Civil and commercial mediation: differences with family mediation

Article written by: Laura Arranz Lago, managing attorney at Medialia and specialist in mediation, coaching, defense and legal advice.

TBoth Civil and Commercial Mediation and Family Mediation arise from the disagreement of what was once an agreement between the parties. Both of them make us keep our eyes focused on the imminent regulatory development of Law 5/2012 on Civil and Commercial Mediation and on the coexistence that this state regulation will have in the immediate future with the regional regulations that color the geography of Family Mediation. our country for years.

The development of Civil and Commercial Mediation has clear differences with that of Family Mediation:

1. In Commercial Mediation, lawyers can not only encourage their clients to participate in the process, they have the possibility of accompanying them to the information session or advise them from their offices on the agreements they reach in Mediation – as happens in Family Mediation; but They can sit with them at the Mediation table advising them “in situ” in the development of the sessions.
2. In addition to the possibility of a greater number of participants; Another difference between the two is that generally, In Commercial Mediation there are not as many emotions underlying it as in Family Mediation (except in the case of Family Businesses, of course) so in this Mediation progress is usually made faster and more openly than in other Mediations. Hence, the use of “caucus” and “cross-caucus” (caucus only with those involved, with lawyers or with one of the parties) are highly recommended in the commercial area.
3. On the other hand, while the marital and parent-child relationship accredits legitimation in Family Mediation; In Civil and Commercial Mediation it is necessary to ensure that the powers presented by the parties are sufficient to make conflict decisions. which is dealt with by a Mediation that, based on this agreed commercial freedom, can take hours and even days to carry out.
4. Finally, the framework of freedom that Civil and Commercial Mediation entails with respect to the special Civil Mediation (Family) stands out. This freedom finds support in There is no need for the Public Prosecutor's Office to ensure the special protection that minors deserve, nor are there any assessed cases. -such as habitual residence, pensions or custody- of judicial supervision as happens in Family. The result of this freedom is the fact that these Mediation agreements are directly approved before a Notary.

You can see more information about civil and commercial mediator course in the link.

We must enter the collaborative law proposed by Civil and Commercial Mediation with the inclusion of “Clauses for submission to Mediation” in contracts.

It is a very valuable opportunity that we have to bet on, not only as a method for resolving specific conflicts but as a communication bridge to advance commercial relations and proposals for future commercial collaborations; This Mediation being a clear oxygen ball for the Spanish business fabric, which we must help to take the role it deserves, facilitating the development of its freedom of agreements and legitimizing its criteria.