We would do better if we would have paid more attention to Benjamin Franklin….
The alternative dispute resolution ADR are mechanisms for the parties in conflict to resolve their differences and avoid going to court. Its effective, efficient and quick within family disputes, working relationship, and commercial agreements. In Spain, this should be promoted more prominently in other fields e.g administrative litigation. The performance of the courts in Spain has been generally characterized by their rigid proceedings, tardiness and for being more expensive for the parties. Therefore, litigation in courts should be the last resort for the parties in conflict in whatever jurisdiction.
In commercial matters, it is of interest that the contracting parties include in their contracts ADR clauses, it is sufficient with a simple clause proposal in which the parties agree to approach positions through mediation or arbitration as a preliminary question:
“If a dispute arises from or in connection with this agreement, the parties must follow the alternative conflicts resolution procedure established in this contract (…), the parties will try to resolve it through mediation or arbitration in accordance with the procedure established by the Spanish Chamber of Commerce. Unless otherwise agreed between the parties, within 30 days of the notice of dispute (…). No party may initiate any judicial proceeding in relation to all or part of the dispute until 30 days after the mediation or arbitration has provided a decision to this effect.”
In Spain, the General Council of the Judiciary provided in 2015 in its national statistics plan section indicated a total of 426,389 procedures occurred in mediation, arbitration and labour conciliation (individual and collective) of which 13,358 ended without agreement and 17,464 ended without any effect. We ignore why these statistics were stopped being provided but it would be especially useful to resume them.
The public administration deserves being pulled out from their ears since it has not provided mechanisms of alternative resolution of conflicts in the contentious-administrative jurisdiction in the 98 law of the contentious-administrative jurisdiction. In other states, e.g, the United Kingdom, if a taxpayer has a problem with the British estate, this agency offers the possibility of resolving this argument according to an ADR system, alternative conflicts resolution. In the 2016-2017 fiscal year, about 80% of the cases were resolved by these means. The Spanish Tax Office, which lately is receiving some critics from University Professors specialised in Tax, it needs a deep change. The Tax Office addresses directly the claims of the taxpayers to the Administrative Economic Courts, which in its tax management procedures can manage to respond within six months or in the tax inspection and collection procedures could last up to one year. Likewise, we do not have any recent official statistical data, since the last one available is also from 2015.
Therefore, it is worth reminding the advantages of the ADR:
- Saving costs.
- Savings time.
- Neutrality in the appointment of an expert mediator or an independent arbitral tribunal.
- Gives the parties the possibility to resolve their differences and maintain a good relationship in business.
- Enforceable arbitral awards.
- Legal Certainty.
Del Canto Chambers, the Anglo-Spanish firm has experts in mediation and arbitration in London, Madrid and EMEA, being permanent members and arbitrators in the Moroccan Hispanic Court of Arbitration. We advise families and companies in multiple and complex international jurisdictions. Contact us here.
& Spanish Abogado
Del Canto Chambers