The next mediation. Risk for mercantilist lawyers? And for arbitration?
Mediation is still little known and little used in Spain in the commercial sphere. Nevertheless, a global perspective allows us to deduce that mediation, as a way of solving many business disputes, will develop and eventually take hold. Our arbitrators and commercial lawyers may feel apprehension at this prospect. It will undoubtedly mean changes in their professional life. They will need to expand the range of solutions offered to clients in order to find the most suitable to each conflict. Ultimately, these changes can be beneficial for these professionals, potentially including a more satisfactory legal practice.
Introduction: between skepticism and suspicion.
The myth of its uselessness.
The myth of the displacement and harm of lawyers.
The difficulties of adaptation in Spanish mercantile law.
- -The clients and, still, the majority of the companies, are unaware of the mediation, so they do not demand it. And the easiest for lawyers is not to leave their comfort zone, where despite the inconveniences they can feel safe stepping on familiar ground.
- -As a new and less well-trodden pathway results, there may be a greater fear of the lawyer to be held accountable for unsatisfactory results. Actually that risk is scarce, because the client will maintain control over the final result. And this potential dissatisfaction, due to expense or loss of time, will be reduced, where appropriate, to some cases in which an agreement is not obtained. But the ignorance of the figure fosters this perception.
- -For the same lack of social knowledge, the lawyer, even convinced of its usefulness, may have qualms to propose this means to the other party. Or even the fear that the proposal will be interpreted as an implicit recognition of the legal weakness of their position before the courts.
- -Especially in the mercantile field we are focusing on, it can be difficult to know how to find an adequate mediator for that conflict, in a service market as immature and saturated as this one, where mediocrity and lack of practice abound. And, as we have insisted, mediating well is very difficult.
- -It has also been pointed out the fear of some lawyers to lose their clients by putting them in contact with other professionals who, in addition to being mediators, can also be lawyers. The proper understanding of the role of each will end up weakening that suspicion. In addition to that a dishonest act of the mediator in that sense would not have much travel as such. But today still that prevention can have an added weight to the natural distrust of the unknown.
- -To this is added the aforementioned fear that using this route instead of the judicial one supposes for the lawyer a reduction of his income.
The option of lawyersa.
The impact on arbitration.
Blanca Iturmendi Álvarez. Lawyer and mediator
Fernando Rodríguez Prieto. Notary and mediator