Spain approves Secondary Regulation on Mediation

10 January 2014

Spanish Secondary Regulation develops the Spanish Mediation Law dated July 6th 2012 (hereinafter the "Regulation") published in the Official Gazette last December 27th 2013. 

Mediators' training

The Regulation establishes that mediators shall receive a specific training on mediation. The Spanish Minister of Justice opted for providing an open and participatory concept of the mediators' training but highlighting that such training must provide mediators with the "relevant knowledge and skills for the professional practice of mediation, including, at least, in relation to their practice area, the legal framework, psychological aspects, and ethical aspects of mediation; as well as the processes and techniques on communication, negotiation and conflict resolution".

The specific training on mediation shall consist of one or more courses, both on a theoretical and practical basis, amounting to at least a total of 100 hours. The practical part of the training shall consist of at least 35% of the minimum duration of the training (namely, 35 hours) and shall include practical exercises and simulation cases, giving preference to the attendance to real mediation proceedings.

Furthermore, the training has to be continuous and, therefore, at least once every five years mediators are obliged to participate in one or more practical training activities on mediation of at least 20 hours. Such training shall be provided by training centers or institutions, public or private, counting with the legal authorisation, or the permission given by the relevant public authority, to conduct such activities.

The teaching staff of the training centers or institutions shall have the necessary specialisation on mediation and, at least, university studies or advanced vocational education. In addition, teachers giving practical training shall also satisfy the requirements for the registration with the Register of Mediators and Mediation Institutions foreseen in the Regulation.

Mediator training organisations and centers must submit to the Public Administration by electronic means; (i) a memorandum describing the syllabus of the mediation training they will supply -including the training content, methodology, and assessment criteria of the mediation training; as well as the profile of the students, and (ii) the electronic certificate template that the students will receive (that must include at least the characteristics of the training provided and the course passed).

Likewise, it shall be noted that the training received by foreign organisations or centers will also be valid provided that those institutions are duly authorised in their relevant country and, where applicable, be taken into account to complete the requirements on mediators' training necessary to perform mediation activities. In the same way, specific training received prior to the entry into force of this Royal Decree will be valid and, where appropriate, be taken into account to complete the requirements on mediators' training.

Register of Mediators and Mediation Institutions

The Regulation foresee the creation of a Register of Mediators and Mediation Institutions (hereinafter the "Register") under the supervision of the Spanish Ministry of Justice. According to the Regulation, not only mediators can apply to the Register but also Mediation Institutions –private and public- -Spanish or Foreign Institutions, including those of a global nature.

The Registry will be structured in three Sections: (i) the registration of mediators, (ii) the registration of bankruptcy mediators regulated by Section X of the Spanish Bankruptcy Law, and (iii) the registration of mediation institutions.

The Preamble of the Regulation states that the aim of this public register is to provide transparency and publicity by giving access to the relevant and detailed information about mediators and mediation institutions.

Regarding the nature of the registration, it shall be emphasized that the registration with the Register is voluntary, except for bankruptcy mediators.  Registration with the Register allows institutions to prove that they own the status of mediator or of a mediation institution. Moreover, concerning bankruptcy mediators, the registration enables their appointment in bankruptcy mediations.

The Regulation describes the information required to apply to the Register and, according to the Regulation, the Minister of Justice will specify in the future the electronic documents that shall be filed together with the application. Likewise, it is probable that mediation institutions have to pay a fee in order to apply to the Register.

Among the information that the mediation institutions have to provide in order to apply to the Register, it shall be stressed that the mediation insitutions shall submit the annual report on the undertaken activities they provided, indicating the number of appointed mediators, number of mediations carried out by mediators acting under their scope and if they ended with a settlement, and any other information of interest. In this sense, please note that the Regulation imposes mediation institutions to draft and publish (where applicable) on its website at least one annual report including: (i) number of requests for mediation received and type of claim to which they are related, (ii) where applicable, mediation proceedings administered by electronic means, (iii) percentage of proceedings that were interrupted before achieving a result, (iv) average duration of the proceedings, (v) number of settlements achieved, (vi) parties' degree of satisfaction with the proceeding and, where applicable, with the settlement achieved, and (vii) cases in which the mediation institution cooperates with other ADR entities that ease the processing of transboundary conflicts.

Once the mediator or mediation institution is registered, the Registrar will electronically communicate such registration to the insurance company or the credit institution in which the mediator or the mediation institution has taken out the policy/guarantee, and will request said insurance company or credit institution to communicate to the Register any changes or the termination of the policy or equivalent guarantee.

Mediation institutions must also communicate, within a maximum period of ten days, any disciplinary sanctions imposed to the mediators acting under their scope. It shall also be noted that registration with the Register does not exclude the mediation institutions' liability arising from the lack of compliance with legal or other applicable requirements.

Last but not least, the Regulation allows mediators whom are recognised in other EU country to apply to the Register by filing, with the application, an official certificate issued by the register of his/her country or a certificate of its status of mediator issued by the relevant authority of the EU country, together with a sworn translation of the certificate.

Civil liability policy or equivalent guarantee

The Regulation develops the obligation established in the Mediation Law relating the obligation of the mediators to have a civil liability insurance or an equivalent guarantee in order to cover the eventual damages derived from their performance.

The Regulation establishes that the policy or guarantee can be entered into on an individual basis by the mediator, or within a group policy that includes the mediation activity. The policy or guarantee shall cover all unforeseeable damages that were caused by mediator's acts or omissions, as the ones derived from the infringement of the impartiality and confidentiality principles, professional error, or loss of records and parties' documents.

Concerning the amount of the policy or guarantee, the Regulation does not contemplate a specific amount; it just states that it shall be proportioned to the entity of the matter at hand. Prior to the commencement of the mediation, the mediator shall inform the parties of the coverage of his/her civil liability and include evidence of this communication in the initial record.

Similarly to the above, the Regulation also states that all mediation institutions shall take out a policy or equivalent guarantee covering the relevant civil liability in accordance with the applicable Law (especially the one derived from mediators' appointment).

Simplified mediation proceeding by electronic means

The Regulation introduces this simplified proceeding that will apply to claims amounting up to EUR 600, except in cases where the use of electronic means is not possible for a party, or when the parties have agreed a different proceeding; provided that in any case the parties' interests are not related to arguments of legal basis.

The simplified mediation proceeding by electronic means will last a maximum of one month, counting from the day following the receipt of the request for mediation. However, this timeline can be extended by agreement of the parties.

Entry into force

The Regulation will enter into force on March 27th 2014. Besides, the Regulation foresees the following dates regarding the operation of the Register of Mediators and Mediation Institutions:

  • Training organisations or centers will be able to send their memorandums describing the syllabus of the mediation training they will supply and the electronic certificate template that the students will receive from March 1st 2014 onwards.

  • Registration will open April 1st 2014.

  • The Register will be accessible from June 1st 2014 onwards