Mediation as a prerequisite to the start of a judicial process

Judicial process

Over the last few months, I have been telling you about the evolution of the Procedural Efficiency Bill The purpose of which is to streamline Justice activity in structural terms, facilitate social cohesion and contribute to the sustainability of the system.

The approval of this Project will be of vital importance in our profession as mediators, since if we follow the line that has been proposed until now, it will imply the prior use of some of the appropriate means of resolving disputes through non-jurisdictional means, such as mediation, as a requirement of procedure, generally in the civil jurisdictional order, prior to judicial proceedings. 

After the various criticisms made by the different political parties, a few months ago it passed its first examination in Congress, rejecting the entire amendment presented by Vox and, In further progress towards its approval, On February 3, they were published in the Official Gazette of the Cortes Generales, the amendments and index of amendments to the articles of the Bill on procedural efficiency measures of the public service of Justice.

As I told you, the most relevant aspect for mediators, since it will mean a very high increase in the number of mediations carried out in our country, is that the Law establishes as a requirement of procedure in the civil jurisdictional field having previously gone to one of the MASC (adequate means of dispute resolution), like mediation. That is to say, Before starting the judicial process, it must be proven that an out-of-court agreement was previously attempted.

The approval of this law will provide a definitive boost to mediation by establishing the attempt at a prior extrajudicial agreement, as a mandatory step before going to court.

Concepto Justicia Derechojuez Masculino Sala Audiencias Mazo Trabajando Computadora Anteojos Teclado Acoplamiento Mesa Luz Manana

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 it, either by themselves or with the intervention of a neutral third party.

According to the Law itself, the following means are understood to be:

  1. Direct negotiating activity between the parties assisted by their respective lawyers when their intervention is mandatory.
  2. 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 legally recognized association, 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.
  3. 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.
  4. 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.
  5. The parties may go to mediation regulated in the Law 5/2012, of July 6, 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. .
Mediacion Y Proceso Judicial

In short, all these reforms, which we will talk a lot about in the increasingly near future, demonstrate the commitment of public institutions to carry out the actions that are necessary to promote the culture of mediation. thus following the path marked by the Council of Europe and expand the use of this instrument to the civil and commercial sphere to continue advancing to achieve a society in which the use of mediation as a means for the extrajudicial resolution of conflicts in the civil and commercial sphere has the maximum legal guarantee and security and its implementation is a reflection of the rule of law and the democratic principles of our society and our system.

Do you want to get started in the world of mediation? Do it with the best professionals and in the leading school in the sector.

2 thoughts on “Mediación como requisito previo al inicio de un proceso judicial”

  1. Thank you very much Emilia for providing us with the information and with it the hope that this draft will go ahead given that I am sure that the mediation process will prevent many procedures from being judicialized.

  2. Indeed, this Procedural Efficiency Law Project will be a great boost for Mediation. And it is going to be a very important law for the purposes of family law; Therefore, family law has long needed the law to establish a mechanism to try to ensure that the parties in conflict go to trial and find themselves immersed in an interpersonal war, in which children, minors and adults are mixed. old. When parents find themselves involved in this tangle of judicial conflict, they are forced to go through very difficult and unpleasant situations. Among them, we could mention the visits at the Meeting Point Centers, which is very sad for them to see their parents. An event that would not occur if the parents had had a mechanism, such as mediation, to have been able to reach some type of agreement and not subject these minors to such complicated situations.

    Also, it is very unpleasant for minors to have to attend the Judges' Examination, when their custody is in conflict, even though the Judge may be very kind and do that work with all care and affection.

    Anyway, I consider that this future law is going to be very necessary and will ensure, in the future, that all Courts have Mediation Services. and, above all, it is mandatory for the parties to reach an agreement before accessing judicial proceedings.


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