Legal Conflict Resolution and Judicial Authority

Jurisdiction: Legal Conflicts and Resolution

Legal Conflicts and Resolution Mechanisms

Social Conflicts Regulated by Law

• In societies, conflicts are inevitable, necessitating the creation of mechanisms for conflict resolution.
• Law, as a set of legal rules governing a society, establishes the parameters for developing social relations. The State, under the rule of law, regulates these relations.
• The Law does not cover all situations and social relations. There are extra-legal situations that do not fall under the “Law umbrella”:
  • Customs and traditions (e.g., emotional and familial relationships).
  • Due to the complexity and evolution of society, regulating everything is prevented (e.g., technology and globalization).
• The Law's scope is limited to legal relations. These are the ones in which the legislative power has established rules that should govern them:
  • They define the scope and development of these social relations.
  • They recognize rights, obligations, and responsibilities to those involved.
  • Generally, these rules are imperative (compulsory):
    • Members of society are subject to and must comply with them.
    • Their compliance can be enforced through coercion, using the State's monopoly on power to guarantee social peace.
• A legal conflict arises when there is a breach of Law. It implies:
  • The solution to the conflict must be found in legal acts or regulations.
  • Conflicts should be solved through the ways established by legal norms and mechanisms recognized by Law.
  • The solution can be imposed by coercion. Due to the monopoly of the rule of law, the State is the only legitimate entity to impose the legal solution. This power is not recognized for citizens or social groups.

Ways of Solving Legal Conflicts: Self-Protection, Auto-Composition, and Hetero-Composition

Self-Protection in Legal Disputes

• In primitive societies, self-protection was the only mechanism available to people to solve conflicts (e.g., lex talionis).
• One of the parties to the conflict imposed the solution (direct action) on the other party (even by using force) (individual, group, clan, family, etc.).
• It barely exists nowadays, largely replaced by collective coercion (used by the State's power of force).
• Some examples of self-protection include:
  • Military forces (e.g., Ukraine war).
  • Some exceptional cases within the Rule of Law are:
    • Article 592 of the Spanish Civil Code: Allows cutting branches of trees from a neighbor's property when they fall into one's own property.
    • Article 20.4 of the Spanish Criminal Code: Self-defense as a justification to commit a crime.

Self-Composition: Voluntary Conflict Resolution

Voluntary agreement of both parties to solve the conflict by themselves or by addressing it to a neutral third party that does not have superior powers over the parties (the third party does not impose the solution over the parties).

Features:

• Parties try to solve the conflict by themselves or with the help of a third party they choose.
• Parties to the conflict are not obliged to end the process with a solution.
• In case of participation of the third party, its proposals are not binding.
• Possible during litigation or without it.
• Parties partially or fully resign from their initial positions/requirements.
• They partly or fully recognize rights/requirements of the other party.

Advantages for Parties

• Can prevent deeper conflict between parties.
• Usually brings at least partial satisfaction of both parties’ interests (there is no winner-loser scheme; there is a winner-winner scheme).
• Allows parties to analyze the problem and identify the most important questions.
• Less time and cost-consuming.
• Often, reduces emotional stress of resolution, too.

Advantages for Society

• Reduces delays in judicial proceedings.
• Reduces costs of justice for all users.
• Increases civic engagement and creates public processes.
• Helps reduce the level of tension and conflict in a community.

Disadvantages of Self-Composition

• Usually, the execution (as the process in general) is voluntary.
• Is limited by legislation and not possible in all legal conflicts.

Some forms of self-composition solutions:

1. Way: Self-composition.
2. Type and examples:
   1. Unilateral: Resignation and acceptance.
   2. Bilateral: Withdrawal, negotiations, and compromise.
   3. Trilateral: Mediation and conciliation.

Mediation: Facilitating Agreement

A voluntary and structured process, during which an impartial and neutral third party (mediator) having no power to make a decision helps the conflicting parties – under the cover of confidentiality – to communicate and reach a solution acceptable for both of them.

The main power belongs to the parties, because they:

• Can retain their control over the outcome of their conflict.
• Can accept or reject any aspects of the process or the ultimate agreement.

• Possible during judicial process or out of judicial process.
• Mediator: private person.
• The agreement may need judicial confirmation to be enforceable.

Conciliation: Proposing Solutions

A process, during which an impartial third party (conciliator) having no power to make a decision helps the conflicting parties to reach a solution acceptable for both of them, by proposing possible solutions.

The main power belongs to the parties, because they:

• Can retain their control over the outcome of their conflict.
• Can accept or reject any aspects of the process or the ultimate agreement.

• Possible during judicial process; sometimes it is an obligatory requirement to initiate the process.
• Conciliation in civil matters is performed by the Clerk of Justice (Letrado de Administración de Justicia) of the Court of First Instance or Commercial Court or Judge of Peace.
• No need for judicial confirmation.

Most legal conflicts can be solved through auto-compositions (legal conflicts based on legal relations based on the voluntariness of the parties).

• However, there are few exceptions based on public interest:
  • Some issues related to minors or persons with disabilities.
  • Conflicts that are not voluntary (e.g., civil status, personal capacity, immigration law).
  • Public offenses.
  • Interests of the public administration or institutions (e.g., treasury and tax issues).

Hetero-Composition: Imposed Solutions

Parties to the conflict submit their dispute to a third party that has a superior position over the parties, and their decisions are mandatory for the parties.

• Decisions of the third party are obligatory, irrevocable, and enforceable.

LITIGATION, ARBITRATION.

Arbitration: Private Dispute Resolution

It is a process in which the third party, impartial and with a prevailing/superior position to the parties of the conflict, decides on how to resolve a conflict, making a decision that is mandatory to enforce.

Features:

• It is a private body that does not form part of the judicial power.
• Usually, the parties agree in advance that in case of conflict they would go for arbitration, e.g., at the moment of the conclusion of the agreement.
• Not all kinds of conflict may be submitted to arbitration (only civil, commercial, labor). Only dispositive matters!
• The intervention of the arbitrator always finishes with a decision about the conflict.
• Arbitration award (laudo arbitral) is treated as res judicata and includes mandatory enforcement.
• Does not create legal precedent (in the case of Spain – case law).

Litigation: Public Authority Resolution

Features:

• Applied to all kinds of conflicts.
• Performed by the Courts, which are a public authority acting on behalf of the King.
• The judgment is final and mandatory to enforce and is res judicata.
• Coercive measures and sanctions based on enforcement can be applied.

Alternative Dispute Resolution (ADR)

The judicial process is the primary resource for the resolution of legal conflicts. However, ADR (Alternative Dispute Resolution) (mediation, conciliation, etc.) is gaining prominence in our system.

They are promoted for reasons of efficiency, for the acceleration of the resolution of legal conflicts, and because they contribute to pacification.

Especially relevant in Private Law, but they are also making their way into Public Law. Organic Law 1/2025 on the Efficiency of the Public Justice Service establishes measures to promote it, e.g., to file certain civil claims, first you have to go to MASC (Means of Alternative Conflict Resolution) as a procedural requirement.

Judicial Power: Content and Functions

Judicial Power: Concept and Content

• Rule of Law State: Principle of Separation of Powers, which states:
  • Legislative: In charge of passing Acts and regulations.
  • Executive: Designs the political action of the government.
  • Judicial: Judicial power, in charge of judging and enforcing legal decisions.
• Jurisdiction represents a legal and civilized mechanism to solve social conflicts through the decision of a public body (exclusively, Courts and Tribunals). These decisions are imposed on the parties through coercion.
• Article 117.3 of the Spanish Constitution: “The exercise of judicial authority in any kind of action, both in passing judgments and executing judgments, lies exclusively within the competence of the Courts and Tribunals established by the law, in accordance with the rules of jurisdiction and procedure which may be established therein.”

Content of Jurisdiction

1. Jurisdictional: Decision (solution of legal conflicts in a definite and irrevocable way) and enforcement (guarantee that parties will comply with the judicial decision).
2. Organization: Documentation (courts issue official documents as proof of any act) and management (courts define their own action and the intervention of parties and other persons within the judicial proceedings).

Functions of the Judicial Power

• There are three main functions of the Judicial Power:

1. Protecting Citizens' Rights and Interests

   • The judicial power is a public service for citizens. It is in charge of safeguarding and protecting violated subjective/substantive rights and legitimate interests, both individual and collective, that the legal system recognizes for legal subjects.
   • Right to Effective Legal Protection: Article 24.1 of the Spanish Constitution: “Every person has the right to obtain the effective protection of Judges and Courts in the exercise of his or her legitimate rights and interests; in no case may they go undefended.”

2. Protecting Law and Legal Order

   • The judicial power must ensure the Law is applied.
   • This legal order principle encompasses:
     • Control over the activity of citizens (e.g., crimes).
     • Control over the activity developed by the public administration and the State powers (executive and legislative power). This is a negative control that is divided into (depending on the Courts that exercise the legal order):
       • Regular Courts: Review of the legality of regulatory powers, as well as provisions without the status of law and the legality of administrative sanctions. Article 106.1 of the Spanish Constitution.
       • Constitutional Court (it is outside of the Judicial Power): Control of the legality of Acts and interprets the Spanish Constitution. Articles 153.a and 161.1.a of the Spanish Constitution.

3. Judicial Creation of Law: Case Law

   • When Courts and Tribunals pass judgments, are they creating law?
   • Traditionally, within the Civil Law system, judgments are not considered a source of law. Sources of law are only: (i) Acts and regulations (wide application) and, if not applicable, custom and general principles of law (Article 1.1 of the Spanish Civil Code).
   • Value of case law: Article 1.6 of the Spanish Civil Code: “Case law shall complement the legal system by means of the opinion repeatedly handed down by the Supreme Court in its construction and application of written laws, customs, and general legal principles.”
   • However, it is complicated to affirm that case law does not create law:
     • Ordinary Courts: Non-jurisdictional agreements of the Supreme Court or legal institutions created by Supreme Court case law.
     • Constitutional Jurisdiction: Interpretive judgments, where the Spanish Constitutional Court established a unique interpretation of the Law in accordance with the Constitution (e.g., Constitutional Court Judgment 169/2021 of October 6).
     • European Jurisdiction: By the European Court of Human Rights and the Court of Justice of the European Union.
   • Therefore, ordinary case law could be considered a source of law subordinate to written law and the European and Constitutional Courts' judgments (Article 5.1 of the Organic Law of the Judicial Power).

Procedural Law: Concept and Characteristics

• Procedural Law is the part of legal science that encompasses the norms that deal with the requirements and effects of the judicial process. It includes: (i) procedural norms (that regulate the process) and (ii) organic ones (creation of judicial bodies, their activity, and scope of action).
• Characteristics:
  • Public Law.
  • It is an instrumental branch: helps to protect rights.
  • Imperative rules (principle of legality): procedural acts are not disposable for the parties.
  • Main Procedural Acts: Organic Law of the Judicial Power (LOPJ), Civil Procedure Law (LEC), Criminal Procedure Law (LECRIM), Administrative Procedure Law (LJCA), Labor Procedure Law (LJS), Organic Law of the Constitutional Court (LOTC).