In comparing with the full development that the Civil and Commercial Mediation and the Maritime Law mediation had in the U.S.A. almost half a century ago – since it was promoted as an alternative dispute resolution system, ADR, together with the arbitration, and both as a clear alternative to the courts processes -, starting just one decade ago, in international legal context, these methods have started to make their way (see also, Maritime Mediation and other ADR systems. The mediation techniques and tools at the service of the general interest of Justice).
In particular, the firsts steps were taken by the UNCITRAL Model Law on Commercial Conciliation (Resolution 57/18 adopted by the General Assembly on November 19, 2002). More recently, in the field of the European Community Law, commercial mediation (and maritime law mediation) was first introduced by the EU Commission Recommendation 2001/310/EC, of April 4, 2001, on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (OJ, L n.º 109, 19.4.2001) and, later, the subject has been framed in the Directive 2008/52/EC of the European Parliament and the Council, of May 21,2008, on certain aspects of mediation in civil and commercial matters (OJ, L n.º 136, 24.5.2008).
With the Spanish Laws of domestic production, there is the Act 5/2012, of July 6, on mediation in civil and commercial matters (BOE, n.º 162, of July 7, 2012, cited hereafter as MA) which has started to work (it will soon be publishing an implementation regulation of this law/act, articulating: formation and other training matters, registration and insurance of civil liability of mediators or requirements to be fulfilled to perform mediation procedures by electronic means: Online Dispute Resolution (ODR). The publication in the Official Gazette (BOE) of the MA is, in fact, the final transposition of the Directive 52/2008 to our Legal System (and replaces the RDL 5/2012, of 5 March, on mediation in civil and commercial matters).
Our judges realize the relevance and legal significance that these legal texts will soon have on our way of applying this new jurisdictional and maritime law. It has been justified in a few lines by Justice Alastruey Gracia (member of European Association of Judges for Mediation), drawing her to these conclusions. In fact, a sector of our judiciary body, in which Justice Alastruey is spearheading, is fully aware that, in the vast majority of the cases, included the maritime law ones, conflicts have arisen because of communication problems or speech misunderstandings. For example: when one maritime law contract is interpreted differently by the contractors; when a gesture is treated as a grievance to be vindicated; when after years of litigation the parties have no longer suffered the conflict situation but others have; or when the present or future goals and interests have been lost, becoming entrenched in past grievances. She and this sector of the doctrine understand that: “to pretend that the conflict is solved after the evaluation of the situation that arose on the basis of legal rules, written for a generality of situations, and allocate them based on reasons and rights for winners and losers, should not be the only way to address disputes”.
It happens that maritime law conflicts are not legal, but personal: the nuances of personal and commercial maritime law relationships do not always fit into the regulations. It is for this reason that the courts are unable to give the parties a more adequate and effective form of protection when the maritime law disputes arise: the legal decisions and judgments which are dictated do not always solve the problems underlying in the dispute, as had been raised in legal terms at the beginning. It requires, in short, that one should walk the walk with the goal of the “iuris-diversity” in sight.
In our civil and commercial Spanish justice system, mediation (also maritime law mediation) is not a process of confrontation of positions, such as the judicial and maritime arbitration process (in these two latter cases, the conflict is left to the decision of a third party, the judge or the arbitrator), nor is maritime law mediation a process of negotiation between lawyers acting on behalf of the parties. Maritime Law Mediation is a process of dialogue led by a professional so that the persons concerned are able to express and share their interests and find one or more solutions to the conflict that affects them. In maritime law mediation, it is evident that those who suffer the problem also have the power to reach a solution through a respectful and civil dialogue.
Wilfulness and good faith are both basic tools needed for a dialogue that a neutral mediator conveys to the parties involved and helps them to agree upon the most important common points in their maritime dispute, from which they could begin to come to a solution (Explanatory Memorandum to the MA). From this perspective, the use of judges and court resolutions should be the last resort, the last remedy to resolve any maritime law dispute.
Therefore, the MA regulations provide two ways to start the mediation process: the conventional agreement (with a mediation clause, which is inserted into the maritime law contracts) and the maritime law processes derived from the Courts.
Regarding the conventional agreement option, the MA enables the mediation clause at the time of conclusion of the contract – or even later -, allowing the express submission of international or national maritime law mediation (secc. 10.2 MA and correlative amendments to the seccs. 39, 63 and 65 CPR), while allowing it to go to mediation over the conflict that has emerged whether they want it, and if it still has not gone to court.
What’s more, with the same foundation of respect for autonomy and freedom of contract (secc. 1255 CC or Civil Code) and good faith in the conduct of the parties (seccs. 1256 and 1258 CC), this regulation also provide that the cost of the lawsuit has to be charged to the defendant who has acquiesced in court, whether previously he had begun and ended the mediation without an agreement (secc. 395.1 LEC, our Civil Procedure Rules, herein after CPR).
The MA – Explanatory Memorandum – provides that: “(…) it aims to be an incentive to encourage the use of mediation, so that should not affect subsequent litigation costs or allow its approach be a delaying strategy of fulfillment of contractual obligations of the parties (…) “. Therefore, the law has expressed in the choice of the suspension of the limitation of actions (secc. 4 MA) before or when the procedure starts, compared to the general rule of its interruption, all of it in order to remove possible disincentives to mediation. Because of the power to dispose of the dispute, the parties may agree to go to mediation, even if they have already initiated the legal process (secc. 16.3 MA), in which case, it will be suspended.
The Spanish MA protects confidentiality. Since the parties have to communicate relevant information among them to develop the solution, it is imperative that this freedom of communication does not become a negative factor later (e. g., in case the maritime law mediation process ends without a final agreement). To ensure this confidentiality, the Act “prevents that the mediators or the persons involved in the mediation process could be compelled to testify or provide documents in court or arbitration proceedings, on the information and documentation resulting from a mediation or related with this process” (secc. 9.2 MA). In the same sense, the CPR (seccs. 335 and 347) prevents the provision of expert reports and intervention in the trial to those who had acted as an expert evaluator of the civil, commercial or maritime law matter during the mediation process.
Seeking to provide the highest performance guarantees agreed by stakeholders, and seeking to persuade the litigants of the benefits of mediation, the MA dispositively regulates the possibility of court approval of the private agreement (secc. 25.4 MA) when mediation is carried out once the process in court had been filed or initiated. Although that the validity of an agreement between the parties does not depend on the court approval, its enforceability is subject to this judicial act.
The parties may, in any case – as is well known -, discontinue the court or arbitration proceedings (secc. 19 CPR) or argue the occurrence of the lack of objective in them (secc. 22 CPR). It will happen when the reached agreement has been immediately enforced. Whether, on the contrary, it is necessary to ensure the implementation of the agreement in the future (to give enforcement power to it), the parties may choose to grant deed to the agreement or to apply for the above approval in court.
The Final Disposition 3 MA incorporates a number of amendments to certain articles of the CPR, focusing in the real connection between the mediation process and the courts and tribunals. The mediators or the Mediation Centers have to inform the courts about the initiation of mediation in the moment of the transfer of the complaint of the defendant. It has to be done in the verbal trials (secc. 440 CPR), in the act of judgment (secc. 443 CPR) or at the preliminary hearing act, if the parties had not done it before (secc. 414 and 415 CPR).
The MA has not incorporated the obligation to go to mediation as a previous condition for the exercise of judicial action, in any matter (e. g., maritime law cases). Along with the apparent incompatibility between legal obligation to go to the informative briefing and the voluntariness of civil, comemrcial or maritime law mediation – which in any case does not refer to the mediation process itself, but only that the parties had tried to agree on a solution going into it -, the Act has estimated that an indiscriminate referral of all (private or maritime law) conflicts to mediation could end with the goodness of the system before it has been develop sufficiently. As the American Professor Jacqueline Font has pointed out, decongestion of court is not an end in itself, but a consequence of the efficiency of the alternative systems such as it is the mediation.
As you would imagine, mediation does not work fo all maritime law conflicts, nor should it begin at any time. The dispute between the parties must have reached a degree of maturity to be able to be addressed with a methodology based on directed dialogue. The dispute must have reached a climax or stagnation, at which each party must decide if they will beat the other (win-lose) or if they prefer to try to work in collaboration to resolve the situation (win-win).
The mediation procedure, in particular, is specially indicated for all those cases in which there is a relationship, past, present or future, between the people or companies that suffer the conflict (e.g., they work in the same business sector). It is also indicated in all those cases that, from the perspective of economic analysis of law – in this case, of maritime law -, to go to a court or arbitration process involves different negative costs (economic, temporal, lose of opportunities, conflict escalating, derived from the uncertainty and even physical and emotional costs). In general, maritime law mediation is particularly suitable for disputes arising from breaches of shipping contracts.
In conclusion, Judge Alastruey Gracia stresses as one of the essential tasks of judges, court clerks and court office staff, to inform and promote the use of this methodology. To do this, we all understand that they have to be supplied with the appropriated tools, such as resolution forms (in the judicial informatics systems) and with an effective communication systems between the courts and the mediation centers. Judge ends stating that “(…) it is also necessary that lawyers understand that mediation does not invade their land as advisors, but instead, allows them to develop their activity from other perspectives less belligerent and more peacekeeping, and have an important role at the final moment of the agreement documentation”. It will be convenient, if we really want to strive for dejudicialization of society, to promote the establishment of mediation centers and to accredit mediator listings to where conflicts can be referred (particulary, in maritime law dispute resolution).
And finally, it will be essential to have good maritime law mediators, who have been trained, have multidisciplinary skills – and not just legal experience – that, by using creativity, can open collaborative possibilities, remain neutral in the conflict and impartial between the parties. Good mediators are people who have been trained specifically in these facilitation skills of communication, rather than the evaluative. Maritime law mediation is available to give the opportunity to those who have a conflict to perceive that the solution also belongs to them.
The need for maritime law mediation in a sector based on stable, reliable and professional relationships as is trade and international shipping industry
No one would find it strange if we claimed that dialogue and a third party (maritime mediator) has been used in resolving maritime law disputes. There have been many and a wide-ranging of maritime law disputes – between operators, ship-owners, charterers, shippers, insurers, etc. – that have been resolved through the maritime law mediation of a neutral third party. This person, a conciliator or an expert evaluator (who have to be specialized in maritime law), often embodied by the inspector of the classification society who, to cite an obvious example, as the ship-building is, in addition to ensure the success of the shipyard work, often takes the role of who have to be specialized in maritime law mediator in cases of discrepancies between the builder and the client thereof. Thus, it is proving to be a very easy implementation in the maritime law sector and in the marine industry.
During European encoding, the conflicts between maritime operators that did not find a conciliated solution, were settled under the courts of law (some specialized in maritime law and some not so). Thus, it confirmed the problems and inconveniences that were created by these methods of solving conflicts. In particular, slowness of solving the maritime law dispute (in many Legal systems), high economic, physical and emotional costs for the parties, adversarial situation and loss of shipping business relationships, lack of control and a high degree of uncertainty about the judge’s decision, publicity of the judgment with the prejudice in the image of the litigants, problems due to the need for a new process of execution, and so on.
If anything has characterized International Maritime Law it has always been its ability to reach standards set conventionally, employing forms and maritime law policies that adapt the best practices and behaviors that have been legally established as precedents (under the influence of the Common Law). In these maritime law contracts – which have been unable to be resolved or adequately managed the conflicts – the regular use of arbitration has been the most commonly used method for years. In fact, there are voices that have been denouncing the overexposure of maritime law disputes of arbitration, noting that there was not a procedure as cheap as it seemed, nor a peaceful as others wanted us to understand it to be. The reality is that it does not remove the bitter confrontation and always ends up “definitely burning the vessels”.
Long and tiring litigations, often in several jurisdictions at the same time, can result in anyone being the eventual winner in a maritime law dispute because the potential winner is exhausted or even bankrupt before the case is completed. Maritime operators therefore claim above all – now more than ever in tough times of global crisis – for a different answer, more rational and more fair materially enabling them to not only feel reaffirmed in reason, but supported by those advisers and lawyers who will ensure that during the process they will try to find the solution (whatever the choice). They need to be sure that the future shipping business relationships with their customers and partners will not be harmed. It is here that the collaborative maritime law mediation ADR system fits in.
Because of the importance, the number of parties involved and the amounts often raised and discussed in maritime law affairs, the parties have traditionally preferred to choose between the different ADR methods. They often have addressed the mediation centers and institutions looking for a faster mixed evaluative-collaborative maritime law mediation procedure, which combines both private and joint sessions. The usual pragmatism of commercial and maritime lawyers that handle disputes arising in the maritime business makes them feel more comfortable with this kind of maritime law mediation.