Towards a system of mediation in civil and commercial
Analysis of Directive 2008/52/EC of the European Parliament and Council 21 May 2008 on certain aspects of mediation in civil and commercial matters.
On May 24, 2008 was published in the Official Gazette of the European Union Directive 2008/52/EC of the European Parliament and the Council of 21 May 2008 on certain aspects of mediation in civil and commercial cross-border Member States shall adopt laws, regulations and administrative provisions necessary to comply with it before May 21, 2011.
This Directive represents further progress in the field extrajudicial dispute resolution, after the so-called Green Paper prepared by the Commission in April 2002, which already raised the mediation as an alternative to the best resolution of disputes.
The objective pursued right now is to create in all Member States an effective mechanism to control the mediation services, and at the same time ensuring the flexibility and autonomy of the parties, so that they can achieve agreements to resolve their conflicts and that these, if any, can be also executed. This, from the strictest confidence that should govern this type of process, and without prejudice to the parties concerned, in the absence of such agreements, they may resort to litigation or arbitration to defend their interests without detracting from them.
To do so, the directive calls on Member States to promote mediation in all its orders, especially in the court, promoting initial and continuing training of mediators and specialized agencies, and develop codes of conduct to serve as guidance in this matter.
In Spain to date, and excluding the family, there is no established tradition in the field of mediation, the first option to any dispute the courts. As an alternative to this approach, we find the arbitration, which has increasingly more popular, especially among large and multinational companies whose business or activity carries with it specific regulations and complex, requiring specific knowledge by anyone has to resolve a conflict in the area concerned.
Therefore, in our country the way ahead is still long to reach the goal to enact the directive, not by the introduction of the means to consider mediation much a reality in all areas, but because it will be necessary from the Administration, continuing firms and persons covered by this process, it acquires the knowledge that this is a really effective mechanism impartial and competent to solve conflicts.
In this regard, it must be remembered that both the judicial process, such as arbitration, not always offer advantages, and other problems that result in delays in obtaining judgments, cost of procedures, etc ... Ultimately
, at this juncture, it is not only advisable, but necessary a third way of conflict resolution ("Mediation"), which may precede any of the other two alluded to ("Jurisdiction" and "Arbitration"), allowing parties to reach settlements, with consequent commercial benefits of time and cost this would entail.
However, in the end, as in most cases, we should expect that this mechanism is put in place to assess and evaluate the results it delivers in practice. But without doubt, that the target deserves the joint effort of all fixed estamentos.objetivo deserves the joint effort of all levels.
(Source: expansion.com)
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