Jose Antonio Garcia Alvaro from ADR Resources (ARyME) reports:
In Spain, Catalonia has always been a step ahead of the rest of the country when it comes to mediation. Catalonia was the first region in the country to pass an act regulating family mediation, and the first ever to legislate civil mediation at large. Valladolid (a province of the larger Castilla-León region) follows suit, and has decided to pilot-test a court-annexed program on civil mediation.
Hon. Feliciano Trebolle, President of the Audiencia Provincial of Valladolid has spearheaded this project, and Ms. Margarita Uría, of Spain’s General Council of the Judiciary, has supported it enthusiastically.
What is the point of this pilot project?, What does it intend to accomplish? As a pilot project its intention cannot be “alleviating perennially overburdened courts”, as much as binging mediation to Valladolid’s citizens, to its civil society, a society that does not even know what mediation actually is. In fact, most of Spain, today in 2010, does not know that mediation can be alternative to litigation because almost no one has explained its nature and usefulness.
Pilot programs of this nature are useful on many accounts. First, promoting mediation in civil matters is in keeping with European Union Directives in this area. Second, mediation can help modernize the Justice system in Spain, as not all that is needed are main-frame, z/OS managed computer systems. Third, civil mediation pilot projects will touch some who will hopefully talk to others, thus putting mediation on the larger civil map. The combination of all three collateral consequences may just alleviate that overburdened Judiciary, in time.
The pilot program will start this month of January in two First Instance Courts in Valladolid. This is the jurisdictional level where citizens go to resolve minor civil disputes regarding small loans, neighbor relations, hereditary disputes, and the like.
Justices will have full discretion to choose which cases they think would be best suited for mediation. However, Judges will not be allowed to mandate that parties mediate. The basis of the pilot program requires the consent of the parties.
There is entirely too much talk about mediation as some sort of “tool that brings about social harmony and peace”, instead of being sold as what is: a worthy, useful alternative to litigation. This kind of talk tends to be found in societies where mediation is not established. Additionally, slogans of “social peace through mediation” is more mediator talk than party talk, as citizens rarely endeavor to consciously contribute to creating a culture of anything, but rather want their disputes resolved in a comprehensible, sensible, professional, time and cost-efficient manner.
Ms. Margarita Uría, of the Judiciary of Spain, is thrilled, too thrilled. The pilot project has not yet begun, and Ms. Uría is already calling to draft a “mediator statute to harmonize mediation legislation throughout Spain”. Mind you, family mediation laws are barely 10 years old; most are less than five years old. Mediation for civil matters outside family-related disputes is practically non-existent. Commercial mediation does not exist for all practical purposes.
Just as you can ban smoking in countries whose population can’t afford Marlboro’s –meaning that that there is no smoking to begin with—on account that it is the “modern thing to do”, it is obvious that you can legislate mediation in countries with little or no mediation tradition. This might be a problem, because legislation for the sake of legislation pleases the supply side of the equation at best (mediators), not so much the demand side, civil society, that needs time to assimilate a new way to resolve disputes.
Pilot mediation programs do build a culture of mediation; far-reaching mediation legislation may just hinder its growth if untimely passed. Just about every country has mediation experts –no cynicism intended—but in some countries (Spain included), Legislatures should wait and see instead of acting on sound-bites, slogans and essays on how wonderful mediation is in countries thousands of miles away. Why Spain calls for country-wide mediation legislation on account of a pilot that has not yet kicked in appears closer to zeal than to reason.
Does anybody remember the advent of ODR in the US, back not so long ago? Aware of this trend, the ABA thought about regulation. Then they stopped cold, and issued recommendations recognizing that ODR was too immature to be legislated and/or formally regulated, arguing that ODR organizations needed time to find out if they had a viable business model, and that it was wiser to wait and see how it matured on the supply and demand sides.
There is a fundamental difference between Continental/Roman and Anglo-Saxon jurisdictions. While the former seems to always be seeking perfect, air-tight legislation in an intellectual vacuum, the latter is more prone to let the reality of disputes shape, through case law, laws that in a Roman-based legal tradition would be labeled incomplete. There seems to be no reason today in Spain to try harmonizing non-existing legislation for the sake of it.