When we talk about conflict resolution, it is well known that every human relationship is nothing more than a narrow passage between two conflicts. Every step we take can lead us to fall into a conflict, generally unconsciously, others we throw ourselves into it with a well determined will, some with reason, others without it and most of the time not with all the reason. The existence of potential conflicts is not bad in itself, it is part of the development of every human relationship generated by a cocktail of expectations, needs, subjectivity, desires, dreams and reality. Let us not forget that in every conflict there is “my truth, your truth and the truth” and the latter is almost always difficult to grasp.
Error is not the opposite of truth, it is the forgetting of the opposite truth.
Pascal.
As people relate to each other there are conflicts, real and potential. It is part of the nature of relationships to have both conflicts and their resolution. Conflicts and especially their resolution are two important elements, but not the only ones of course, to move relationships forward, and it is well known that relationships, like the sea, are never still, they either move forward or backward. In general, most conflicts are not relevant, many of them we are not even fully aware of them and most of them are solved by themselves or with a small effort of good will of the parties. It is better if we are aware of them because this should serve as a learning experience for the next ones or make them more predictable and therefore avoid them as much as possible. The world around us offers us, together with countless studies and sciences and all kinds of para– or pseudo-sciences, all kinds of tools and mechanisms to allow us to recognize them, deactivate them, address them and solve them, and in those cases that cannot be solved, to assume the consequences.
Likewise, science and its younger sisters have analyzed their causes, typologies and consequences, which should allow us to coexist with them without magnifying or minimizing them, which does not mean either accepting them or hiding them, but facing them and trying to solve them regardless of the outcome.
In the world of law in all its fields, including commercial and business law, when trying to regulate relations between persons or entities – made up of persons – there is no way we can escape from such conflicts and therefore, foreseeing in the contracts how we are going to face them is a good starting formula to avoid them or, if necessary, to solve them. Let’s see them briefly without the intention of deepening in them that already there will be occasion to do it and to give rise to the experts, that there are and very good. It is enough for us to state them, their development will require much more than the scarce two pages that this text occupies and perhaps adopt a much more doctrinal tone.
The laws of each country have developed their specific formulas to deal with them, the most characteristic is to have delegated to a public power, the judiciary, one of the three pillars of any democracy along with the executive and legislative powers, the ability to resolve them or at least give them a solution that, whether or not shared by the parties, must be accepted by them, It has been given procedures and rules of operation that ensure that the parties will be able to present their reasons and will be heard and valued, even creating instances of review, rectification and unification of criteria allowing predictability in its decisions, just as it has been endowed with all the power of the State, which is no small thing, to enforce its resolutions and punish offenders. Theoretically, it could not be more perfect. However, we all know that this is not so, as any human construction is not exempt from all its flaws, major imperfections, is subject to the greatest of tensions, lack of resources and often qualification, delays, abuses and errors of all kinds. The list of its defects does not end there, but be that as it may, its value is immense, its necessity indisputable, its successes far more numerous than its errors – although the latter are always unforgivable – and its virtues far more than its defects – which are nonetheless no less bleeding. They are one of the pillars of the Law and of the democratic State, and there is only one thing that can be done with them: to strive to constantly improve them. Whether this is achieved or not is another story, but this should never impede our obligation as a society.
There are, however, other dispute resolution mechanisms called “alternative” (because they are alternative to the first) that deserve to be always taken into account when drafting any contract, let us not forget that behind any conflict there is a relationship, human or commercial, which, it seems obvious, it is always advisable to try to keep in the best conditions.
This is why contracts usually include measures for the “de-escalation” of conflicts, often based on the “escalation” of decisions. It is a matter of establishing mechanisms and spaces to try to resolve such conflicts internally before taking them outside the parties. Conflict resolution committees can be created, procedures to delimit the conflict (often the conflict is generated without really knowing what the essence of the conflict is) and set the position of the parties, other times, to avoid “personal wear and tear” the conflict is transferred to other people in the organization assuming that by not having participated directly in the management of the conflict it will be easier for them to find a solution. The important thing is to make it clear how, in which cases, who, in what way, the obligations to find solutions and, above all, the deadlines. The most important thing is to leave it well closed so that it does not drag on forever and that instead of closing conflicts it becomes an instrument to generate new ones.
Another mechanism, unfortunately not yet in great demand in our country, perhaps because it has been too often associated with family conflict resolution mechanisms rather than with those of organizations, is mediation. In mediation, mediators play a neutral role, they do not define the scenario but make it possible, they determine the procedure together with the parties, they do not impose the rules of the game or the framework for discussion, they only open up possibilities, allowing us to avoid subjectivity and to provide objectivityThey do not give the solution, they only point out the alternatives, they do not restrict but rather allow the analysis of all the options, they do not judge but make it possible for the parties to reach compromises which, as their commitments are more likely to be fulfilled and as they are agreements made between the parties themselves, maintaining confidentiality at all times, it is more likely that the relationship will remain intact despite the conflict. As opposed to the previous one, it means “taking out” the resolution of the conflict from where it has been generated, looking for a neutral, professional and expert party, some of them with an excellent preparation, that will adequately channel the conflict and its possible solution that, in no case will be imposed to the parties but that it will be reached by virtue of the will of both parties to solve the conflict.
Opposite, but not opposed, to mediation is arbitration. Here the parties agree to waive recourse to the judiciary to refer the solution of the conflict to a judge (in this case arbitrator or arbitrators) appointed by them or by an arbitration institution, from a group of qualified arbitrators and previously registered as such. The whole structure maintains a more procedural character with a procedure established by the parties in the contract or by the arbitration institution chosen and granting the arbitrator the capacity to judge and resolve the dispute by means of an award duly based on the applicable regulations in each case and binding for the parties, who may only appeal in limited cases. Arbitration tends to be well known in commercial matters due to its supposed speed and less procedural rigidity, confidentiality, as well as the fact that specialized arbitrators or arbitrators with knowledge of the contentious matter or of the activity of the parties in conflict are usually chosen. It is important to highlight the need for good drafting of an arbitration clause to ensure its effectiveness. This is not a matter to be neglected.
Apart from other less common mechanisms in our jurisdiction (Ombudsmen, Regulators, Neutral evaluation, Expert determination, to name a few), the above mentioned are perhaps the best known and much has been written about arbitration and mediation with the particularities of each of them, and much more needs to be said beyond this brief introduction. These lines will therefore serve only to describe them.
In any case, whichever method is chosen, it is always better to foresee it in the contract and that the parties dedicate a reflection to it, perhaps with that alone, some conflict will be avoided and if not, at least the basis for conflict resolution will have been laid.
