Commercial mediation in Spain
How is mediation conducted?
A neutral mediator is directly appointed by the parties. The mediator assists the parties while working towards a negotiated settlement of their dispute, but the parties remain in control of the process and the outcome of the mediation at all times. Parties are often assisted by their lawyers during mediation sessions and the costs are usually shared between the parties, especially if an agreement is not reached.
Is there any obligation on litigants to mediate?
No, there is no legal obligation on litigants to attempt mediation in commercial disputes, unless they have previously agreed to do so.
However, the December 2020 draft bill establishes that for civil and commercial proceedings, the parties must file a document proving that pre-trial negotiation has been attempted. Amongst other methods, this requirement will be considered fulfilled if mediation is previously conducted.
Labour, criminal and insolvency proceedings are excluded from this requirement, as well as matters in which one of the parties is an entity belonging to the public sector.
Does the court have powers to support mediation?
The Spanish Civil Procedure Rules do not provide any particular judicial powers to support mediation. Judges may invite litigants appearing before them to mediate, but they cannot act as mediator themselves in that mediation. However, courts are increasingly making orders compelling parties to mediate, particularly in family disputes, despite the lack of any legal obligation for the parties to do so.
The December 2020 draft bill contains an amendment to the scenarios in which mediation procedures may be initiated under the Mediation Act, including judicial referral subject to the parties’ consent.
Does failure to mediate attract adverse cost consequences?
No, there are no cost-related consequences for parties who fail to mediate. Where such a failure is in breach of a prior agreement between the parties to mediate, refusal to do so could constitute a breach of contract, although any damages payable would be at the discretion of the judge.
How are settlement agreements enforced?
As a general rule, settlement agreements reached after mediation will be enforced like any other contractual agreement. However, the parties can decide to make their agreement judicially enforceable by executing it before a notary public (provided that the parties meet certain requirements). If the mediation process takes place while judicial proceedings are pending, any eventual settlement agreement reached between the parties could be validated by the court, in which case the settlement agreement would also become judicially enforceable.
Is there a system of accreditation and/or regulatory body for mediators?
Part three of the Mediation Act, “Mediator status”, lays down the requirements for acting as a mediator. Mediators must hold an official university degree or have advanced vocational education and specific training to practise mediation, which can be gained by completing one or more specific courses run by duly certified institutions.
Chapter two of the Mediation Royal Decree establishes that the specific training to practise mediation must have a minimum duration of 100 hours. Mediators are also required to continue their training, receiving specific mediation training for at least 20 hours every five years.
Registration of mediators in Spain is voluntary, except for insolvency mediators. Registration is a means of accrediting mediator status. However, according to the 2020 draft bill, mediators acting within the compulsory pre-trial negotiation or as a consequence of judicial referral, must be registered.
Impartiality is a requirement for mediators. Furthermore, the Mediation Act includes a provision requiring mediators to have civil liability insurance.