Friendly resolution within the context of uncertainty of COVID-19
In the Law there is a well-known saying that says: “better a bad agreement than a good court proceeding”. I believe that we can clearly understand what it means to be involved in a lawsuit as “interested party”.
I have sometimes had the chance to see how the client faces the negotiation process: not giving it as much importance as it should. From a rigid mentality perspective, and not even assessing in a reasonable and objective way, the client has rejected the offer of the counterparty and the case has ended up in court. Because we see the case (the matter) as a problem. Someone we have been collaborating with, because – for example – we have started a business, becomes now our competitor; instead of collaborating in order to reach a friendly solution in the case.
Now more than ever, as a consequence of COVID-19, it has become necessary to give to the negotiation the deserved importance: it is a procedure prior to the initiation of a court proceeding by virtue of which the parties must try to reach an agreement and therefore avoid the initiation of a lawsuit.
In general terms, Spanish courts are overworked and stuck. They are busy with thousands and thousands of cases. This is how we have been seeing the courts since many years ago.
At OTIS Advocaten we have always taken very seriously the negotiation as a previous procedure. We are fully aware of the issues (besides the case itself) arising from the initiation of a court proceeding.
In the first place, the economic factor. A trial implies a big monetary disbursement by the client, especially if there are judicial documents from abroad involved. Reports, translations and similar proceedings might represent big costs.
On the other hand, it is important to keep in mind the personal factor. In a court proceeding this means that there is a problem with someone else, which is never pleasant. Besides, the courts are overworked as mentioned before, which means that it is possible that you have to wait several months, even years, to obtain a judgment from court.
Lastly, there is a judicial factor. Judges and courts carry out their work properly but the Law changes and can be interpreted. With this we mean that going to court implies taking some risks because nobody knows how the court proceeding might end and what the criteria of the judge is when interpreting the Law.
In all webinars and conferences we have been attending it has been said that the situation caused by COVID-19 has brought more uncertainty to the legal world. The negative factors mentioned before have increased due to the pandemic and the quarantine. We find ourselves in an economic crisis (economical factor). The COVID-19 will open the door to many court cases, which will increase the collapse of the courts. This means that it might take longer to obtain a sentence (personal factor). Considering the new law that has been approved by the Spanish Government to face the virus, we do not know what criteria will the Judges adopt at the time of applying the Law, which means that the uncertainty will increase (judicial factor).
In conclusion, now more than ever from OTIS Advocaten we encourage you to invest in good legal advice for the purposes of closing the case in a friendly way and as beneficially as possible for both parties.