When is mediation mandatory?

Mediation in Spain is not mandatory, the main reason is that participating in a mediation process is voluntary.

However, as in other countries, it has recently been established that it is mandatory to attend an information session on one of the alternative methods of conflict resolution, whether mediation, conciliation or any other useful system.

The Council of Ministers approved the Draft Law on Procedural Efficiency of the Public Justice Service in April 2022.

(To see the full text click on this link  https://www.congreso.es/public_oficiales/L14/CONG/BOCG/A/BOCG-14-A-97-1.PDF )

Its objective is to promote the use of appropriate means of dispute resolution (MASC) to decongest the courts and tribunals.

Medico Sentado Pacientes Rehabilitacion Habitacion Blanca

It is included in this text as MASC “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 find an extrajudicial solution to it, either by themselves or with the intervention of a neutral third party.” That is why, among the systems on which an information session must be received prior to judicial proceedings, Mediation is included.

Literally, it is stated that “it is necessary to introduce effective measures that do not degrade nor transform them into mere bureaucratic requirements. To this end Mediation in all its forms must be promoted and introduce other mechanisms of proven experience in comparative law.”

It is worth highlighting, at this point, that the agreements established in mediation have a binding, that is, the validity of a contract between parties, which infers res judicata value and therefore prevents the filing of a lawsuit for that same purpose. In any case, it is also remembered that the elevation to a public deed or judicial approval gives the mediated agreements a character. executive, considered res judicata, being comparable to what a judge dictates.

This standard also aims streamline the operation of judicial bodies, reduce resolution times and facilitate access to other means of conflict resolution.

It is clear that forcing information is far from forcing mediation, which is why Mediation continues to be voluntary, although becoming informed about this process as a means of effective conflict resolution is a step that promotes the use of mediation.

Agente Seguros Sonriente Revisando Papeleo Comunicandose Sus Clientes Reunion

Starting point: How mediation is born

Since Law 5/2012 of July 6 on mediation in civil and commercial matters, the conditions under which mediation can be carried out have been established. This is why the mandatory information session will be viable as long as the case is not exempt from being mediated by law due to situations such as:

  • Violence, since decisions would be conditioned by a significant power imbalance and supported by fear or imposition.
  • Coercion or excess control exercised over one of the parties, since the voluntariness of the parties would be compromised, generating agreements that are not fair or preventing their compliance due to lack of commitment.
  • The personal situation that may prevent or hinder conscious decision-making, such as addictions (substance or behavioral), psychiatric disorders or serious psychopathologies, given that they would reduce the usefulness and effectiveness of the process and agreements.
  • Blood crimes are obviously excluded, as are abuses, rapes, etc.

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2 thoughts on “¿Cuándo es obligatoria la mediación?”

  1. One question, that is, you always have to receive the information session (mediation). I understand that this is the case now? Thank you.

  2. Good afternoon Pilar.
    The ideal is to always inform about the work system, the usefulness, the benefits, etc. especially because there is still a lot of ignorance about mediation.
    Thanks to you for sharing the question.


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