La mediación para la solución de conflictos laborales. Experiencia en Andalucía

Résumé

In this research paper, we have analyzed the extrajudicial procedures of conflict resolution, especially mediation, from its origins to the present day. We have found out that, in Spain, extrajudicial systems of conflict are beginning to be established by the Autonomous Communities; therefore, at present, the Autonomous Interprofessional Agreements are more developed than the National and there should be a real balance and coordination between them. At this time, both Extrajudicial System for the Resolution of Labour Disputes in Andalusia (Known as SERCLA in Spanish) and VI Agreement on Autonomous Settlement of Labour Disputes (Known as ASAC VI in Spanish) are focusing on prevention and not only on conflict resolution; since it is necessary to prevent strikes and resolve preand post-conflicts in order to pacify labor relations. The SERCLA is characterized by being very advanced in such important aspects as individual conflicts, prevention and virtual mediations. The social recognition of mediation is currently inadequate, as society is not sufficiently aware of these means. There must be a State agreement on the promotion of mediation as a public service by the administration, as well as by lawyers, judges, trade unions and federations of employers. In addition, successive legislative reforms have attempted to prevent massive job losses in economic crises, and depending on the governments, in some cases the use of mediation has been promoted more than in others, so there has been no balance or continuity. After the health crisis, came the energy crisis and nowadays, we are immersed in a major economic crisis that is producing tension and conflict. We have suffered may changes, and currently, in the field of work, figures such as Temporary employment regulation files (known as ERTE in Spanish) or teleworking have emerged and had taken root in our working environment. In the time of pandemic, there has been very deficient legislation from a technical point of view and the opportunity to resolve individual conflicts using mediation has been missed. On-line mediation was very useful during the pandemic in Andalusia in particular, as Centre for Mediation, Arbitration and Conciliation (Known as CEMAC in Spanish) stopped providing services and SERCLA maintained them in an optimal way. Currently, almost all mediations are virtual. Another way to enhance mediation will be through collective bargaining, incorporating the use of these means into collective agreements. The high level of litigation that exists at the moment must end, we must choose consensus and dialogue and promote all those procedures that pacify society. This requires an increase in the number of mediators and that they are well trained from a legal and digital perspective and in obtaining sufficient skills to develop a good job and that society really knows the benefits of these procedures. There should be common mediation training for all of Spain together with the development of ethical codes. Therefore, we must continue to demand executive, consolidated and cohesive labour legislation that comprehensively and rigorously addresses extrajudicial means of conflict resolution and especially mediation; as well as we must demand the economic and material resources necessary for its optimal development. We must make mediation a powerful and real alternative to the courts, and that it has the same weight and social recognition as them, so that citizens can freely choose which route is most appropriate to solve their needs and interests. Only in this way, litigation will decrease, the courts will be lightened and citizens will obtain in a more agile, lasting, economical and just way the resolution to their problems, as well as the protection of their rights, achieving a more peaceful, just, balanced and happy society.