Mediation is a voluntary way to resolve disputes between two parties with the help of a third party,qualified to be impartial and neutral so as to guide these parties in achieving an agreement on their own.
In the BOE of 6 March the Royal Decree Law 5/2012 was published and covered topics of mediation in civil and commercial issues.
Mediation allows for a voluntary means in which to resolve disputes between two parties with the help of a third party, qualified to be impartial and neutral so as to guide these parties in achieving an agreement on their own.The mediator, therefore, unlike what happens during arbitration, has no decision-making capabilities to resolve the conflict, and thus the both parties are required to resolve their own issue.
This manner of conflict resolution, as applicable to various civil and commercial issues, was initially lacking specific regulation in Spain, though the Autonomous Communities have practiced this form of dispute resolution.
Scope of Application
The Royal Decree-Law of Mediation extends to civil and commercial matters, with the express exclusion of mediation for penal, labor, consumer, and government issues, according to the scope that the EU directive laid out.
Features and Content
The mediation model is flexible as it is based on voluntariness and free choice of the concerned parties; the active intervention of a mediator is aimed at helping the parties to resolve the dispute by themselves.
The agreement, which ultimately may be reached, can be considered to be enforceable, if the parties so wish, by public record, whose effectiveness may be directly enforced by the Courts.
The mediator -who may be more than one person- is the essential piece of the model, since it is this person who helps find a solution which is deliberately intended by the parties and created through open dialogue between parties.
The mediation is deployed in multiple professional and social areas, and the requisite skills, in many cases, depend on the nature of the conflict. A mediator must, therefore, have a general education that will help them to perform this task.
Also, the mediation must offer an unequivocal guarantee to the parties for any liability which may incur.
Mediation services and institutions play a pivotal role at the time of arranging and prescribing the use of mediation proceedings.
Measures favoring its use are sought for the following reasons:
- The procedure is easy, inexpensive, and requires only a short period of time
- There are no repercussions due to subsequent litigation costs
- Parties are unable to use this method as a delay strategy in complying with one’s contractual obligations
- It does not interrupt the statute of limitations, opting for the suspension of the statute of limitations until the initiation of the proceedings, for the purpose of eliminating possible disincentives, as well as, preventing any other unintended legal effects.
This article is not considered as legal advice