Although mediation is a recognised form of ADR, there is not a strong mediation culture in Spain. However, Spanish legislators’ growing interest in the practice of mediation led to the passing into law of the Spanish Civil and Commercial Mediation Act 2012 (Ley 5/2012, de 6 de julio) (the “Mediation Act”). The Mediation Act transposes into Spanish law Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters.

Also enacted was Royal Decree 980/2013 (Real Decreto 980/2013, de 13 de diciembre), which developed certain aspects of the Mediation Act (the “Mediation Royal Decree”). More specifically, it set out the requirements to be a mediator in Spain and created a register of mediators and mediation institutions.

In January 2019, the Spanish government approved a draft bill on mediation reform whereby mediation would become semi-compulsory for certain types of disputes, such as minor cases on property law, shareholder disputes, inheritance disputes or family law matters, that currently go directly to the courts. According to this draft bill, mediation would also become available within court proceedings if considered appropriate by the judge, given the status of the particular case.

This draft bill has not yet been passed or even discussed in the Spanish parliament.

In December 2020 the government approved a draft bill to promote efficiency within the justice system, which attempts, among other things, to promote pre-trial dispute resolution, including mediation.

The key developments of this draft bill will be further discussed, yet one of the most relevant is that it establishes that the pre-trial settlement reached (through mediation or another form of ADR) will have the status of res judicata. Consequently, the parties will not be able to file a new complaint relating to the same subject matter.

It should be considered that this draft bill has not yet been passed or discussed in the Spanish parliament.

Therefore, even in the absence of official statistical data on mediation since the adoption of the Mediation Act, it can be presumed that mediation culture is far from entrenched in Spain. Yet, based on these draft bills, mediation could be on the rise in the upcoming years.

A neutral mediator is directly appointed by the parties. The mediator assists the parties while working towards a negotiated settlement of their dispute, but the parties remain in control of the process and the outcome of the mediation at all times. Parties are often assisted by their lawyers during mediation sessions and the costs are usually shared between the parties, especially if an agreement is not reached.

No, there is no legal obligation on litigants to attempt mediation in commercial disputes, unless they have previously agreed to do so.

However, the December 2020 draft bill establishes that for civil and commercial proceedings, the parties must file a document proving that pre-trial negotiation has been attempted. Amongst other methods, this requirement will be considered fulfilled if mediation is previously conducted.

Labour, criminal and insolvency proceedings are excluded from this requirement, as well as matters in which one of the parties is an entity belonging to the public sector.

The Spanish Civil Procedure Rules do not provide any particular judicial powers to support mediation. Judges may invite litigants appearing before them to mediate, but they cannot act as mediator themselves in that mediation. However, courts are increasingly making orders compelling parties to mediate, particularly in family disputes, despite the lack of any legal obligation for the parties to do so.

The December 2020 draft bill contains an amendment to the scenarios in which mediation procedures may be initiated under the Mediation Act, including judicial referral subject to the parties’ consent.

Yes, mediations are intended to be confidential. Article 9 of the Mediation Act states that the process and materials used in the proceedings must remain confidential.

Agreements to mediate also usually include express confidentiality clauses establishing monetary penalties in case of breach.

No, there are no cost-related consequences for parties who fail to mediate. Where such a failure is in breach of a prior agreement between the parties to mediate, refusal to do so could constitute a breach of contract, although any damages payable would be at the discretion of the judge.

As a general rule, settlement agreements reached after mediation will be enforced like any other contractual agreement. However, the parties can decide to make their agreement judicially enforceable by executing it before a notary public (provided that the parties meet certain requirements). If the mediation process takes place while judicial proceedings are pending, any eventual settlement agreement reached between the parties could be validated by the court, in which case the settlement agreement would also become judicially enforceable.

Part three of the Mediation Act, “Mediator status”, lays down the requirements for acting as a mediator. Mediators must hold an official university degree or have advanced vocational education and specific training to practise mediation, which can be gained by completing one or more specific courses run by duly certified institutions.

Chapter two of the Mediation Royal Decree establishes that the specific training to practise mediation must have a minimum duration of 100 hours. Mediators are also required to continue their training, receiving specific mediation training for at least 20 hours every five years.

Registration of mediators in Spain is voluntary, except for insolvency mediators. Registration is a means of accrediting mediator status. However, according to the 2020 draft bill, mediators acting within the compulsory pre-trial negotiation or as a consequence of judicial referral, must be registered.

Impartiality is a requirement for mediators. Furthermore, the Mediation Act includes a provision requiring mediators to have civil liability insurance.