Begoña Rivero, SIMA-FSP mediator "The mediator, decisive in the solution of labor conflicts"

Begoña Rivero Barroso is a mediator of the Interconfederal Mediation and Arbitration Service FSP and a lawyer belonging to the Madrid Bar Association. Specialist in labor law, she has 44 years of experience as an active lawyer and 20 years as a SIMA-FSP mediator.

The SIMA-FSP is a joint foundation made up of the most representative business and union organizations at the state level (CEOE, CEPYME, CCOO and UGT) and has its origin in the Agreement on Extrajudicial Resolution of Labor Conflicts (ASEC) signed by the aforementioned organizations on January 25, 1996 (BOE no. 34, of February 8). Since that moment it has been configured as an institution that is entrusted with the management of the mediation and arbitration procedures of each of the successive agreements that have been regulating its activity. It is currently in force el VI Agreement on Autonomous Resolution of Labor Conflicts, signed on November 26, 2020 (BOE no. 334, of 23 December).

In 2018, the General State Administration joined it through the State Secretariat for Employment, at which time the acronym FSP (Public Sector Foundation) was added to its name, so that its resources are public in nature.

The primary purpose of the SIMA-FSP is to promote the prevention and autonomous solution of collective labor conflicts of greater scope than an autonomous community that have arisen between workers and companies or between their respective representative organizations.

___What is the role of the mediator in conflicts work?

The figure of the mediator as a determining element in the solution of labor disputes has not yet been fully internalized in Spain, although since the creation of SIMA more and more companies and workers' representatives are trusting in the intervention of the mediator for the extrajudicial solution of conflicts.

And the importance of this mediation intervention is evidenced by the fact that in the 25 years of its existence, more than 5,000 files have been processed resulting in agreements in a greater number each year.

This shows, in my opinion, that mediation is already accepted as an alternative instrument to the judicial process for the solution of those discrepancies that may arise in the field of the company.

Now I will explain very briefly what the role of the mediator is in labor disputes.

The mediator's intervention, once he has introduced himself and explained the purpose of mediation and the instruments that SIMA has to achieve an agreement between the parties, begins by listening to the parties who explain the reasons for the conflict and the reasons justifying each one's position.Here we already observe that the mere fact of presenting their arguments in a physical environment different from that of the company softens the possible tensions that have previously occurred, to which we must add that by requesting the mediator's intervention, both parties have the desire to solve the conflict without going to court.

It is important to highlight that the mediator, being an external party to the conflict, views it in a purely objective manner and therefore can offer possible intermediate solutions to the initial positions of the parties as a way to avoid judicializing the conflict, since in the end, the solution in a judicial process will always harm the party whose claim is rejected.

How do you become part of the SIMA foundation?

Initially, the founding parties of SIMA, the business organizations and the unions, proposed a list of people from the world of work (lawyers, labor inspectors, university professors...), to intervene as mediators in the conflicts that arose. These listings were renewed after each renewal of the agreement.

Currently, and by application of ASAC VI, there is a single list of 300 mediators managed by SIMA, which increases the independent and impartial nature of the mediators before the parties.

However, the parties may propose and appoint a specific mediator because they understand that said person meets the criteria appropriate to the nature of the specific conflict in question, without this implying that the mediator will act in a partisan manner.  

What is the difference between measurement and arbitration? Which of the two is the most requested?

In arbitration, the parties agree to submit the solution to the conflict to an arbitrator, who is always a renowned specialist in labor law, chosen by mutual agreement of the parties, and normally intervenes in conflicts of interpretation of the agreement.

The designated arbitrator studies the arguments of the parties and the evidence provided to him, and applying the regulations, resolves the conflict through an award that is enforceable from its notification and is binding on both parties.

At SIMA, mediation is the most used instrument. Thus, in 2017, after 20 years of its existence, of the more than five thousand files, only 66 were arbitrations.

What are the problems that a mediator may encounter?

In reality, it is normal that the parties that use this instrument come with a true desire to reach an agreement within the SIMA, but sometimes, it is true that we find that the parties come with the sole purpose of justifying through judicial means that “the attempt” to reach the agreement has been made and without the slightest desire to achieve the agreement.

Fortunately this situation is increasingly becoming a minority.

For those who do not know, why is it important to start a mediation process before going to court?  Do you think that this method really relieves the workload in the Courts?

As I have already pointed out, mediation attempts to reach an agreement that resolves the conflict and whose content is convenient for both parties, even if the result is not their maximum initial goal. The work environment in the company is not harmed.

On the contrary, in the judicial process it is the judge who, once the oral hearing has been held and the arguments of the parties and the evidence presented have been studied, unilaterally decides who is right and upholds or rejects the claim.With this, one of the parties is always harmed in their position and with this the work environment in the company is negatively affected.