Royal Decree-Law 5/2012 on mediation in civil and commercial matters was published on March, 6th, trying to provide a practical channel to solve certain conflicts between parties, as an alternative to the judicial process and arbitration.
Its field of application is strictly circumscribed to the State’s competences in terms of commercial, procedural and civil law. It excludes criminal mediation as well as mediation with Public Administrations, labor mediation and consumers-related mediation.
It includes the possibility of mediation in cross-border conflicts, which are conflicts in which at least one of the parties is domiciled or usually resides in a state different from the one in which any of the other affected parties is domiciled.
Mediation is based on the intervention of a neutral professional who facilitates the fair settlement of the conflict by the parties themselves, allowing them to maintain underlying relations, and keeping control over the conflict termination.
Mediation helps considering the Courts of Justice as the last resort, if it hasn’t been possible to solve the situation with the mere will of the parties, to be used only when the confronted parties haven’t been able to settle the controversy with an agreement.
Mediation is based on willfulness and free decision of the parties, and also on the intervention of a mediator, who is supposed to work actively in order to have the parties themselves find a solution to the controversy. The royal decree-law is based on flexibility and respect of the autonomy of willfulness of the parties, which will be expressed in the final agreement. The latter, if the parties want to, can be notarized, and thus considered as an enforceable right.
This voluntary nature would not be incompatible with the inclusion of determined factors that could influence the will of the parties when it comes to reaching an agreement by themselves. This way, some European countries, in order to impulse mediation, have granted more power to judges so that they can order the parties with an unreasonable behavior towards mediation or extrajudicial conflict resolution to pay costs.
The second axis of mediation is the loss of prominence of the law in favor of a dispositive principle also governing the relations which are the object of the conflict.
The mediator (whether there is one or several), is the cornerstone of the scheme, as he/she is the person in charge of reaching a solution that will be voluntarily accepted by the parties through dialogue. The mediation activity displays various professional and social circles, and it requires skills that in many cases depend on the very nature of the conflict.
A mediator must have a specific training to carry out his activity, given by institutions duly authorized. It is paradoxical that, on the one hand, a habilitating training is required but we don’t even have teachers with such a diploma; on the other hand, arbitrators, who settle conflicts between parties, don’t need any specific habilitating training, and mediators, who do not settle conflicts and are also chosen by the parties, are required to have a specific training that, as of today, we don’t even know what it is.
The length of the mediation proceeding will be as short as possible and the intervention will be concentrated in a minimum number of sessions. It might also have been interesting to fix a maximum term to solve a conflict by mediation.
The mediation services and institutions play an important part, as they carry out a fundamental job to sort and impulse mediation processes.
It is important to emphasize the recognition of the agreement as an enforceable right – what will happen when notarized – whose enforcement can be claimed directly before the Courts.
The third axis of mediation lies in the mediation agreement regulation, which is the “dis- judicialization”, consisting in not necessarily determining the content of the restorative or reparative agreement.
The flexible framework provided by the royal decree-law intends to be another incentive to impulse the use of mediation, so that it does not have repercussion on the forthcoming procedural costs, and it can’t be used as a dilatory strategy to comply with the contractual duties of the parties either.
To do so, and in order to make the use of mediation easier, an easy-processing proceeding has been articulated, cheap and quick.
Title I regulates the material and geographical scope of the law, its application to cross-border conflicts, the effects of mediation on statute-bar and expiry, as well as the mediation institutions.
Title II lists the information mediation principles; the principle of willfulness and free disposition, impartiality, neutrality, confidentiality, and also the rules that must conduct the parties’ behavior during mediation, such as goodwill, mutual respect, as well as the duty to collaborate and support the mediator.
Title III contains the minimum status of the mediator, the requirements that must be met, and the principles of his actions.
Title IV regulates the mediation process. It is a simple and flexible process allowing the parties involved in the mediation to freely determine the fundamental steps. The regulation only establishes the necessary requirements to validate the agreement that both parties can reach, always based on the premise that reaching an agreement is not compulsory.
Title V states the enforcement proceeding of the agreements, adapting it to what is foreseen by the Spanish law. It does not stipulates any difference with enforcement of cross border mediation agreements to be fulfilled in another State, so the latter must compulsorily be notarized in order to be considered as an enforceable right.
Mediation is included among the functions of the Official Chambers of Commerce, as they are considered as mediation institutions.
A series of modifications related with procedural law has also been stated in order to make the implementation of mediation easier within the civil process, regulating: (i) the faculty of the parties to have the object of the trial and to submit it to mediation, (ii) the possibility for the Judge himself to invite the parties to reach an agreement and, in order to do so, or to talk to them about the possible use of mediation, (iii) including the mediation agreement among the enforceable rights within the Spanish civil procedure rules, etc.
Finally, final provision number four states that the Government will promote conflict resolution regarding claims for compensation by means of a simplified mediation process that will be exclusively carried out by electronic means. The parties’ positions – that can’t refer to arguments of law confrontation – will be stated in the application form and the answer sheet the mediation institution will provide. The proceeding can’t last for more than one month – not extendible –, starting the day following receipt of the application form by the mediation institution.
Juan José García