Let us now avoid judicial collapse.

The review of some of the headlines of the last days is enough to understand that, the most important of the collapses that we are suffering at the moment, that of our hospitals, will be followed by another, that of our courts and tribunals, if we do not do anything drastic. to avoid it. Our attention is directed particularly to the already saturated Commercial Courts, to which the law entrusts, among other delicate matters, the processing of bankruptcy proceedings. We join our voice, in this sense, with that of many colleagues who appeal to our responsibility as lawyers, as Andrés Mochales did a few days ago.

Let us now avoid judicial collapse.

The recent Royal Decree-Law 11/2020 urges in its 19th additional provision the approval of an Action Plan to expedite the activity of the Labor, Contentious-Administrative and Commercial Courts after overcoming the health crisis. But the signals that came from the Ministry of Justice before the pandemic were not discouraging. It was announced that the so-called 'Justice 2030 Plan' would propose alternative dispute resolution mechanisms to the jurisdiction, not only from the usual perspective of "alleviating the workload of the courts", but also as an authentic and complementary way for litigants better resolve their disputes. 

We believe that this initial approach is the one that must now be deepened with haste. Without disregarding the procedural streamlining as a shock action, it must be borne in mind that addressing the imminent problem without posing substantive measures would be like fighting the nefarious virus with just masks and respirators, without the horizon of remedies against the disease itself. In the context of potential judicial collapse that is looming, Arbitration is the most powerful antiviral and Mediation is the most effective vaccine, with the happy added advantage that, having already been tested with all guarantees, they are in a position to start from now on. work well to tackle conflicts in an incipient phase, or to settle them in the most efficient way possible. 

Both Arbitration and Mediation have a modern legal framework, excellent professionals and virtues (speed, specialization,fidenciality, cost savings in absolute terms) irreplaceable at this time. However, the controversies that are resolved through arbitration number in the hundreds every year, compared to the thousands of casos who enter the courts daily. Regarding civil and commercial mediation, the almost embarrassing statistics are known as the "European paradox of mediation": less than 1% of conflicts are submitted to mediation in the countries of the European Union despite the very high percentage of mediations that end with agreement, and despite the satisfaction shown by its users once tested. 

The sincere encouragement of alternative methods by the public powers, dusting off, for example, the Draft Law for the Promotion of Mediation. Opening to public-private collaboration in dispute resolution. The intensive use of technology, even for the immediate solution of common claims based on artificial intelligence. The total reconsideration of the misnamed and totally unsuccessful "bankruptcy mediation". These are just some of the latent ideas with which to truly promote the operational efficiency of the public service of Justice, an objective that constitutes one of the three axes outlined in the Justice Plan 2030. 

Let's avoid collapse between all of us. The Ministry of Justice, the Judiciary, the bar associations, the Chambers of Commerce, the excellent arbitration and mediation institutions that operate in Spain, the associations and clubs of reference in their promotion, the legal laboratories of ideas, the technological consultants and legal-tech ... All the actors have a lot to contribute to avoid this collapse, foreseeable but not unavoidable. And, of course, with the leadership of a lawyer aligned with the interests of his client in the pursuit of solutions, not lawsuits.

Let us now avoid judicial collapse.

© 2020. Javier Fernández-Samaniego and Blas Piñar Guzmán. Samaniego Law.
This article was first published by Legal Expansion (07/04/20).

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Let us now avoid judicial collapse.

About the Author

Javier Fernández-Samaniego

Javier Fernández-Samaniego

Managing Partner of Samaniego Law, a law firm specializing in conflict resolution and new technology law. Member of the Academic Council of Fide

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