Legal conflicts and ways to solve them

1. CONFLICTS

Conflicts are social phenomenon: Intra-personal, Inter-personal,

Intra-group, members of the same group, Inter-group, International,
Beliefs, Values, Resources, Emotions, Roles, Responsibilities, Friends,
Family members, Neighbors, Consumers and merchants, distant
nation-state.

The State regulates social relations

establishing the rules of the game:

(including

conflicts)

by

what is allowed and forbidden to do;

establishment of the legitimate interests that everyone can maintain

and require;

Existence of individual rights and defense.

The State establishes and follows RULE of LAW (Estado de Derecho)

Important!!!
SOCIAL RELATIONS RELATIONS REGULATED BY THE LAW
Main difference between legal provisions and other provisions
(moral, educational, social): Legal provisions are mandatory and to
ensure their effectiveness coercive measures could be used.
2. WAYS TO SOLVE LEGAL CONFLICTS
Self- protection: Self-defense, Strike.
Self-composition: based on a negotiated solution

Hetero-composition: (imposed solution) Arbitration, Litigation.

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Litigation
Alternative Dispute Resolution (ADR):

Mediation

Negotiation

Conciliation

Arbitration

WAYS TO SOLVE A PROBLEM:

Self-protection: illegitimated
One of the parts of a conflict decides to solve it by a coercive imposition
(usually based on using the force).
Common for the primary stages of evolution and almost out of law
nowadays.
Exceptions in Spain: strike/lockout (cierre patronal, strike of the employer),
self-defense/state of necessity, some provisions of civil law (1. cut roots or
branches of someone elses tree in ones own property - art. 592 CC, 2.
chase a swarm in someone elses property - art. 612 CC). International law:
embargo, prevented war.
Self-composition
Voluntary agreement of both parties to solve the conflict by themselves or
by addressing it to neutral third party that does not have superior powers
over the parties.
Features:

Parties partially
requirements;

or

fully

resign

from

their

initial

positions

They partly or fully recognize rights / requirements of the other party;

They try to solve the conflict by themselves or with the help of the
third party that they choose;

Parties of conflict are not obliged to end the process with the solution;

If there is a 3rd party, its proposals are not binding.

Possible even when one of the parties has brought the case to the court.
Possibilities:

Resignation from the claim [renuncia a la accin] applicant.

Procedures are closed and cannot be opened.

Withdrawal from the proceedings [desistimiento] it has to do with the

proceedings instead of the claim, differences: the case can be
reopened in the future with the permission of the defendant.

Acceptance of the claim [allanamiento] the defendant takes part. It is

unilateral. It doest need the permission of the applicant.

Agreement (compromise) [transaccin] bilateral. The process is

negociation.
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Before or during the proceedings:

With 3rd party intervention: Mediation, Conciliation

Without 3rd party intervention: Negotiation

Hetero-composition (example of complaining to mum and then

mum decides)
Parties of the conflict submit their dispute to the third party (above the
parties,) that has a superior position over the parties (supra partes) and its
decisions are mandatory to the parties.
Decision of the third party: irrevocable- you are not able to go to a
superior court.
Enforceability: enforcement power, they are able to make you follow
the decision. Power to make somebody follow a judgment.
Standard way to solve conflicts litigation
The other ways to solve conflicts: ADR
3. ALTERNATIVE DISPUTE RESOLUTION METHODS (ADR)
History: Known since primary societies. Within the procedural meaning is
used since 70s of 20th century (firstly in U.S.).
Areas: Labor, consumer, family, education, contractual, administrative,
penal (restorative justice), environmental, public health, political,
international and other conflicts.
Negotiations:
Back-and-forth communication designed to reach an agreement
between two or more parties with some interests that are shared and others
that may collide or simply be different.
ATTENTION! differently from other forms of ADR negotiations are not only
tool for conflict resolution, but also a tool to agree on some interests that
parties share.
Arbitration is confidential while litigation is public.
Social relations some of them are solved by law.
Advantages:

Can prevent deeper conflict between parties.

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Usually brings at least partial satisfactory of both parties interests

(there is no scheme winner-looser, there is scheme winner-winner).

Allows for parties to analyze the problem and identify the most
important questions.

Is possible even when one of the parties has brought the case to the
court.

Less time and cost consuming. Often, reduces emotional stress of

resolution, too.

Disadvantages:

Usually there are no coercive measures that would ensure that the
agreement is followed (exception Law 5/2012, arbitration).

Is limited by the legislation and not possible in all areas.

Usually the execution (as the process in general) is voluntary.

There are different classifications of negotiations, but the most general

is the following:

Competitive (or distributive) to divide existing benefits, to

get a bigger part of the existing pie. Start as low or as high
as possible. Idea: divide the existing pie.

Collaborative (or principled) to find a way in which both

parties can increase their benefits, to make a pie bigger.
Work together and find ways to win as much as possible.
Enlarging the pie. There are different sources for enlarging the
pie: exchanges, time frames, security clauses.

Mixed (principled and competitive) depends on the stage of

negotiations and their object. Depends on the field negociated.

Mediation: A process, during which an impartial and neutral third party

(mediator) having no power to make a decision helps the conflicting parties
to communicate and reach the decision acceptable for both of them. One of
the two ADR methods. Self composition method with the participation of a
3rd party.
According to the Law 5/2012 on Mediation in Civil and Commercial Matters,
mediation is a tool to solve controversies in which two or more parties
voluntarilly try to reach an agreement between themselves with the
intervention of a mediator. It is a dispute method, it is not mandatory, there
is a 3rd party who can not imposse the decitions.
More comprehensive:
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A voluntary and structured (although it can be flexible to a specific

case) process, during which an impartial and neutral third party
(mediator) having no power to make a decision helps the conflicting
partiesunder the cover of confidentiality to communicate and reach
a solution acceptable for both of them. The 3rd cannot favor one part
or another.

Guideline: neutrally acceptable solution.

The main power belongs to the parties, because they:

can choose at any moment whether to begin, continue or stop

mediation,

retain their control over the outcome of their conflict,

accept or reject any aspects of the process or the ultimate

agreement.

The key is the ability of the mediator to create a more productive

discussion (ease the tension, focus on the common pints rather than
conflictive points, avoid emotional aspects, make sure legal solutions are
given to the conflict) than the parties could have had by themselves. The
mediator makes sure that the parties receive good advices from their
lawyers.
Practical examples: divorce: both parties claim a house, the mediator helps
looking behind the claim (sentimental value)
Self-determination of parties, you cannot force someone to get involved in a
mediation unless you already signed an agreement.
Mediation doctrine
The solution is made by the parties for the parties. It is a very flexible
process although it is structured; the parties can make changes but they
have to follow the structure.
Fields:

Civil and Commercial disputes (property business, family) (incl.

family)

Criminal matters: the mediator helps restore but doesnt need

to get peace to the victim. The mediator belongs to the state
usually. Mediation doesnt usually work as an alternative, it is
mediation as a compliment as a legal procedure. Usually it
works in faltas. In more serious cases it would work as a
compliment to give a softer penalty.

Example: mediation with young people (graffitis) when the

owner of the shop asks the criminal to restore the shop.
Restorative justice.

Labor disputes

International Law: UN peacemaker. It is different to mediation in

other branches because of the importance of the politics.

Roman communities living with Spanish communities intercultural

mediation.
(N.B. Mediation is also used to resolve non-legal disputes)
Conciliation
Can be described very similar to mediation:
A process, during which an impartial third party (conciliator) having
no power to make a decision helps the conflicting parties to reach the
solution acceptable for both of them.
Difference: the word neutral. Conciliator has the power to propose
solution so he is not neutral while in mediation the mediator cannot
propose a solution.

Differences between Mediation and Conciliation

There is no unanimous opinion on it and different authors understand
conciliation and mediation differently, e.g.:
Conciliator has a very limited intervention in time but more power than the
mediator, and the mediator has more time but less power

The meaning of conciliation is to bring closer, to unite and

the meaning of mediation is to take an intermediate position.

A conciliator plays a relatively direct role in the actual

resolution by proposing solutions.

A conciliator provides solutions not only on the basis of the

information provided by the parties, but also on his/her own
expert experience and information gathered.

Conciliation may by compulsory, while mediation is always

voluntary.

Conciliation is an act (takes a place in the court), mediation is a

procedure.
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Conciliation is always part of the proceedings, mediation can

be court-connected or not (extrajudicial).

Tendency: to merge definitions of conciliation and mediation.

Arbitration
It is a process in which
position to the parties of
making a decision that is
is considered res iudicata
with the same stuff.

the third party, impartial and with a prevailing

the conflict decides on how to resolve a conflict,
mandatory to enforce. The decision of Arbitration
(cosa juzgada) cannot be taken back to the court

Arbitration award (resolucin) is treated as res judicata (cosa

juzgada) and includes mandatory enforcement. Once the dispute is
solved by arbitration or court, the same dispute between the same
parties it cannot be taken again to court or arbitration to examinate
again.

The intervention of the arbitrator finishes with the making of the

decision. When the arbitration decides and communicate the decision
to the parties the process ends.

It is a private organ that does not have judicial power. Private organ
(arbitral) and public organ (judges).

Usually, the parties agree in advance that in case of conflict they

would go for arbitration, e.g. concluding agreement.

Not all kinds of conflict may be submitted to arbitration (only civil,

commercial, labor). Only available matters! I cannot take divorce to
arbitration, just the State can decide. The right to vote: just the curt
can say that I dont have this right anymore.

Does not create legal precedent (in case of Spain case law).
Arbitration doesnt create case law. If I take arbitration as a proof
(prueva) of another case it is not valid.

You can complain for specific errors but not because you are not
happy with the resolution.

Arbitration is faster than litigation, which can take several years. Arbitration:
there is no publicity of the process. It is useful in business because of the
reputation of companies.
If I say that I go to arbitration then I should follow it and then the judge dont
take part.
Litigation
Art. 24 of Spanish Constitution: All persons have the right to obtain
effective protection by the judges and the courts in the exercise of their
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rights and legitimate interests, and in no case may there be a lack of

defense.
Tutela judicial efectiva. It is for any legal conflict.
-

Applied to all kinds of conflicts;

Performed by the Courts, that are a public authority acting on behalf
of the King;
Creates a legal precedent (established case law of the Supreme
Court) to following cases;
The judgment is final and mandatory to enforce (common with
arbitration);
Coercive measures, punishments in case of enforcement can be
applied. The court applies this measures. The arbitration cannot take
anforcement but the court can do.

Similarities and Differences of the Arbitration and Litigation

Similarities
-

Both an arbitrator and a judge (magister) are in superior position over

the parties of the conflict. Supra partes
In both cases the process is formal and solutions are legitimated.
Process really structured and we have to follow steps in the
procedure.
Decisions do not need confirmation or recognition of another
institution. Decisions are irrevocable and enforceable.
Decisions have the status of res iudicata (cosa juzgada).(take back to
another tribunal because it has already been solved )
Enforcement of decisions is regulated by the law, i.e. they are directly
enforced.

(judicial sentence and arbitral award nombres)

Enforceability we need to take one more step: mediation if I want enforce I
have to go to judge and sign the agreement or go to notary so then the
solution becomes an enforceable solution.

The end of the intervention of the arbitrator does not mean the end
of the regulation by the law. The arbitral award is regulated by the
law until its proper implementation.
ADR in Spanish Law:
-

Law 1/2000 from 7 of January on Civil Procedure (and implementing

Royal Decree 980/2013)
Law 60/2003 from 23 of December on Arbitration (modif. 2011)
Law 36/2011 from 10 of October on Social Jurisdiction
Law 5/2012 from 6 of July on Mediation in Civil and Commercial
Matters
Organic Law 5/2000 from 12 of January, regulating criminal
responsibility of minors
Law 15/2009, from 22 of July, on mediation in the area of private law
(Catalonia) (and other regulations of the Autonomous Communities)
Royal Decree 231/2008 from 15 of February on Arbitral System of
Consuming
Legislative Royal Decree 1/2007 of 16 November, on approval of
rewritten text of the Law on Protection of Consumers and Users and
Other Complementary Acts

Negotiations are not regulated.

Act 1/2000 from 7 January on Civil Procedure:

Art. 770 and 777 talks about family mediation process in

cases of separation or divorces.

Note: mediation as a kind of self-composition cannot be applied to the

matter of civil status as such, but could be applied to all issues related to
that (property, care of children, etc.).

Art. 517 refers to the enforcement of arbitral awards (laudos)

and of mediation agreements, and coercive measures
related to that.

Law 5/2012 on Mediation in Civil and Commercial Matters

-

Request for mediation suspends prescription date or statute of

limitations of actions in front of the court.
Principles:

voluntary nature,

free disposition (no obligation to reach an agreement),

equality of parties,

impartiality of a mediator (withour prejudice or interests with

any of the parties),

neutrality (parties make an agreement by themselves)

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confidentiality.

Prohibition to start any judicial or extrajudicial action during the

mediation process.
!!!!! An agreement derived from mediation is rended with
enforcement title, i.e. its enforcement can be directly urged
to the court (BUT following the relevant prerequisites)!!!!!

Act 36/2011 from 10 October on Social Jurisdiction:

Mediation and Conciliation

Art. 63: before legal proceedings, an attempt of conciliation or

mediation within the relevant body is required.
Art. 64 lists the cases of exception from requirement of
conciliation or mediation (social security, holidays, geographic
mobility, substantial changes of work conditions, objections to
collective agreements, when the defendant is the State or
other public body, etc.)
Art. 66 foresees that attendance to the conciliation or
mediation is mandatory
Act 36/2011 of 10 October on Social Jurisdiction

Arbitration:
The Act does not foresee direct obligation to apply arbitration, but makes a
reference to the Royal Legislative Decree 1/1995 (Statute of the
Employees).
Art. 83 and 86 of the Royal Legislative Decree 1/1995 foresees that:

Provisions on arbitration can be included in the interprofessional agreements or sectorial collective agreements of
the level of the State or Autonomous Community.

Inter-professional agreements have to foresee procedures of

the arbitration. If the above mentioned agreements do not
foresee whether the arbitration is compulsory or not, it is
treated as compulsory.

Act 60/2003 of 23 December on Arbitration

Art. 1 says that this law is supplementary to the arbitration foreseen

in the other laws and is not applied to the labor arbitration. Priority to
specific framework
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It is applied when:
1. There is explicit written agreement of the parties to bring the
case to the arbitration.
2. While applying arbitration under this Act, court intervention is
forbidden.
3. Disputes maybe be considered internal or international.
4. Disputes are on matters of free disposition (available rights).
5. Enforcement of arbitral decisions is carried out under the Law
on Civil Procedure (Book III).

4. Judicial Power: Content and Functions

Content of Judicial Power
-

Power of decision,
Coercive power,
Management power,
Power of documentation

Main Function of the Judicial Power

Could be seen from 2 points of view:

Subjective main function is protection of violated rights of persons.

Objective main function is to ensure that law in general is applied

and followed in every case.

UC3M position

Is based on the Art. 24 of the SC: All persons have the right to
obtain effective protection from the judges and the courts in
the exercise of their rights and legitimate interests, and in no case
may there be a lack of defense.

The main function of judicial power is subjective resolution of legal

conflicts.

Other Functions of Judicial Power

-

Provision of the legal security by the consistent interpretation of the

law.
Control, protection of legal provisions.
Control legality of the actions of other state powers, Art. 106 of the
SC The Courts shall check the power to issue regulations and ensure
that the rule of law prevails in administrative action, and that the
latter is subordinated to the end which justify it.

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Creation of the law courts cant create legal provisions where they
exists, but can create them in the area or question where they do not
exist.

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