Draft Law to Promote Mediation

The Government, at the proposal of the Minister of Justice, approved on Friday, January 11, the Draft Law to Promote Mediation.

What does the Preliminary Project consist of?

With this new standard, the definitive implementation of the mediation as a complementary figure of the Administration of Justice for the extrajudicial resolution of conflicts in the civil, family and commercial spheres in a more agile way and with a lower economic and personal cost for the parties, also seeking to decongest the work saturation of the Spanish courts.

This Draft Law to Promote Mediation, following the models implemented in other countries such as Italy, moves away from the mediation model currently in force based on its exclusively voluntary nature, to propose modifications that respond to the desire to promote the use of mediation for the resolution of conflicts, so that The model commonly called “mitigated obligation” is chosen, which establishes as an obligation of the parties an attempt at mediation prior to the filing of certain lawsuits. either or when the court in a process considers it appropriate for the parties to resort to this figure.

Converting this mediation as a necessary procedure to access judicial proceedings, although it does not imply an obligation to undergo a complete mediation process or reach an agreement that ends the litigation.

What requirements are necessary?

It is required, therefore, as requirement to be able to access judicial proceedings and file the corresponding claim, that the parties receive from the mediator clear and precise information about the nature of the institution, the structure of the procedure and the benefits over judicial means. In this sense, An information session and an exploratory session of the conflict must take place before the mediator.

As a novelty of this Draft Law to Promote Mediation, Registration is required in the Registry of Mediators and Mediation Institutions dependent on the Ministry of Justice. (consult the register of mediators) or, where appropriate, in the records of mediators authorized by the Autonomous Communities, to those mediators who intervene in the cases for which the reform has introduced the requirement of attempted mediation, as well as in those related to judicial referral, as a guarantee of the special qualification of the mediator in the matters subject to the reform.

What matter of measures does it affect?

The subjects in which this requirement is expected to be required are:

1. Measures adopted on the occasion of the declaration of nullity of the marriage, separation, divorce or those relating to the care and custody of minor children or maintenance claimed by one parent against the other on behalf of the minor children, as well as those that seek the modification of the measures previously adopted.
2. Liability for professional negligence.
3. Judicial division of assets.
4. Conflicts between partners and/or with the administrative bodies of commercial companies. Claims regarding extracontractual liability.
5. Food between relatives.
6. Horizontal property and communities of property.
7. Real rights over another's property.
8. Distribution, agency, franchise, supply of goods and services contracts as long as they have been the subject of individual negotiation.
9. Claims for amounts less than 2,000 euros between natural persons when they do not arise from an act of consumption.
10. Construction defects derived from a construction lease contract.
11. Protection of the rights to honor, privacy or one's own image.
12. Tenancy processes that must be heard through the channels of ordinary litigation.

Definitely, This is another clear example of the institutions' support and commitment to mediation as a form of conflict resolution.

Author: Emilia Ramirez Campaign