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Resolving Spanish disputes through mediation - Video

A guide on resolving Spanish disputes in English by way of mediation.
Transcript: 

Hi. My name's Jonathan Eshkeri. In this video I'll be speaking about how to resolve Spanish disputes in English, quickly and inexpensively, by way of the tried and tested process of mediation. The Spanish civil justice system is notoriously slow. The Spanish court processes mean that lawyers aren't incentivised to settle before trial. There's a cheap and quick alternative to formal legal proceedings in Spain. You can have your dispute settled, perhaps in one day, via mediation in the UK.

So why should you mediate your Spanish dispute?

One important reason is that the Spanish courts are extremely slow. Typically, claims can take years to be resolved through the Spanish courts. The reason is that even though there are strict time limits imposed on the parties in a case, the courts themselves don't respect their internal time limits. The Spanish courts have more work than they can handle within a reasonable timescale and so it can take many months to get the courts to decide even very simple procedural matters. And once you do receive a decision, the Spanish courts are limited in the ways in which they can resolve the dispute. Normally there's a winner and a loser, but there's no guarantee that either party will win outright. To understand the reasons for the delay it's important to understand in a little more detail how the Spanish civil justice system works. 

Unlike in England & Wales and other common law jurisdictions, in Spain it's the court that has to serve proceedings on a defendant. A claimant, or their lawyer, may prepare a claim and submit it to court without delay, but the court may take months to serve the claim on the defendant. A defendant may have 20 working days to respond to a claim by submitting a defence, but once the court receives the defence it may take months to forward the defence to the claimant. The result is costly delays in resolving claims, leading to higher lawyers' fees, delayed compensation, and unnecessary claims for interest. There's a legal maxim that "Justice Delayed is Justice Denied", which means that not having access to justice within a reasonable period of time is equivalent to you being denied redress for your claim. Delays in the Spanish court system afect your access to justice and it's arguable that these delays seriously affect access to justice in Spain. A complaint to the court about the delay is likely to take longer to be heard than the claim itself. There's no way around the problem, which won't be resolved until there's the political will and a sufficient budget to overhaul the Spanish civil justice system. That'll take a very long time to come about.

Unlike in the UK, in Spain the parties to a dispute each have to engage a lawyer in order to litigate. In Spain you can't be a "litigant in person". Very often a "procurador", which in the Spanish litigation system is an administrative intermediary who communicates between the lawyer and the court, has to be engaged as well. While litigating in Spain is not as expensive as in England & Wales, there are still lawyers' fees and disbursements to be considered. In addition, the cost attributable to delay, such as interest due on delayed claims for compensation, can also be significant. Because legal costs are only awarded following a trial, Spanish lawyers aren't incentivised to settle early. 

Alternative dispute resolution or ADR is a term used to describe ways that parties in conflict can act to resolve their dispute without asking a judge or judges in a court to resolve it for them. ADR can be used alongside formal court proceedings, or on its own.

Mediation is an extremely effective form of ADR. In the UK just over 75% of mediated cases settle on the day, with another 11% settling shortly afterwards, giving an aggregate settlement rate of around 86%. An expert mediator, or a team of expert co-mediators, will have the experience and know-how to help you resolve your Spanish dispute quickly, effectively and economically, without the need for recourse to the courts, whether in Spain or anywhere else. When parties insist on going to trial they give up all control of the final result to a third party, which is the court. And the parties don't even get to choose who'll be the judge. A mediator, or a team of co-mediators, will help you and the party with whom you're in conflict to resolve the problem between yourselves, rather than leaving it to a judge. Mediation not only allows the parties to agree on a solution that works for them, it may involve a solution that would never be available to the court to impose. 

So then, how does mediation work?

The parties choose an independent third party mediator to help the parties resolve the dispute. Both parties have to agree on the choice of mediator. The mediator, who may be accompanied by one or more assistants, or co-mediators, is impartial and doesn't act for either of the parties. The parties meet at an agreed location. The mediation usually requires two rooms, but preferably three rooms, available to the parties for a day. The parties usually start off in their own rooms and then may meet together in one room at different stages throughout the day if that makes sense for everybody. However, it's not a strict requirement that the parties ever meet face-to-face during the mediation. The mediator moves from room to room as is appropriate throughout the day.

Most importantly, mediation is confidential and totally risk-free. The mediator and anyone assisting the mediator must keep everything that's said by each party confidential, unless that party authorises the mediator to release the information to the other party. That's a fundamental element of mediation. It means that the mediator can listen to the way in which each party is thinking about resolving the dispute and can make suggestions as to ways in which to negotiate a settlement with the other party, without revealing anything the other party has said, unless authority has been given for that information to be released. In addition, mediation is always "without prejudice". That means that during or after the mediation the parties can't repeat anything that the other party says or does in the mediation, in order to progress their formal court claim. Together, the requirement of confidentiality and the without prejudice rule make mediation an entirely risk-free environment.

If the parties reach an agreement then the details of that agreement will generally be written up and signed before the parties leave the mediation. So it's essential that a decision-maker for each party is present at the mediation. If that's not possible a decision-maker should be available on the telephone. Settlement's very often reached by the end of the day. So it's important to attend the mediation equipped to settle on the day. In order to settle, an agreement should be signed by the parties at the end of the day. So, it's preferable, although not essential, that each party has a lawyer with them to draw up the terms of the settlement agreement. A draft agreement can be circulated before the mediation takes place, which'll need to be amended on the day. Mediation offers both parties a real chance to reach a settlement that, while not ideal for either, is far preferable to losing a dispute, and infinitely better than paying huge fees to lawyers for the litigation and waiting many months, or over a year or two in some cases, to receive a court judgment. 

At E&G Mediation we're a team of mediators with expertise in various areas of conflict that typically arise across the globe, but with particular expertise in the Spanish civil and criminal justice system and with a deep knowledge of Spanish culture and language. Mediators in our team can mediate in English, Spanish and Catalan.

Often a mediator will work with a specialist assistant, sometimes known as a co-mediator. Sometimes each party will suggest a mediator and the two mediators will work together as co-mediators. The specialist assistant or co-mediator may have particular expertise in the subject area of the dispute, such as a surveyor who'll have specialist expertise in construction, or an accountant who'll have specialist expertise in tax. We ensure that, even where two mediators are used, the process doesn't become more expensive for the parties as a result.

It's for all these reasons that E&G Mediation will be an extremely effective solution for your dispute resolution requirements. We offer a free no obligation 20 minute confidential consultation on the telephone for our Mediation Services. Please contact me directly for further information and please see our website for information about the mediators in our team and the costs associated with mediation. Thanks for watching.

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