Today’s post comes from one of our JAMS International panellists, Antonio Sanchez-Pedreño. Mr. Sanchez-Pedreño is based out of Spain and specializes in multi-party corporate and commercial arbitration.
The Spanish Government has approved the Real Decreto – ley, (or Royal-Decree mediation law) dated March 5, 2012 on mediation in civil and commercial matters, as an effort to implement the EU Mediation Directive.
The Mediation Law became effective on March 7, though it must be voted upon by Parliament within 30 days of its approval by the Government. Certain changes may be made to the text prior to final approval by Parliament.
The more relevant measures introduced by the Mediation Law are:
- It provides for a voluntary submission of the parties to mediation (as opposed to mandatory mediation), though it allows the courts to invite the parties to mediate. No material incentives are provided to encourage parties to mediate.
- The mediation process requires a formal commencement of the process by signed minutes identifying the parties and the dispute, and final minutes, closing the procedure. There are several strange quirks in the way the process has been established (for example, it fails to consider refusal to sign the final minutes by any party or the mediator), and introduces some unsuitable provisions such as the obligation of the mediator to sign the settlement agreement.
- The mediator and the parties are subject to confidentiality obligations in relation to any information derived from the mediation. The information disclosed in the course of the mediation cannot be used before a court or tribunal if the parties do not reach an agreement.
- Once the request for mediation is filed, time limitation periods stop running.
- Training is required to become a mediator. The Mediation Law has not provided for any specific guidelines as to the extent and exact contents of a mediator training course, and has left their determination to a subsequent regulation. At this stage, it is unclear as to how international mediators will be considered as qualifying for the purposes of the Mediation Law.
- The settlement agreement entered into by the parties can be enforced by the court or tribunal that heard the dispute. Settlement agreements made in another EU Member State can be enforced in Spain where an equivalent competent State authority has granted enforcement.
Ultimately, establishing a legal framework for mediation services provided by the Mediation Law will help expand dispute resolution in Spain. It will also make it easier to propose Spanish companies mediate, especially in international conflicts, where the international players are more familiar with ADR.