The new Spanish Mediation Act came into force in March this year. Spanish Legislation has incorporated the EU Directive (2008/52/EC) of May 21st 2008, which establishes the general rules applicable to mediating civil and commercial matters in Spain except consumer, employment and public administration mediations or those involving criminal issues. The Act is applicable in cross-border mediation when at least one of the parties is based in Spain and the mediation takes place in Spain.
The new Act also states the general principle that any mediation is voluntary. If there is a mediation clause in a contract, parties must attempt to mediate in good faith, but none of the parties are obliged to continue with the mediation or to reach a settlement.
Other general principles are that both parties must be on an equal footing in the mediation proceedings; the proceedings and all documents exchanged by the parties will be confidential; and, in the event that a mediation does take place, parties cannot instigate other legal proceedings or start other alternative measures on the same matter whilst the mediation is underway.
To initiate a mediation, the Act states that the mediation can be brought by both parties jointly or just by one of the parties, provided this has been previously agreed.
To start the process the, parties must submit a request to the mediator agreed or appointed by them, and the submission must include the place of the mediation and the language of the proceedings.
The mediator will call the parties to a meeting to inform them about the proceedings. If both parties agree to go ahead, the mediator will take the minutes of the meeting, at which the following should be identified: the parties, the mediator, the object of the conflict, the course of action, the maximum length of the proceedings, the formal declaration from the parties that they voluntarily submit their conflict to mediation, as well as the place and language of the proceedings.
From that initial meeting the mediator will schedule as many meetings as necessary to resolve the conflict. If, finally, there is a settlement, it will bind the parties. Any of the parties can incorporate the settlement into a “Public Deed”, and the Public Deed shall be enforceable via the Courts.
If during the mediation, one of the parties asks for the mediation to terminate, or the maximum period fixed by the parties has been exceeded, or the mediator considers that if is impossible to reach settlement, then, the mediator will declare the proceedings concluded. The costs of the mediation will be shared between parties, even when it has been impossible to reach an agreement.
The new Act also specifics the qualifications that mediators must have. They have to pass specific courses including knowledge of law, psychology, communication and negotiation skills and ethics.
Finally, the Act establishes how foreign mediation settlement agreements can be enforced in Spain. If the settlement is enforceable in the foreign country because a Public Authority with functions similar to the Spanish Authorities has endorsed it as enforceable, then, the settlement will be enforceable in Spain without any further intervention. Otherwise, the settlement can only be enforceable in Spain if both parties jointly incorporate the settlement in to a Public Deed notarised by a Spanish Notary.