La mediacion civil y mercantil, en el contexto de la búsqueda de sistemas alternativos al judicial para la resolución de conflictos

Abstract

Mediation, as a paradigm of an alternative dispute resolution (ADR) system, has aroused great interest in the European Union and its Member States, not so much because of the principles and benefits that make it up and attribute it ?freedom, voluntariness, flexibility, greater speed and lower costs, promotion of the "culture of peace" as opposed to the "culture of conflict" or of "war" with which the jurisdictional route is identified, etc.? such as in the most practical (and scarce, when the costs of the administration of justice are affected) of improving access to justice by reducing the number of cases that come to its attention, which are excessive, so that it can be prompt and effective. Discarded by its own supporters the generalised acceptance of the recourse to mediation for its intrinsic virtues alone, in frank contradiction with some of their ideological postulates, and under the maxim of enlightened despotism, tout pour le peuple, rien par le peuple, the States succumb to the temptation, assuming the claim of certain circles, to impose mediation, in a more or less "mitigated" manner and with different degrees of coercion, as a procedural requirement for access to the courts. They propose old paths that have already been explored ?in Spain, as in the United States, or England?, that in the best of cases lead nowhere, and that there is no reason to go back and do without one's own experiences and those of others. These experiences, which are necessary to examine, together with the characteristics and evolution of the different procedural systems, do allow us to recognise as evidence a close link between ADR systems and civil proceedings; whether we like it or not, the former are always developed in the shadow of the latter, although they do not yet exist, because in the evaluation that each party makes of its possibilities and alternatives for the solution of a conflict ?costs, uncertainties, risks, efficiency, effectiveness, etc.? recourse to the courts will always be included, even if it is to rule it out. This obliges us to study mediation in relation to other ADR systems ?some with deep roots, such as conciliation or arbitration?, as well as to examine their informing principles and the figure of the mediator, without ever losing sight of their relationship with the civil process, which, faced with unjust demonisations, is another form of peaceful conflict resolution; and this is necessary if we want to know what mediation is, what to expect of it, and if, faced with the legislative proposals that try to impose it, we want to propose concrete measures that favour its acceptance by lawyers as another standardised resource, together with other alternative or complementary systems to the judicial route, for the resolution of their clients' conflicts. The reasons for the crisis of justice are many and complex, but the solution does not lie in hindering, penalising or preventing access to the courts, forgetting that their essential purpose is, yes, to resolve private disputes, but taking into account the truth of the facts and applying the laws that society has endowed itself with as a guarantee of its rights and freedoms. The so-called "paradox of mediation" ?its rejection despite its supposed excellence? is not resolved through its imposition, because there is no room for abstract dogmatisms to resolve concrete conflicts. Certain conditions are necessary for its effective implementation, such as prompt and effective justice, a configuration of alternative systems that, respecting their original spirit, allows them to be effective instruments, not merely dilettante, of the solution, and a configuration of some institutions of civil process that favours or at least does not hinder recourse to these systems.