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International Working Group

The key role of Mediation

Why?

El working group "The key role of mediation", made up of professionals in the field of mediation from Spain and Latin America, it has been configured in order to reflect on the advantages of mediation and the management of negotiated agreements, explore the experience of professionals from other Spanish-speaking countries on this formula, and the need to resort to alternative conflict resolution mechanisms that avoid resorting to the courts, given the saturation that they are currently experiencing.

After the first study phase of the GT (2020), it was concluded that, although mediation in Latin America and in Spain generally has sufficient regulation, its use to resolve commercial disputes remains quite limited. This is probably due to cultural factors or lack of promotion.  

That is why the second phase (2022) of the WG study will be in charge of evaluating and determining what are those factors that limit the use of mediation by companies and professionals. To this end, we have drawn up a survey addressed both to company directors and to other professionals related to mediation (lawyers from law firms, lawyers en casa, mediators, jurists, professors and academics linked to mediation). 

The results of the survey will provide us with more clarity on the context of how mediation is developing; that is to say: (i) the scope of the use of mediation in the different countries (to what extent is it being used); (ii) what are the reasons why mediation is no longer used; and (iii) what is missing for companies to feel safe to use mediation. 

The global pandemic caused by the coronavirus has forced governments to adopt a series of extraordinary measures to manage the serious health crisis that countries are facing. These measures have generally consisted of confining the population to try to reduce the rate of infections and not collapse the health infrastructure, as well as drastically restricting all those activities considered non-essential.

We are witnessing an unprecedented situation whose social, economic and legal consequences will be with us for a long time.

The strong contraction of demand forced by the circumstances is seriously affecting the ability of many companies to comply with their obligations, placing them before the impossibility of continuing to respect their contracts or the need to modify them or suspend their execution temporarily, while maintaining the exceptional situation that we live.

Both the governing bodies of the judiciary and law firms are preparing for the avalanche of lawsuits related to contracts affected by the measures adopted as a result of the health emergency that are announced on the horizon.

Analysis Areas

Comparative analysis of the legislation in some Latin American countries of conciliation and mediation mechanisms

Channels of communication, dissemination and more suitable mechanisms that allow companies to know how mediation would develop in practice.

Representing Clients in Mediation and the Role of the Attorney

Publications

Phase 1

Conclusions International Working Group The key role of mediation

In the 1st phase, under the direction of Carlos Gutierrez, Chief Litigation Officer at Siemens Gamesa Renewable Energy, SA A comparative analysis of the legislation in some Latin American countries on conciliation and mediation mechanisms has been carried out, identifying differences and similarities that will later allow us to make proposals to promote the use of said mechanisms . The legislations analyzed are those of Ecuador, Mexico, Peru, Argentina, Chile, Panama, Uruguay, Colombia, Brazil, Paraguay, Spain and the United Kingdom.

Phase 2

STUDY:

The opinion of users regarding the use of mediation in civil and commercial conflicts

In its 2nd Stage, the WG set itself the challenge of knowing the opinion of the different users of mediation, in order to subsequently analyze them and make the recommendations that, in the opinion of the WG, are considered necessary to promote the use of mediation in the resolution of disputes. civil and commercial disputes in the various countries that were the subject of study.

For this purpose, a survey was developed that was directed to the users of the mediation; that is, the in-house lawyers of various companies, firm lawyers, mediators, jurists, company managers and academic professors. The questions focused on the use of mediation in their countries, the reasons why they decide to resort to mediation or not in a conflict and on the actions that, in their opinion, would be necessary to promote the use of mediation as a effective method of conflict resolution. The responses obtained from the completed surveys have been evaluated by the WG.

Group Directors

Carlos J. Gutierrez

PHASE 1
Chief Litigation Officer at Siemens Gamesa Renewable Energy, SA

Briana canorio

PHASE 2
Arbitrator at the Lima Chamber of Commerce Arbitration Center
Academic coordination: Carmen Hermida and Cynthia El Hindi

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