Author: Klaudia Bednarczyk
Publication date: 28/07/2023
The concept of mediation
Mediation is a process where the parties meet together with a mutually selected neutral person, known as a mediator. The mediator assists them in reaching an agreement. Mediation is an immense option to solve legal problems in a brief period. This is especially useful in countries like Spain, where the judiciary is inefficient and the court process can take many years.
Jurisdiction status mediation
The most crucial issues regarding the mediation process are regulated in Law 5/2012 of 6 July 2012 on mediation in civil and commercial matters, which transposes Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 into Spanish law.
Some certain elements of Law 5/2012 of 6 July 2012, were implemented in Royal Decree 980/2013. The scope of this Act is applicable in civil and commercial matters and it directly excludes penal mediation, mediation with the public administrations, labor mediation, and mediation over consumer matters.
Principles of commercial mediation
a. Voluntary basis and free disposal
In the eyes of the law, mediation is voluntary and nobody is duty-bound to continue in a mediation procedure, nor to find the middle ground in the case.
b. Equality of the parties and neutrality of the mediators
Parties who intervene in the mediation procedure shall be granted full equality of opportunities. Apart from that, respect is important for the points of view expressed therein, without any suggestion or pressure from the mediator.
c. Confidentiality
The mediation procedure and documentation used in it should be confidential. This obligation covers the mediator and the parties that intervene, so they may not betray information they may access arising from the procedure.
Duration of procedure
The mediation procedure should be as comprehensive as possible. It should also include only a necessary number of meetings that are needed to resolve a problem and make a settlement.
Enforcing an agreement resulting from mediation
In the frame of formalization of the enforceable title, the parties may have the agreement notarized in a public deed. When an agreement has resulted from a mediation conducted after initiating judicial proceedings, the parties may request the court to validate it. They can do this under the terms outlined in the Civil Procedure Act.
System of Accreditation of Mediators in Spain
Natural persons who are in full exercise of their civil rights are permitted to become a mediator. In order to achieve a mediator title, practical and theoretical courses are demanded by law. The Register of Mediators and Mediation Institutions was established in the royal decree to facilitate the public availability and transparency of mediation. There you can find all the relevant information on the activities of professional mediators and mediation institutions.
Conclusions
It is common for mediation clauses to be included in commercial contracts. Actually, it implies that if a dispute arises, it should be resolved first through mediation rather than litigation. On this matter, the submission of the dispute to the court for resolution can be slow and costly for disputants. According to a working paper from the Central Bank of Spain, judicial ineffectiveness can also have a significant impact on business investments. Therefore, companies should consider mediation as an alternative dispute resolution method. Not only for the efficiency of doing business but also for the efficiency of the judicial system and the national economy.