The EU Mediation Directive was implemented in Spain through the Mediation Law of 2012, which regulates the procedures, the status of the mediator, and introduces measures to ensure that parties can freely access mediation as an alternative to judicial proceedings. Spanish regulations rely exclusively on the parties’ choice, however, and do not propose incentives for the use of mediation or sanctions, if the parties refuse to mediate. There are no requirements for parties to participate in mediation, if no prior agreement to mediate exists.
This lack of incentives may prevent disputants from understanding the value of mediation and how the process can help them resolve their conflicts in a more reasonable and efficient manner. In the end, mediation remains a less customary method of resolving disputes for the parties who need additional incentives to cede their own case to a mediator, instead of submitting the matter to the courts.
Yet times are changing in Spain, and there has been an increased interest in ADR in recent years. Many business and law schools provide mediation training, public institutions promote local mediation, the courts refer more cases to mediation, and highly qualified professionals now offer their services as neutrals. At the same time, the European Union is fostering new measures in favor of the use of mediation, and citizens are aware that there are different methods they can use to resolve their disputes. While mediation is typically used in family cases (in which it has excellent rates of success), mediation is being increasingly recognized for commercial conflicts, international disputes, and sophisticated complex cases in Spain.
By Ignacio Ripol, Senior Fellow-Spain, Weinstein International Foundation