Quadra - Alternative Dispute Resolution

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Quadra opera desde 2003 como proveedor particular ADR (Alternative Dispute Resolution) de servicios aptos para la gestión de controversias y conflictos civiles y comerciales

Quadra administra procedimientos de mediación, arbitraje y evaluación neutral,
promueve la difusión de la cultura ADR y realiza formación de alto nivel

7 July 2012

Mediación Comercial en España

On Saturday, July 7, Spain's Official Gazette published the country's first national civil and commercial mediation Act.

It has been eleven years since Catalonia enacted the country's first regional family mediation act. Since then, most regions have enacted mediation acts to regulate family mediation only. It was time to harmonize concepts, as family mediation acts throughout Spain bear little resemblance up to, and including, how each region actually defines mediation conceptually. It was also time to comply with the EU Directive on civil and commercial mediation.

This new act has stirred quite some debate and commotion. Let us remember: there is no commercial mediation in the country, and there is no mediation to resolve civil matters except for family disputes. Chambers of commerce, bar associations, and some not-for-profit organizations are positioning themselves as mediation champions when they had never provided this service until last month, nor even talked about it except sotto voce in "petit comité."

What is likely to happen within the next few years?: not much if anything at all, as was and is the case with arbitration. There is a difference between promoting a service of this nature, and actually engaging civil society and businesses to use it as an alternative means to resolve disputes. It takes time and a complete change of attitude.

So, what is new in this new act? Actually everything is "new", as this is Spain's first national mediation act.

Finally we find a rather straightforward definition as to what mediation is, a voluntary ADR method where a third independent and neutral party aids disputants in the process of arriving at their own settlement within the law. Most importantly, the definition impedes differentiating between conciliation and mediation, mostly to avoid law suits regarding whether what transpired was mediation or conciliation, should a party want to back off from its own settlement agreement. That said, mediation in Spain is markedly facilitative, all other approaches (evaluative and transformative) being next to inexistent.

Article 2 seems nonsensical as it expressly forbids that mediation be used to resolve labor, consumer, penal matters, and matters involving the country's Public administration.

Labor and consumer mediation can take place, but not as regulated in this act. In Spain there is a single organization representing business/management and, essentially, two unions representing no more that about a fifth of Spain's labor force. These organizations are not about to allow mediation (or anything) that is not endlessly negotiated and entirely in their hands and under their direct supervision. On the other hand, consumer matters fall within the exclusive purview of the Public Administration through the National Consumer Institute. No one in the country but the State can provide consumer ADR services which, incidentally, are provided free of charge for consumers and merchants alike. Why? no one in the country is that ready to trust anything or anyone going at it "solo".

Civil codes of procedure the world over contemplate time limits to act procedurally in a court of law. This mediation act correctly establishes an abeyance period on all time limits while parties attempt to mediate their controversy.

Mediation institutions must guarantee the transparency of the process to nominate and appoint mediators (art. 5). If, besides providing mediation services, an organization provides arbitration services, said organization must take steps to ensure the separation of both services. Said differently, Med/Arb is out of the question because the Legislator feels it is a strange and funny hybrid unworthy of even being considered by disputants.

In this day and age (this is Spain we are talking about), the Public administration seeks to be more efficient and dramatically cut costs. However, article 5 adds a few pounds of fat in the form of establishing itself as the sole supervisor over mediation organizations and mediators in the country.

Article 9 regulating confidentiality states that the duty of confidentiality must be observed by mediation organizations, mediators and parties alike. There is one exception: judges in the penal jurisdiction may order that private information be turned over to the court.

If parties are effectively engaged in a mediation process, they may not commence litigation, nor concurrently pursue any alternative binding method, namely arbitration (art. 10). There is only one exception: parties in mediation may turn to the courts to procure interim measures of protection over rights and/or property.

It is interesting that the act mentions that mediators must be natural persons, meaning breathing human beings. There is a reason: some citizens in Spain –mediation being so novel—may actually think that an institution can mediate, as if people could sit on a bench outside the offices of an organization and talk to its logo.

To become a mediator, natural persons must have a university degree, or equivalent, and must take mediation courses leading to a degree in mediation. The Public administration has to regulate this matter of mediator training, though by most accounts mediator training will consist of courses averaging anything between 300 and 600 hours. The public administration has to decide what it does regarding continuing education.

Thus far (this act is barely a month old), several universities in Spain have formed a consortium to provide mediation training and degrees because they expect a huge demand coming mostly from psychologists and social workers; maybe some practicing attorneys. As mediation is practically inexistent, we will see mediators having to take state-mandated continuing education courses without having ever mediated a case.

Mediators will have to purchase civil liability insurance; mediation organizations will also have to purchase insurance. Organizations are responsible for appointments and responsible for how the mediator conducts the mediation; on the other hand, the mediator is also responsible for how it conducts the mediation.

What is interesting is how arbitrators are practically exempt from liability considering that an award is res iudicata and next to impossible to vacate, and a mediator is subject to civil responsibility standards having to do entirely with procedure since the settlement agreement is not even his/hers.

Article 12 is noteworthy because of the word "require". The Ministry of Justice and the Public administration will foster and require adequate initial and continuing education standards of mediators, including the supervision of codes of ethics and the adherence of mediation institutions and mediators to the said codes. Certainly, this new task is a far cry from the downsizing efforts government claims it must undertake to even remain in the Euro zone..

There are some associations in Spain providing family mediation services under a myriad of regional family mediation laws which have drafted pamphlets purporting to be codes of ethics. These codes are mostly designed for marketing purposes; well, no more, because the law requires mediation organizations to draft codes of ethics and abide by them as if they were mediation rules for all intents and purposes. Not only that: government pledges to follow up on this matter as one of its duties to ensure that citizens and business receive proper mediation services. How European is that? Certainly, we would recommend that any such code be drafted by seasoned mediation attorneys –if any can be found.

Article 13 on impartiality hopelessly confuses independence and impartiality. While impartiality is rather subjective, not so independence which can be somewhat objectively established. This article is aimed at regulating what must be understood as a conflict of interest by loosely defining some circumstances that the Legislator feels would be somewhat problematic.

Beginning with article 16, the Act regulates mediation procedure from A to Z. The Legislator is incapable of regulating the essence of mediation, feeling it knows best and must, therefore, regulate how the entire mediation process should flow. There is nothing particularly notable beyond the fact that the mediation procedure is law.

Without question the most notable article within this chapter is found in the second paragraph of article 23.3, establishing that mediators must tell parties that whatever agreement they sign is binding, and that it can be legally turned into an executive instrument. Res iudicata? Not quite. The law merely states that a mediated agreement is a contract, not quite an "award". Of course a mediated agreement cannot be an award, as an award requires that a third party decide for the parties, not the case with mediation.

A number of articles in the Act's fifth chapter regulate which court parties should go to execute a mediated agreement reached in Spain or outside Spain. Spain has opted to place execution within First Instance courts for convenience and speed. Respecting executing cross-border mediated agreements, we need to test what our courts interprets as "manifest disregard of Spanish public order" (art. 27.3), particularly as every country in the EU regulates civil matters differently, let alone family matters.

A number of additional and final dispositions conclude Spain's first national mediation Act. As an additional disposition, the Public administration vows to promote mediation on its nickel. Wholeheartedly? Probably not.

Spain is a mix of the modern and the ancient. In Madrid, some of the toniest oldest buildings are walk-ups. If you are lucky enough to have your mediation offices in one of these buildings, you might as well forget about providing mediation services because the Act provides that the building and the mediators' offices be fully accessible to people with disabilities. Additionally, mediators must be prepared to offer sign language help, Braille, etc. Of course it is desirable and necessary to provide the handicapped with effective mediation services and, of course, all mediators would love to provide accessible premises and aid, but this is a brand new service in Spain and few will foot the expense to be prepared for that eventuality, particularly when a mediation market has yet to be created, yet to even exist.

The new Act specifically authorizes chambers of commerce and bar associations to amend their by-laws to provide mediation services along with national and international arbitration services. It will be rather interesting to see what they do, since they have never provided civil or commercial mediations services, ever!

Final dispositions within the Act also amend the country's Code of Civil Procedure, principally to provide that time limits to act in litigation will be placed in abeyance while the parties attempt an amicable solution to their conflict through mediation, and to provide for the execution of mediated agreements. The Code has also been amended to provide that parties may request recognition of a mediated settlement without the assistance of an attorney when the amount in dispute is less than 2,000 euros.

This is Spain's Mediation Act in general terms. What is surprising is how mediation has evolved from being a complete unknown to the people, businesses and attorneys alike, to being hailed as miracle cure-all magic potion in almost no time.

What is even more surprising is how mediation is attracting supply, not so much demand, as it is easier as of today to become a mediator without mediations than to effectively market mediation no matter its many advantages, if anything because it takes time for disputants to change their own mentality and to move from the all familiar court system to an alternative dispute resolution environment of their own.

Lastly, on the supply side, mediators actually believe that they can mediate full-time, and that is the goal of most existing family mediators, as well as the goal of mediators yet to be trained. It will be a while until a mediator can make a living through mediation activity alone.

Will we see the advent of ad hoc mediation? Probably, as no one has to know that an agreement was reached thanks to the intervention of a mediator mediating occasionally on a word of mouth basis. In a way, this Act envisions professional mediation and that is why it busies itself with every aspect of mediation imaginable.

Enacted in 1988, our first modern arbitration act has not met expectations, as arbitration is rarely used in Spain. Several amendments later to make arbitration more attractive have failed to stir demand. Mediation will take a while as well to come of age, if it ever does.


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