The Spanish Parliament is currently working on a draft of the Mediation Act (the Act), which implements Directive 2008/52/EC of 21 May 2008.
Its features are summarised below:
- The Act is restricted to civil and commercial matters with the parties consent needed to submit to mediation. Failing agreement, the Act will only apply when one party is domiciled in Spain and the mediation is to be conducted in a Spanish territory.
- The underlying principles of the Act are: the process is voluntary, impartial, neutral, confidential, and generally in good faith.
- The Mediator should have a University degree, professional liability insurance and be enrolled on the Register of Mediators.
- The procedure is flexible and the parties can decide on the basic procedure. The Act merely provides the prerequisites for the validity of the settlement agreement, which may be enforced like any other judgment or order. However, for the settlement agreement to be enforced in another State it must be notarized. Similarly, any settlement agreement reached outside of the jurisdiction shall have effect in Spain only if authorized by an authority whose jurisdiction is equivalent to the Spanish authorities or are executed before a notary in Spain.
- Mediation agreements will not be enforced in Spain if they are manifestly contrary to public order.
- The maximum duration of the mediation procedure is two months, renewable for another month.
- An important aspect of the Act is that for small claims, ie, those that do not exceed EUR 6000, the parties are required to have attempted mediation before any trial. In all other proceedings the judge must inform the parties at the pre-trial hearing of the possibility of mediation.
However, the draft Act does not oblige the parties to mediate, or penalise them for refusing to mediate, except in the case of late acceptance of the claim by the defendant immediately before trial. In this case, the draft Act states that if the plaintiff offered mediation before the claim and it is rejected the defendant shall be ordered to pay the plaintiff's legal costs.
We shall have to wait and see how the Act is applied once in force and to monitor the take-up of Mediation in Spain.