Mediation Law

Article written by: Amparo Quintana, lawyer and mediator. Member of the European Group of Magistrates for Mediation (GEMME) and also of the AMM (Madrid Association of Mediation)

lto Mediation in civil and commercial matters has laid the foundations for a legal framework for regulating mediation at the state level. Amparo Quintana, as a lawyer and mediation professional, highlights the most positive aspects and those that could be improved of the Mediation Law:

Strengths:

1) The mediator is perceived as a objectively trained professional to carry out that activity. Mediation is not something for well-intentioned or more or less conciliatory people, but must be carried out by professionals:

• This results in greater security for users, as they can ask the mediators for information about their experience, training and profession of origin, which the latter must provide.
• The consequence of all this is the obligation to take out a civil liability insurance policy.

2) Some are unified minimum formalities of action (minutes and file conservation time), since until now each mediator followed their own protocols.

3) It recognizes the validity in the EU of the mediation agreements signed in Spain.

4) The professional secret of the mediator.

5) The possibility of mediating through electronic methods, which is a benefit when people cannot go to the mediator's office, either due to geographical distance, or because they are suffering from some physical, permanent or temporary impossibility.

Weak points:

1) That people with professional training can be mediators.

2) That the information session is not mandatory.

3) That it is not mandatory to request the suspension of a judicial procedure, but rather it is left to the parties' arbitrator.

4) That the agreement does not have executive force on its own (in the draft of the previous legislature it was contemplated).

5) That consumer and labor mediation are not included in the scope of Law 5/2012, when the first is a commercial matter and the second is assimilated to civil-commercial in European texts (Green Book, community directives, etc. .).

6) That the final act is required whether there is an agreement or not. The ideal thing would have been for it to only be extended when the parties have not reached an agreement, since when there is an agreement, it redounds the work and excessively bureaucratizes the mediation.

7) That a reasoned resolution from the judge or court is sufficient for mediators to declare in a criminal proceeding. The European Directive that has served as the basis for our Spanish law also speaks of “serious causes.”

8) That the agreement be treated in a separate chapter of the mediation process, as if it were not part of it. This entails too much “literature” and diverse opinions about who should write it, when, etc.:

• It should have been clearly stated that the agreement will be drawn up by the mediators.
• It should be noted that the agreement is signed by the mediators, since it is mandatory to include their name and the information of the institution, if applicable. This would prevent possible impersonations and fraud.