begins to gain ground, not out of idealism, but out of pure practical necessity.
2.1. Compliance, flexibility and co-responsibility
Mediation introduces an element that the judicial process, by definition, cannot offer: the will of the parties as the driving force behind compliance. When an agreement arises from the self-interest of those in conflict—and not from an external imposition—the likelihood of compliance skyrockets. Not by magic, but by logic.
In contrast to the rigidity of a court ruling, mediation offers flexibility. In contrast to imposition, it offers shared responsibility. And in contrast to forced execution, it offers voluntary commitment. It may seem obvious, but in the legal world it isn't always: people are better at fulfilling what they have decided than what has been imposed upon them.
2.2. Addressing the real root of the conflict
Furthermore, mediation allows us to address something that the judicial process tends to ignore: the true root of the conflict. Because, let's be honest, many disputes are not solely legal. They are economic, emotional, strategic, or sometimes simply communicative. The judgment resolves the legal issue, yes, but it leaves the rest of the problem untouched—if not worsened.
It is no coincidence that certain recurring conflicts (corporate, family, long-term contractual) generate a chain of lawsuits. One case is won… and the next one is filed. In this context, mediation not only resolves a specific conflict, but can also prevent future ones.
3. Limitations of the exclusively litigious model
Of course, mediation is not a panacea. Not all conflicts are suitable for mediation, nor are all parties willing to negotiate. But what is becoming increasingly clear is that the exclusively litigious model has structural limitations that are difficult to ignore.
4. Context in Spain: drive towards MASC
In Spain, the recent push towards alternative dispute resolution (ADR) mechanisms is not accidental. It responds to an objective reality: the judicial system cannot, on its own, effectively absorb and resolve all the conflicts that come before it. And even less so can it guarantee their effective implementation.
This is where mediation takes center stage. Not as a substitute for the courts, but as a necessary complement. As a preliminary filter in many cases, but also as a parallel route even in advanced stages of the proceedings.
5. Change of mindset and role of the legal professional
The irony—if you will—is that for years mediation has been perceived as a “soft,” almost residual solution compared to the supposed forcefulness of a court ruling. And yet, experience demonstrates just the opposite: the strongest solution is not the one that is imposed, but the one that is actually implemented.
Giving the parties a leading role is not a concession, it's a strategy. It means recognizing that the conflict belongs to them and that, in many cases, they are in the best position to resolve it effectively. In this context, the role of the legal professional doesn't weaken; it evolves. It shifts from being solely a litigator to also becoming a conflict strategist.
And this requires a change of mindset. Because it's not about choosing between litigation or mediation, but about understanding when each tool is appropriate. Persisting in the systematic judicialization of conflicts, even when it's known that enforcement will be problematic, is not legal rigor; it's inertia.
Ultimately, the question is no longer whether mediation makes sense, but when it becomes essential. And the increasingly common answer is uncomfortable but clear: when the goal is not to win a court case, but to resolve a conflict.
Because, ultimately, success isn't measured by rulings issued, but by conflicts actually resolved. And in that arena, mediation—with all its apparent discretion—is demonstrating an effectiveness that the traditional system, on its own, doesn't always achieve.
Would you like to dedicate yourself professionally to mediation or specialize in one of its branches? You've come to the right place. EIM We offer a wide variety of training courses to meet your most ambitious goals.
