Mediators

Accreditation

Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?

According to the Spanish Mediation Act (article 11), three requirements must be fulfilled by individuals to be able to act as a mediator:

  • they must be free to exercise of their civil rights;
  • they must have an official university degree or superior professional training as well as specific mediation training; and
  • they must take out civil liability insurance or an equivalent guarantee.

Legal entities that include mediation among their functions can also be mediators if they appoint individuals that fulfil the requirements foreseen by the Act.

A Registry of Mediators and Mediation Institutions overseen by the Ministry of Justice has been created in 2013 by Royal Decree. The registration is voluntary except for bankruptcy mediators. This Registry coexists with the Registry of Mediators of each Autonomous Community.

Bankruptcy mediators must be individuals or legal entities that fulfil the requirements foreseen by article 11 of Act 5/2012 and are registered in the Registry of Mediators and Mediation Institutions. Since bankruptcy mediators will become trustees in bankruptcy if debtors and creditors are not able to reach a settlement agreement, mediators must be - or must include if they are legal entities - lawyers, economists or auditors with at least five years of professional experience.

According to the Catalan Mediation Act, any individual may act as a mediator if he or she has an official university degree and is able to provide proof of completion of specific mediation training and professional proficiency, duly updated to the standards established by regulation. Individuals must belong to an official professional mediators association, to a professional association accredited by the department responsible for civil law matters, or to a mediation service provider for the public administration.

According to the Spanish regulation, mediation training programmes will have a minimum duration of 100 hours and they will include both theoretical and practical content. Practical content will take at least 35 per cent of the mediation training programmes.

Regarding Catalan regulation, mediation training programmes must be divided into two parts: (i) general mediation training must have a minimum duration of 110 hours, including practice; (ii) specific mediation training for different areas in the sphere of private law must have a minimum duration of 60 hours, including practice.

Both the Spanish and the Catalan legislators have provided for mandatory continuing professional training for registered mediators. According to the Spanish system, any registered mediator needs to fulfil 20 hours of continuing professional training every five years. In the Catalan system the requirement is 40 hours every two years.

Liability

What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?

According to the Spanish Mediation Act, article 11(3), mediators shall ‘arrange for an insurance policy or equivalent surety that covers civil liability arising from [their] conduct in any dispute in which [they take] part’. This civil liability insurance or equivalent guarantee must cover damage arising from, among other things, lack of impartiality and breach of confidentiality, professional errors or loss of documentation.

The Spanish Mediation Act provides that the amount guaranteed must be proportional to the complexity of the mediation processes conducted by the mediator.

Allegedly aggrieved parties would be entitled to take direct action against the mediator and, if applicable, against the mediation institution.

Mediation agreements

Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?

As is explained later in more detail in question 15, the Spanish Mediation Act provides for minutes of the constitutive session to be recorded and in principle the basics of the mediation should be included there. That said, experienced mediators have parties enter into a prior written mediation agreement to set the tone right from the beginning and help parties work together in a more effective way.

The terms of these agreements include a description of the dispute, the names of parties and their representatives, as well as that of the mediator, commitment of the parties to confidentiality and to participate in good faith, the place and time of the mediation, the mediator’s remuneration and any agreed questions on cancellation and postponement, as well as any other question deemed appropriate.

Appointment

How are mediators appointed?

There are no specific characteristics for the appointment of mediators. In institutional mediation, that is, administered by a centre be it public (eg, those depending on chambers of commerce and bar associations) or private, mediators are appointed according to the rules of the centre.

The Spanish Club of Arbitration Code of Good Practices in Mediation has a specific section for mediation institutions. Among other recommendations, two make reference to the appointment of mediators. On the one hand, there is a need for these institutions to act independently and neutrally, and furnish full and transparent information about, among other things, the system for appointing mediators. On the other hand, there is a need to ensure that the choice of a mediator is by mutual agreement of the parties, and proceeds with the appointment of mediators as, according to their rules and regulations, it falls to them to make judgments on the basis of objective, transparent criteria, adapting said appointments to the specific needs of each case and, wherever possible, respecting the mutual preferences of the parties.

Experienced mediators are also often appointed by the parties on an ad hoc basis.

Conflicts of interest

Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?

Regarding the duty to disclose conflict of interests, the explanatory statement of the Spanish Mediation Act makes express reference to the European Code of Conduct for Mediators. Later on, article 13 provides that prior to initiating or continuing their task, mediators must disclose any circumstance that may either affect their impartiality or generate a conflict of interests. Such circumstances shall, in every case, include:

(a) all manner of personal, contractual or business relationships with one of the parties; (b) any direct or indirect interest in the outcome of the mediation; and (c) the fact that the mediator, or any member of their firm or organisation, has previously acted in favour of one or more of the parties in any circumstance other than the mediation.

In such cases, mediators shall only be able to accept or continue the mediation where they can give an assurance of their ability to mediate with total impartiality, provided that the parties consent thereto and place such consent expressly on the record.

The duty of disclosing such information persists throughout the mediation process.

Acceptance of mediation places mediators under the legal obligation to loyally fulfil the task entrusted to them. Failing to disclose a conflict of interest would be a failure of this duty and mediators would incur liability for any damage that they may cause.

Fees

Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?

In principle, mediators’ fees in civil and commercial matters are not regulated in Spain and it is parties that negotiate them.

The Spanish Act states that mediators’ fees shall not depend on the outcome of the mediation. This principle is also taken up by the Spanish Club of Arbitration Code of Best Practices in Mediation. This basically excludes the use of success-based fees in Spain. The practice that is more extended is neither a percentage of the sum in dispute nor a lump sum but an hourly or daily rate.

The range of fees advertised in the market varies a lot, from €80 per hour to €400 per hour. One must keep in mind that all the existing legislation on mediation in Spain has not translated yet into a significant number of cases. This means that there are still many mediators offering their services in the market with no real experience and they propose to charge accordingly.

Unless otherwise agreed, the general rule is that fees will be shared equally between the parties.