Mediation Law on Commercial and Civil Issues

The recent Mediation Law on Commercial and Civil Issues (Law 5/2012, 6th of July) needs regulatory development. To this end, lawmakers have drafted a Royal-Decree Project (Project) that develops the Law. This Project focuses on three aspects: training, registration, and the professional liability of mediators. The Ministry of Justice submitted a draft of the Project on January 11, 2013 to the Supreme Judicial Council (GCJ) to allow the GCJ to prepare the required corresponding Report called for in Article 108.1 of the Organic Law 6/1985 of July 1 of the Judiciary.

The advisory function of the GCJ is to inform about draft laws and general provisions of the State and Autonomous Communities regarding procedural rules involving or affecting constitutional/legal aspects of guardianship before the Ordinary Courts on the exercise of fundamental rights. These fundamental rights include those that affect the constitution, organization, functioning, and government of Courts and Tribunals.

The Report aims to make more concrete certain issues related to mediators’ training. It introduces interesting issues, such as a parameter to reduce the percentage of the minimum period of training established in the Regulation that operates depending on the accreditation of a principal number of degrees or on a certain number of years of professional experience. The Report suggests considering minimum-training contents as common to all kind of mediators.

Regarding the Mediators’ Registry, the Report makes the following conclusions:

  • First, the Project should create the Mediators and Institutions Registry because it may not yet exist.
  • Second, the Project does not specify what information (that the mediators and institutions must communicate to the Registry) will be public for third parties who consult the bases.
  • Third, the Project must include as causes of cancellation not only the extinction of civil-responsibility insurance (without contracting for a new insurance policy) but also the extinction of the equivalent warranty (without contracting for a new one).
  • Fourth, the Project must also include as a cause of cancellation where a mediator lacks the accreditation of the continued training that he or she must receive.
  • Fifth, the Project should also establish a norm by which the certification of inscription in the autonomous registry of mediation will be sufficient documentation to obtain inscription in the Registry, depending on the Ministry of Justice. The Report indicates that this situation would be coherent with the established Annex I Article 14.3 on recognized mediators in other Member States of the European Union.

Finally, and concerning civil-responsibility insurance, the Report recommends more precision when indicating if the obligation of subscribing to the civil-responsibility insurance or providing warranties corresponds to mediators or to the Mediation Institutions due to the current ambiguity on this matter.

 This article is not considered as legal advice

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