Juan Antonio Ruiz, Partner at Cuatrecasas in Barcelona, Spain, discusses a number of significant disputes trends, including hybrid clauses, online dispute resolution and the growth of mediation.
What is your role in dispute resolution?
Currently I am a partner in the litigation and arbitration department with Cuatrecasas. Most of my professional time, around 80%, is spent acting as an external lawyer (advisor) in commercial litigation, arbitration or mediation. I spend the other 20% acting as a provider, both as an arbitrator and as a mediator, in commercial diputes.
What made you specialise in dispute resolution?
Creativity. I enjoy solving disputes, and have done so ever since I was a kid. Also, the passion I have perceived among litigators/problem solvers has no comparison in other fields of law. I like to use my best efforts to convert the dispute into a business opportunity, looking for win-win solutions through innovation, creation, collaboration and cooperation.
Is there a particular area you focus on?
I mostly focus on negotiation, commercial mediation and judicial litigation, although I also am quite busy in commercial arbitration. Contracts, product liability, torts, pharmaceuticals, distribution and agency, are my main areas of specialisation.
Which processes do you use most frequently?
I use processes in the following order: first, negotiation; second, litigation; third, arbitration; and, finally mediation, even though I always recommend the use of mediation as the second process when negotiation fails, regardless of the existence of a jurisdiction or arbitration clause.
In the last month I have increasingly used med-arb, that is, if negotiation fails, we try mediation and if there is no agreement, then arbitration.
How is the market currently addressing parties’ needs?
In my view, market is not addressing parties’ needs yet. It is truth that there is an incipient and increasing movement to offer and make parties available with different ADR to cover their needs, but this is still far from what the parties really need. I consider that most of the time the parties are still unaware of the resources they have to fulfill their needs, and the easier way for parties, and for in-house lawyers, is to follow the traditional path, which is litigation, and not take the risk to try untested, unknown or new ways of ADR.
Do you think users have access to the full range of dispute resolution processes?
I think the full range of dispute resolutions processes are available to users, but not with the quality, characteristics and requirements to cover parties’ needs. In this sense, we have court litigation, but the timing, global cost, breach of commercial relations and uncertainty of the final outcome do not match the needs of users. We also have arbitration, but they face similar problems than court litigation at a higher cost.
Commercial mediation is still starting to develop, and there is limited experience, only a small number of very well qualified local mediators, few institutions administering mediations, few lawyers recommending it, and most users are still unfamiliar with this form of ADR.
What improvements do you think are necessary?
There are many improvements to implement, that I would summarise in five measures: better knowledge to users and providers of ADR methods; education (starting at the primary school level) in ADR; divulgation and promotion of ADR by administrations and governments; incentives for users to use ADR by reducing timing and costs, or by increasing costs in case of not using ADR; formation and specialisation of professionals and providers in commercial ADR to render exceptional service to cover parties needs.
Are there any trends in dispute resolution specific to Spain?
The vast majority of users are still uneasily using litigation, but young and well educated generations tend to escape from court litigation and welcome other ADR processes, even ODR: online dispute resolution and the use of technology is paramount among young people and will also be transposed to dispute resolution. In the future, court decisions will be rendered by a computer or by an AI system, and lawyers will no doubt need to develop other capabilities and types of services.
How do you think the dispute resolution processes are likely to change in the future?
Users need to solve their disputes in a very rapid and cost efficient way, and they will look to ADR in order to fulfil these needs, and lawyers will have to adapt to it and modify their way of rendering dispute resolution services. Also, and as mentioned in the answer to the prior question, technology will change ADR, as it will change medicine, or any other sector.
In my view, in consumer disputes, ODR is growing extraordinary fast. In commercial disputes there is a vast inversion of professionals educating themselves in mediation, but the number of mediations remains very low. However, even though the main developments are currently focused on the formation and courses in mediation, I expect that the use of the mediation process will also grow in the near future.
Which mechanisms would you like to see promoted in the future?
Obviously, mediation. The Spanish government, and many local governments, as well as public services, have announced measures to publicise, promote and encourage mediation. It has also agreed to cooperate with private institutions (Bar associations, judge associations, chambers of commerce) to use mediation as the main way to solve disputes, as a preferred mechanism over litigation and, to some extent, also over arbitration.
How could an improved cross-cultural dialogue promote different forms of dispute resolution?
The generalisation of industry standards would be extremely helpful to promote specific forms of ADR. In international commercial relations, even if it mainly is for the avoidance of court litigation in the country of one of the parties, both parties are used to apply specific neutral ADR in case of disputes, that clearly leads to use this standard instead of litigation in court, which also means to improve the system to solve disputes.
In this sense, for example, arbitration and its benefits (enforcement of arbitration awards, good average on timing, reliability and reputed arbitrators, and understanding of the sector, among others) has been mainly adopted as a common standard among many industry sectors in international business to solve their disputes, and the same effect could be obtained in mediation.
How could cross-border disputes processes be better streamlined?
I would apply here the expression “Think globally, act locally”. The same type of measures to improve efficiency in ADR methods in each local jurisdiction would most probably be applicable to cross border disputes. In this sense, reducing time and cost while improving efficiency, as well as developing new business opportunities for the parties and avoiding the uncertainty of a court or arbitral decision, should make up enough reasons for the national and international users to at least try a new method to solve their controversies.
For this, they also need a good and reliable expert international mediators and institutions, both able to understand the business and the industry sector, and the possibility to enforce mediation and settlement agreements as if they were court decisions or arbitration awards.
Interviewed by Natasha Mellersh.
Juan Antonio Ruiz has extensive experience in Spanish and international litigation and commercial arbitration and mediation. He also works as a mediator. From 2006 to 2007, he worked as a foreign lawyer at the law firm Paul, Weiss, Rifkind, Wharton & Garrison in New York. An associate lecturer of civil law at Universitat Pompeu Fabra (Barcelona), he frequently lectures on postgraduate courses and seminars in Spain and abroad. Juan has written and co-written over 40 publications in his field.