Commercial mediation in Spain

The mediation culture in Spain is not strong, although legislation passed in recent years has enhanced its status. There is no obligation to mediate, unless parties have contractually agreed to do so. However, in some types of dispute (in particular family disputes) the courts are increasingly making orders compelling parties to mediate, despite there being no legal obligation on parties to do so. There are no costs implications for failing to mediate, unless previously contractually agreed, in which case failure to mediate will constitute a breach of contract. Mediations are confidential. Settlement agreements are enforced as contracts, although the parties may choose to execute their agreement before a notary public to make their agreement enforceable. Individuals must satisfy certain criteria in order to act as mediators.

What is the status of mediation in this jurisdiction?

Although mediation is a recognised form of ADR, there is not a strong mediation culture in Spain. However, Spanish legislators’ growing interest in the practice of mediation led to the passing into law of the Spanish Mediation Act 2012 (Ley 5/2012, de 6 de julio) on mediation in civil and commercial matters (the “Mediation Act”). The Mediation Act transposes into Spanish law Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters.

Also enacted was Royal Decree 980/2013 (Real Decreto 980/2013, de 13 de diciembre), which developed certain aspects of the Mediation Act (the “Mediation Royal Decree”). More specifically, it set out the requirements to be a mediator in Spain and created a register of mediators and mediation institutions.

Furthermore, in January 2019, the Spanish government approved a draft bill on mediation reform whereby mediation would become semi-compulsory for certain types of disputes, such as minor cases on property law, shareholder disputes, inheritance disputes or family law matters, that currently go directly to the courts. According to this draft bill, mediation would also become available within court proceedings if the judge considers that, given the status of the particular case, this mechanism makes sense.

However, this draft bill has not yet been passed or even discussed in the Spanish parliament.

Therefore, even in the absence of official statistical data on mediation figures since the adoption of the Mediation Act, it can be presumed that mediation culture is far from being entrenched 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.

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.

Are mediations confidential?

Yes, mediations are intended to be confidential. Article 9 of the Mediation Act states that the process and materials used in the proceedings must remain confidential.

Agreements to mediate also usually include express confidentiality clauses establishing monetary penalties for a breach of the duty of confidentiality.

Does failure to mediate attract adverse cost consequences?

No, there are no cost-related consequences for parties who fail to mediate. However, 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 comply with 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.

Likewise, 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 on the Spanish mediators register is voluntary, except for insolvency mediators. However, registration is a means of accrediting mediator status.

Impartiality is a requirement for mediators. Furthermore, the Mediation Act includes a provision requiring mediators to have civil liability insurance.