Paradigm Shift in Conflict Resolution: Contributing to a More Sustainable Justice System

Image Procedural efficiency

Javier Wilhelm

Director of the Master in Professional Mediation from UPF-BSM


A year ago, the Spanish Government approved and launched the processing of a bill on procedural efficiency of the Justice public service. At first, the news gave a great deal of joy to the professionals who are dedicated to managing and resolving conflicts between people, with the aim of conflicts not escalating and reaching the courts of justice.

We understand mediation as an opportunity that citizens have to be protagonists in their conflict and work on managing a legal participatory exit, so that the agreement that ends up being reached is tailored specifically to those involved in it.

In the wording of the bill, which is now in the final stage of parliamentary proceedings, the following elements are highlighted: the objective of ensuring that access to justice involves the consolidation of the rights and guarantees of citizens; that its operation as a public service takes place in conditions of operational efficiency; and in the words of Mrs Llop, the Minister, “streamlining the activity of Justice in structural terms, facilitating social cohesion and contributing to a more sustainable Justice system.”

In this way, the Alternative Conflict Resolution Methods (MASC) are introduced as a condition of procedurality when filing a lawsuit thereby promoting the participation of citizens in the Justice system, and returning to the parties their capacity to negotiate.

We understand that Mediation as a system is the most effective methodology for citizens to find a neutral and confidential space to be able to work on ways out of a dispute with the assistance and guidance of highly qualified professionals who help analyse what has been done so far, what has worked and what has not. In this way, a dispute resolution procedure can be initiated in which a different path is deployed from the one that the parties have tried and which surely has led to a series of frustrations and emotional fatigue, when not finding a mutually satisfactory and accepted answer by themselves.

We understand that mediation and other alternative mechanisms to the judicial path will be effective, as long as: the parties exercise their co-responsibility and participate together in exiting the conflict; the training given to professionals is consistent; and people understand that the path of coexistence is more effective than that of confrontation.

The new bill provides the opportunity for legal professionals to join together on a path that allows citizens proper access to systems of justice; understood more as a tool for social pacification and the horizontalization of democracy, we also believe that, in order to be effective, the challenge of the regulation requires the development of a public policy with leadership, resources and involvement, so that it does not become a mere administrative step.

We are facing a paradigm shift in the resolution of conflicts and in the construction of a coexistence in which each case and each person is treated according to their characteristics. We therefore expect legislators to review aspects of the law that need to be clarified, such as the figure of the neutral expert or the act of prior negotiation between legal professionals, something that has been undertaken since time immemorial; we also expect legislators to clearly distinguish the benefits of a procedural instance, in order to guarantee access to information and the exercise of people's freedom of choice, so it is not seen as a coercive bureaucratic act.

The Minister of Justice has expressed her intention to better guarantee the rights of citizens through less expensive and less time-consuming means, attempting to promote a change from a culture of litigation to a culture of agreement. However, we also believe that it is important to understand that the costs of remaining in a state of “open war” in the courts do not refer only to economic costs, but also above all to emotional costs, which prevent people from living together while respecting each other's differences and managing to overcome their individual views regarding their problem, with the aim of including the other on a path towards healing and understanding.

The bill is an important step, for legal operators, for mediators, but above all for citizens to learn to live in dissent, exercise the repair of what has been damaged in an appropriate space, and understand that coexistence with people who think differently from us is perfectly possible.