Spain promotes civil and commercial mediation via collaboration agreement and new Act

On 10 October 2012, a collaboration agreement between Spanish judges and the Chambers of Commerce was signed to foster mediation as an alternative to formal dispute resolution. As a result of the agreement, commercial courts and first instance courts can refer cases to the Chambers of Commerce for mediation. Since its signature, a unified commercial mediation services system will be implemented in the 88 Spanish Chambers of Commerce, for which a model regulation and a standard training programme for mediators have been developed. These measures are intended to strengthen Act 5/2012 on mediation in civil and commercial matters (the Act), which came into force on 27 July 2012. The Act adopts in the large part the Royal Decree Law of 5 March 2012, transposing into Spanish legislation the Mediation Directive (2008/52/EC).  

The Act has modified the Royal Decree and introduced certain new elements. Notable features include:

• A general regime applicable to mediation in all civil and commercial matters taking place in Spain, as well as to cross-border disputes. The regime aims to bind the parties.
• A series of principles that mediations must follow and rules that should guide the conduct of the parties and the procedure.
• A charter applicable to mediators detailing the requirements that mediators must meet.
• Allowing the parties to execute and enforce mediation awards as public deeds.  If awards are not executed as such they will lack the certification of lawfulness and not be recognised as enforceable.

Time will tell whether the Act achieves its aims, which includes reducing the national courts' workload. The signing of the collaboration agreement  between judges and the Chambers of Commerce does strengthen public commitment to the Act, however. In engaging the Chambers of Commerce, parliament has sought to improve competition amongst companies and encourage the resolution of disputes quickly and cost-effectively. This puts into practice one of the basic functions of these bodies, namely commercial mediation, which is included in the Chambers of Commerce Act by means of an amendment to the Act.

Spain's decision to 'super apply' the Mediation Directive (which strictly only applies to cross-border mediations) elevates the status of mediation within its domestic justice system and should lead to greater awareness, understanding of, and use of the process.