Recently, I told you that the Council of Ministers had approved the referral to the Cortes of the Draft Laws on Organizational Efficiency and Procedural Efficiency of the Public Service of Justice, regulations that, together with the future Digital Efficiency Law, constitute the pillars of the Justice Plan 2030.
Well, today I come to tell you that the Law of Procedural Efficiency, after the various criticisms made by the different political parties, has passed its first examination in the Congress, rejecting the entire amendment presented by Vox.
As I explained in my previous post, the final approval of this Law would mean the modification of Law 5/2012, of July 6, on mediation in civil and commercial matters, in different aspects, among others the effects of mediation on the prescription and expiration periods, its connection with the procedural requirement established in the Civil Procedure Code, the requirements that must be met for this purpose, the harmonization of the confidentiality requirement with the regulation contained in title I for the remaining appropriate means of non-jurisdictional dispute resolution, legal assistance, the initial session, the constitutive session and intrajudicial referral.
Faced with the exponential increase in litigation, the Procedural Efficiency Law introduces mechanisms that break the dynamics of confrontation and tension that invades social relations in our times, to promote appropriate means of dispute resolution, promoting mediation and others. alternative means, to push the parties to try this route before judicializing the conflict before the courts.
The Law tells us not only about mediation, but also about the “adequate means of resolving disputes non-jurisdictionally with special regulation.” For the purposes of this law, an appropriate means of dispute resolution is understood to be any type of negotiating activity, typified in this or other laws, to which the parties to a conflict resort in good faith with the aim of finding an extrajudicial solution to the dispute. themselves, either by themselves or with the intervention of a neutral third party.
According to the Law itself, the following means are understood to be:
- Direct negotiating activity between the parties assisted by their respective lawyers when their intervention is mandatory
- Private conciliation, the conciliator must be a professional - or professional society - registered as a practitioner in the professional associations of law, prosecution, social graduates, notaries or registrars, or in any other association legally recognized, or a registered mediator. In the event that there is total or partial agreement between the parties in the development of the conciliation process, the parties' lawyers, if they are present, will be required to supervise the agreement.
- Confidential binding offer. Any person who, with the aim of resolving a dispute, makes a binding offer to the other party is obliged to comply with the obligation assumed, once the party to whom it is addressed accepts it. Said acceptance will be irrevocable. The offer will be valid for 1 month, after which, if it is not accepted, it will expire, and the proposing party may file a lawsuit.
- Independent expert opinion. The parties, in order to resolve a dispute, may designate by mutual agreement an independent expert to issue a non-binding opinion regarding the matter that is the subject of the conflict. Once the expert's opinion or non-binding opinion has been issued, the parties will have a period of ten business days from its communication to make recommendations, observations or proposals for improvement in order to accept the written opinion proposed by the expert.
- The parties may go to mediation regulated in Law 5/2012, of July 6, of mediation in civil and commercial matters. Along with these new mechanisms, mentioned above, mediation is promoted as an appropriate means of resolving disputes in which two or more parties voluntarily try, through a structured procedure, to reach an agreement for themselves with the intervention of the mediator. .
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