A few days ago, the new judicial year began, leaving behind a year in which we have seen how courts have become increasingly overwhelmed, partly due to the continuous strikes by different legal operators.
This situation should make us all ask ourselves before starting a claim, which path to choose? In addition to the judicial route, there are other alternative dispute resolution mechanisms that will allow, to a greater or lesser extent, to achieve a quicker resolution, although not always as effective.
The star mechanism is “arbitration,” this procedure prevents the subsequent judicialization of the claim and involves a third party “arbitrator” becoming aware of the conflict and resolving it. This third party does not have to be a jurist nor resolve by applying exclusively current legislation (arbitration of law); it is sufficient that the resolution does not contravene the legal system but is resolved according to their best knowledge and understanding (arbitration of equity). The resolution issued by the arbitrator will be binding for both parties, cannot be appealed, except under exceptional circumstances, and can be directly enforced in court.
But there is not only “arbitration”; within these mechanisms, we also find “mediation.” This procedure does not limit the possibility of judicializing the claim, so that if it fails, one can go to the ordinary courts of justice, and it aims for the parties to reach an agreement through the active role of the third party “mediator.” This agreement, which is undoubtedly binding for the parties that subscribe to it, does not allow its direct execution in court.
Therefore, it will not always be necessary to resort to the judicial route, which should lead us to ask ourselves before starting a claim whether it might be more convenient to opt for one of these mechanisms before resorting to the courts.