Mediation is widely used to resolve international commercial disputes in Spain, and the range of conflicts covered by this tool is quite extensive - from disputes arising from civil relations (entrepreneurial, other economic activity, etc.) to labor disputes. The mediation procedure can be carried out promptly. There is no need to wait for the appointment of a court session, to predict how long the proceedings will last from the moment of filing a statement of claim until the decision is made and its actual execution. The parties choose the time of the mediation and can regulate its duration. If the dispute is already being considered by a court of general jurisdiction or an arbitration court, this does not limit the right of the parties to use mediation in Spain.
Regulatory framework
When a decision is made to settle the dispute using mediation in Spain, the mediator needs to inform the parties to the conflict about all the mandatory requirements. One of them is that the solicitor must draw up a settlement agreement based on the results of the mediation procedure.
NOTE: In international disputes in Spain, the presence of solicitors is common practice even without court orders. If you need a qualified representation of your interests during the mediation procedure in Spain, our experienced specialists can help.
Settlement of commercial disputes through mediation in Spain
The key function of the mediator is to help the parties to better understand each other and help them find options to successfully settle the conflict. Figuratively speaking, he acts as a kind of mirror in which the parties see themselves and their partner in order to fully clarify the situation and find their own solution, not imposed by anyone.
The whole process is fully organized and coordinated by the mediator in a manner satisfying the interests of both parties. He is not empowered to make any decision binding on the conflict participants. That is why, the decision to terminate the dispute on certain conditions is taken by the parties themselves.
The mediator does not examine the evidence and does not assess the legitimacy of the parties' claims, his main task is to ensure mutual understanding between the parties, to identify and realize the possibility of solving the problem on conditions acceptable to all participants.
In order to observe the principle of impartiality before each session, the mediator, using his/her professional skills, enters into a neutral position. This is a non-judgmental state in which the mediator, as it were, nullifies his life experience in relation to such situations and does not form his personal opinion on the issue in question.
Mediator is by no means a judge. However, sometimes it can be difficult for him to achieve a non-judgmental state due to his active social position, which differs from the position of the parties present at the mediation in Spain. Therefore, if the mediator feels that there are obstacles to his/her observance of the principle of impartiality, the right decision will be to withdraw from mediation.
Mediating a business dispute in Spain: Enforcement
No one can force the parties to participate in mediation in Spain if they do not want to do so. This principle is manifested in the fact that all decisions are made only by mutual consent of the parties, and in the fact that each party at any time can refuse mediation and terminate negotiations. Before starting mediation, the mediator always discusses the issue of voluntariness and tries to get the latter from each of the parties.
Unlike legislation in other EU countries, the Spanish Law explicitly includes the issue of the enforcement of mediation decisions. If there is a written commitment to resolve a commercial conflict in Spain using mediation mechanism, a process that has been agreed in good faith must be undertaken before going to court or before any other out-of-court decision is made.
Confidentiality issues
The Spanish law imposes an obligation on mediators, intermediary agencies and parties to maintain the confidentiality of information disclosed in the course of a case. Violation of confidentiality entails civil liability. Usually, in the opening remarks, the mediator explains to the parties the meaning of the principle: the mediator does not make any judgments, does not disclose private information.
When resolving commercial claims in Spain through mediation, everything that is said or provided by the parties in written form cannot be disclosed by the mediator, including in court. Failure to comply with this obligation will result in general civil liability.
Final word
There are different ways to resolve a business conflict in Spain, mediation is one of them. The main advantage of mediation is its flexibility. The parties can independently determine the order and form of the applied procedures, which makes it easy to adapt this process to specific situations.
The IQ Decision UK team provides qualified assistance in the settlement of commercial disputes in Spain, and also provides advice on using ADR in Spain and other European countries.
