Civil and Commercial Mediation

Legal Framework: Law 5/2012

Law 5/2012, of July 6, on mediation in civil and commercial matters transposes Directive 2008/52/EC and establishes Spain's mediation framework.

Scope

Applies to civil or commercial mediations, including cross-border disputes, provided they do not affect non-disposable rights and obligations.

Exclusions: Criminal mediation, mediation with Public Administrations, labor mediation (has its own regulation) and consumer mediation.

Fundamental Principles of Mediation

Law 5/2012 enshrines five principles:

1. Voluntariness: No one is obligated to remain in mediation. Parties may withdraw at any time. The mediator cannot force an agreement.
2. Confidentiality: Everything discussed in mediation is confidential. The mediator has a legal obligation of secrecy and is exempted from testifying in subsequent proceedings about facts learned in mediation.
3. Neutrality: The mediator cannot impose solutions or make value judgments about the parties' positions.
4. Impartiality: The mediator must treat both parties equally. Conflicts of interest require abstention.
5. Party equality: Both parties must have equal opportunities to participate and be heard.

Mediation Process

1. Informational session: The mediator explains the procedure, rules, confidentiality and costs. If a party does not attend, they are deemed to reject mediation.
2. Constitutive session: Parties sign a constitutive document identifying parties, mediator, subject matter, program, expected duration and venue.
3. Mediation sessions: The mediator facilitates communication through joint and/or individual sessions (caucus). Duration should be "as brief as possible."
4. Mediation agreement: If reached, a final record is drafted. The agreement is binding and may be formalized as a public deed.

Judicial Approval

The agreement can be elevated to a public deed before a notary, acquiring enforceable status. If judicial proceedings are pending, parties may request judicial approval, which has the same effect as a judgment.

The Mediator: Training and Registration

Requirements (RD 980/2013): university degree or higher vocational training, minimum 100 hours of specific mediation training (at least 35 practical hours), continuing education (20 hours every 5 years), and professional liability insurance.

The Mediators and Mediation Institutions Registry (Ministry of Justice) is public and voluntary.