The changes in social and professional dynamics following the pandemic have modified all the ways in which they were naturally practiced. legal proceedings. Maintaining access to justice has been one of the most pressing tasks in these times and has required not only the use of technology, but also the rethinking of simple solutions before initiating formal jurisdictional procedures.
As part of these intermediate solutions that make it possible to reach an agreement at this time without having to resort to the traditional legal mechanisms, i.e., before the competent courtsAlternative means of conflict resolution, such as mediation and arbitration, are available. Both figures, as negotiation mechanisms, can be very useful to bring disagreements or conflict situations to a successful conclusion, however, it is necessary to be clear under which situations they are applicable and what their scope is.
In mediation and arbitration, an impartial third party is used to facilitate consensus between the parties, either individuals or companies. Both procedures are voluntary, i.e., those involved must agree to their application and their purpose, with the differences that arise between them, is to reach an agreement without having to resort to the courts, which entails a greater investment of time and resources. It is important to note that the complexity of some cases does not admit this type of alternative. Likewise, there are situations in which the parties have provided in a contractual clause the mode of dispute resolution, conferring exclusively that in such situations the courts will be the ones to resolve their differences.
Differences between mediation and arbitration
Although both alternatives appear to be the same, they differ mainly in terms of the performance of the third party. interfering in the conflict. In the case of mediation, the mediator is an independent subject who does not make decisions, but whose function is limited to serve as a bridge or link for the understanding of the parties and thus reach an agreement that resolves their differences. It is not the mediator's task to impose positions, but to facilitate negotiations. In arbitration, the arbitrator is empowered to make decisions that must be complied with by the parties involved in the conflict.
The two mechanisms, as mentioned above, can be used in certain cases where there is no need for the final word of a judge to determine liability. As recommended by the European Arbitration Association, these systems comprise alternatives that would currently relieve congestion in the global justice system, in the wake of the pandemic caused by the Covid-19 virus. It is estimated that more than one and a half million legal matters of companies are paralyzed due to the current situation, generating an approximate cost of 4,000 million Euros, calculated by the money immobilized to the companies as bonds or fines.
In some countries, such as Spain, measures have been decreed to proceed at the legal level, once the declaration of the state of alarm and its extensions are no longer in effect. This approach seeks to streamline the judicial activity avoiding the collapse of the justice system, especially in the civil jurisdiction, when normality returns. In this sense, mandatory mediation in the civil order has been proposed.
In the Venezuelan legal system, Article 256 of the Constitution of the Bolivarian Republic of Venezuela provides as followsThe law provides that the legislator must promote alternative means of conflict resolution, expressly mentioning arbitration, conciliation and mediation among them, so that each particular case should be considered, mainly those between individuals, to verify the feasibility of the use of such mechanisms.
At Alan Aldana & Abogados, we have a team specialized in litigation matters to guide our clients regarding alternative dispute resolution mechanisms.
Sources consulted:
- lawyerpress.com
- lavanguardia.com
- confilegal.com
