Mediation in Spain

Quick Facts

• Legal Framework: Mediation in Spain follows Law 5/2012 of 6 July 2012 on mediation in civil and commercial matters, which transposes Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 in...
• Cultural Approach: Spanish mediation culture emphasises voluntary processes and confidentiality. There is growing acceptance of mediation as an alternative to litigation, particularly in labour disputes where it is some...
• Typical Costs: Generally speaking, mediation connected with the court is free of charge. In the employment field, the services of the Autonomous Communities and of SIMA (Servicio Interconfederal de Mediación y Arbit...

Mediation Research

Legal Framework

Mediation in Spain follows Law 5/2012 of 6 July 2012 on mediation in civil and commercial matters, which transposes Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 into Spanish law. The Law establishes a minimum framework for the practice of mediation in civil and commercial matters. The Law provides that mediation is to be a very simple and brief process, extending over a minimal number of sessions, designed to guarantee a trouble-free, affordable and short process. In the labour field, Law 36/2011 governing the labour courts introduces a general rule that all applications must be accompanied by a certificate attesting the attempt at mediation, making mediation sometimes compulsory before resorting to courts. The 2003 Spanish Arbitration Act, amended in 2011, governs arbitration and was drafted following the UNCITRAL Model Law. It applies to all national and international arbitrations with Spain as the venue of arbitration. For family mediation, certain laws and regulations in some Autonomous Communities refer to training requirements for family mediators.

Court System

Spanish courts actively encourage mediation. The parties, with help from their lawyers, can decide to try mediation and notify the court, or else they may be contacted by the court when it is thought that the case is suitable for mediation. In the criminal field, it is usual for the offender to be contacted first, and if he or she agrees, the victim is contacted to attempt mediation. When the agreement has been reached in mediation that took place after judicial proceedings were commenced, the parties must ask the court to approve the agreement pursuant to the provisions of the Civil Procedure Act. The possibility of enforcing a mediation agreement depends on the parties' freedom of action in respect of the subject-matter of the agreement. Courts may consider cost orders where parties unreasonably refuse to mediate. Law 10/2012 regulating certain fees in the area of the administration of justice provides for a refund of the amount of the fee when an out-of-court settlement saves some of the costs of the services provided.

Mediator Regulations

Law 5/2012 provides that the mediator must have an official university degree or advanced vocational training and have specific training to practise mediation acquired by following one or more specific courses taught by appropriately accredited institutions, which will be valid for the exercise of the mediation activity anywhere in the country. Only certain laws and regulations in some Autonomous Communities refer to the training required to become a family mediator. Generally speaking, the mediator must have a university qualification of at least diploma level plus 100-300 course hours of mainly practical training specifically in mediation. The specific training in mediation is normally offered by universities and professional associations, such as psychologists' or lawyers' associations. Mediators are bound by a duty of confidentiality. The Spanish Arbitration Act provides that under Spanish law, the arbitrator's liability can be established for wilful misconduct, bad faith or gross negligence, and arbitration is confidential unless otherwise agreed.

Cultural Approach

Spanish mediation culture emphasises voluntary processes and confidentiality. There is growing acceptance of mediation as an alternative to litigation, particularly in labour disputes where it is sometimes compulsory to attempt mediation before resorting to courts. The approach tends to be informal and flexible. The Law establishes that mediation should be a very simple and brief process extending over a minimal number of sessions. Spanish mediators often take a facilitative role in helping parties reach agreements. The cultural context values personal relationships and face-to-face communication. Family mediation is particularly well developed with specific regulations in some Autonomous Communities. Commercial mediation is gaining acceptance in business circles. There is regional variation in mediation practice across Spain's Autonomous Communities.

Typical Costs

Generally speaking, mediation connected with the court is free of charge. In the employment field, the services of the Autonomous Communities and of SIMA (Servicio Interconfederal de Mediación y Arbitraje) are free of charge. In the family field, the services offered by the bodies working with the courts are generally free of charge. In Catalonia, the cost of the mediation process is regulated for those who do not receive legal aid. In the criminal field, the mediation offered by public bodies is free of charge. Outside of mediation connected with the court, the parties are free to use a mediator and to pay freely agreed fees. Law 5/2012 expressly provides that whether or not mediation has ended in an agreement, the cost will be divided equally between the parties unless otherwise agreed. Specific hourly or daily rates for private mediation are not detailed in available sources. Law 10/2012 provides for a refund of court fees when an out-of-court settlement saves costs of services provided.

States and Regions