MEDIATION: an alternative in time of pandemic

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Mediation is the process through which a third party, the mediator, helps the parties that have a conflict to achieve an amicable resolution by mutual agreement, through a structured procedure directed by the mediator and that ends by signing a an agreement of a contractual nature, binding between the parties.

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Mediation is the process through which a third party, the mediator, helps the parties that have a conflict to achieve an amicable resolution by mutual agreement, through a structured procedure directed by the mediator and that ends by signing a an agreement of a contractual nature, binding between the parties.

Of the principles of mediation, I consider voluntariness to be the most important, in the understanding that, if there is no willingness of the parties to submit their conflict to mediation, mediation would be unfeasible, without prejudice to the obligation to initiate when the parties have consented to submit your dispute to mediation.

Acceptance of the parties to the mediation and to the medication agreement itself must be voluntary, under penalty of possible challenge due to vices or defects of the consent, which would lead to the cancellation of the agreement itself.

I identify myself with mediation and arbitration, although if I chose one, I would choose mediation because I understand that mediation is more immediate, agile and even less expensive than arbitration. For this reason, I would recommend a mixed model in commercial relations, that is, that contractually includes several mechanisms for conflict resolution: at the first level, the negotiation of the parties, with the understanding that the parties in good faith will try to achieve between them a agreement; secondly, if said agreement had not been reached, they may request the intervention of a third party to mediate between them to reach the resolution of the conflict through mediation; and third level; If the resolution of the conflict had not been possible, the parties would submit to arbitration.

In international trade, I think the mediation model is more convenient because the intervention of a neutral third party reduces understanding difficulties for cultural or language reasons. Additionally, mediation is an agile process and agility is necessary to avoid the impact and economic cost that the passage of time entails in international transactions.

In this context that companies operate more and more electronically and more currently with the Covid-19 crisis, on-line Dispute Resolution (ODR) will have a greater role due to its immediacy in actions, avoiding travel costs. However, one of the fundamental elements for a successful mediation is direct contact with the parties. The mediator must establish a relationship of trust with the parties so that the parties trust his intervention and feel comfortable that the mediator's work will be neutral and aimed at achieving the best agreement that resolves their conflicts. As mediators we have a challenge in achieving the above in an online mediation because the personal relationship is colder as there is no direct contact between the parties and it is possible that for this reason, the mediation process takes more time.

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