III. The Role of the Mediator: Status, Fees and Responsibility
The mediator referred to in Royal Decree-Law 5/2012 is a third party around whom revolves the process of mediation. This person advises, proposes and actively guides the parties involved in the dispute to achieve a resolution of their own accord. One of the main objectives of the mediator is to reach an agreement between the parties.
In order to guarantee an appropriate level of professionalism and quality to the process of mediation, the Royal Decree-Law sets out the following prerequisites for mediators:
(i) To have full civil rights and do not have any criminal records; (ii) To be formally trained to act as a professional mediator; (iii)To respect the principles of equality, impartiality, confidentially, neutrality and independence; (iv)To hold a civil liability insurance for those conflicts they mediate in; (v) To be enrolled in a public registry.
Objective Enabling Requirements
The role of the mediator, as stated in Royal Decree-Law 5/2012, exists by virtue of the will of the parties involved in a dispute and by the recognition granted, by national and international legislators, to perform the duties bestowed upon him/her. Therefore, their participation in a process of mediation derives from the will of the parties who voluntarily appeal to them to facilitate the communication channels amongst them; to ensure that the information is sufficiently accessed and adequately conveyed to them during the mediation; and to be active in bringing the parties closer together. In this sense, it is crucial that mediators enjoy full civil right as long as they are not prevented by the legislation by which they abide during the course of their work.
Mediators must be formally trained to act as professional mediators by successfully completing one or various specific courses imparted by duly accredited institutions. This training will provide mediators the necessary knowledge on a range of subjects including law, psychology, communication, conflict resolution and negotiation techniques, as well as mediation ethics, both at in practice and in theory. In relation to this matter, the final fifth (5th) provision of the Royal Decree-Law states that “The Government, under the initiative of the Ministry of Justice, will be able to determine the duration and content of the course or courses that mediators will have to attend prior to being able to carry out their professional duties, as well as the type of continuous education they will have to attend throughout their professional life”. Therefore, mediators will need to comply with a pre-set number of fixed (?), including the fulfilment of specific training requirements, partaking in courses that include the aforementioned subjects. Other than courses that entitle mediators to exercise their profession, and learning from the experience of neighbouring countries like Italy, the established rules demand a continuous professional development from mediators in order to guarantee their adequate preparation, development and constant improvement.
Subjective Enabling Requirements
Besides the objective prerequisites and conditions set out by the Royal Decree-Law to exercise the role of a mediator, they are also expected to present a number of moral and professional qualities to fulfil their duties adequately, including trust, loyalty, suitability, confidentiality, social and professional reputation or moral integrity.
The principle of confidentiality is key in this context as it takes centre stage during the mediation. As such, Article 9 indicates that “The process of mediation and the documentation used during this process is confidential. The obligation to remain confidential extends to the mediator and the intervening parties and as such they will not be prevented from disclosing any information they may have obtained during the course of the mediation”. This implies that mediators or other persons participating in the process of mediation are not under the obligation of declaring or presenting documents in any legal proceedings or in an arbitration relating to the information obtained during the process of mediation or in any other area related to this process. There are, however, two important exceptions drawn from two sets of circumstances. In the first case, parties involved will be given the option to present the information obtained during the mediation, while in the second option, they will be obliged to do so.
Other Enabling Requirements
The position of mediators could be classified as subjective given that the conflict for which they try to facilitate communication channels and to bring parties closer to each other is intersubjective. That is, their position and their activity is born, develops and concludes within a particular conflict and depends on the level of self-determination granted by the parties to them to conduct their functions. The role of the mediator is informed by the specific conflict he/she is trying to resolve. As far as which are the enabling requirements on which the legitimacy of the mediator rest, these include impartiality, an essential element, and neutrality or independence. But while impartiality is a predisposition of the mediator, his or her independence and equality is needed in order to respect the balance of positions which must be present at all times.
Responsibility of Mediators
Article 14 states that «acceptance of a process of mediation compels mediators to dutifully fulfil their obligations. In case of default they will incur liability for damages caused by their bad faith, recklessness or deception”. Therefore, as a consequence, a mediator could be found liable and be obliged to pay compensation for damages to the parties to a mediation.
Section 3 of Article 11 demands, in this regard, that “mediators hold an insurance or equivalent guarantee to cover their civil liability in the conflicts they intervene.” Injured parties or mediating institutions are granted direct action against the mediator regardless of any reimbursement actions against the mediators. In this sense, the final fifth (5th) provision of the mentioned Royal Decree-Law adds that it will be possible to develop the extent of the obligation of mediators to ensure their civil liability in accordance with the pertinent regulations.
Plurality of Mediators
According to Article 18, a mediation may be conducted by one or various mediators. This plurality, however, tends to be better suited to conflicts of a very complex nature or to those disputes that require the intervention of experts in specific fields, as in the case of family mediation, which generally uses the combined services of a professional psychologist and a lawyer. Generally, the rule that tends to apply is that “if the subject matter is complex or because it is deemed to be more convenient by the parties that the mediation process be guided by more than one mediator, the professionals involved need to act in a coordinated manner.” In any case, it is important that the parties involved are informed of the considerable additional costs that represent using various mediators in a process so they can make an informed decision.
Incorporating Mediation Institutions
The process of mediation is generally channelled through mediation institutions that offer professional mediators and guarantee the quality of their services. Article 5 of the above mentioned Royal Decree-Law classifies mediation institutions as those public or private entities and public corporations that aim to promote mediation, facilitating its access and administration, including the appointment of mediators. The same article states that if these type of institutions also conduct arbitrations, they should adopt the necessary measures to keep both activities separated from each other.
The final fifth provision of this Royal Decree-Law announces the future adoption of a set of development rules that will accompany this legal provision with the aim to adopt a number of measures that guarantee such objectives and requirements. Known as “Regulatory development for the guaranteed observance of mediation requirements”, this provision bestows upon the government the task to “establish a normative that provides the necessary tools to warrant the observance of the requirements laid out in the aforementioned Royal Decree-Law from mediators and mediation institutions as well as their publicity”. This provision hopes that mediation institutions become quickly familiarised with these requirements so that they can be called upon by individuals to act in the process of mediation. “These instruments could include the creation of a Registry of Mediators and Mediation Institutions that would report to the Ministry of Justice and would coordinate with the various Mediation Registries of each of the Autonomous Communities. It will fall under the scope of tasks of this Registry to remove from office any mediator who does not comply with the requirements established by the Royal Decree-Law.
IV. The Process of Mediation
The Royal Decree-Law establishes that mediation is to be a very simple and brief process, extending over a minimal number of sessions. This format is designed to guarantee a trouble- free, affordable and short process.
As earlier suggested by article 24 of the draft bill, it is here stipulated that the parties involved in the dispute will make a decision as to whether all or some of the mediation sessions will take place online, as long as the identity of the participants and the compliance with the principles of mediation laid out in the Royal Decree are guaranteed.
Also, mediations involving claims not exceeding 600 euros will take place by electronic means, except in cases when one of the parties is unable to access these.
It is also established that when one of the parties voluntarily sets a mediation process in motion while court proceedings are already taking place, out of common accord, the parties will be entitled to request its suspension as prescribed by procedural law.
A mediation process can be initiated: a) By common agreement between the parties b) Or by one of the parties in compliance with an order of submission to mediation.
The application will be lodged through the corresponding mediation institutions or through the mediator proposed by one of the parties to the others, or a mediator appointed by both parties.
Procedures during the Mediation Sessions
Soon after having received the application – except when agreed by the involved parties - , the mediator or the mediation institution will arrange an informative session with the parties. Should any of the parties not attend the initial session without a valid reason, it will be assumed they have no intention to continue with the process.
During the informative session the mediator is to inform all parties about: (i) any possible reasons that may impair his/her impartiality, (ii) the nature of his/her profession, training andexperience, (iii), the features of the mediation process and related costs, (iv) how the process is organised, (vi) the legal consequences of the agreement they may reach, (vii) the period of time they will be granted to sign the establishing session.
Mediation institutions may organise open informative sessions for those persons who might be interested in resolving their disputes using this alternative method.
The process of mediation will start with an introductory session in which parties may express their wish to continue with the mediation and will put on record the following aspects: a) identity of the parties, b) the appointment of the mediator and, if pertinent, of the mediation institution or the acceptance of mediator appointed by one of the parties, c) the object of the conflict about to undergo mediation, d) the order of the mediation and the maximum period of time the process is expected to last, irrespective of possible amendments, e) the cost of the mediation or the bases to be able to determine it, differentiating between the mediator’s fees and other expenses, f) the voluntary nature of the acceptance of the declaration by the parties and that they are bound by the obligations resulted from the agreement, g) the place where the mediation will convene and the language used during the process.
The mediator and the parties will sign the minutes of the introductory session. In other cases, the minutes will be used to declare that, for instance, the mediation was unsuccessfully attempted.
Mediators will convene the parties to each session with sufficient notice. It is their duty to chair the sessions and to facilitate the statement of their positions.
The exchanges between mediators and the parties involved in the disputes may or may not occur simultaneously. The mediator is to inform all parties if any meetings with one of the parties have occurred separately without prejudicing the confidential nature of the matters discussed. The mediator will not be able to and shall not inform nor disclose the information or documents given to him/her unless clearly authorised by the involved party.
The mediation process may reach an agreement or may conclude without having reached an agreement. There are various reasons why a mediation session may not come to a successful resolution, including: all or some of the parties decide to inform the mediator that they prefer to exercise their right to terminate the sessions; or because they have reached the maximum allowable period of time allocated to the process; or because the mediator justifiably considers that the positions of the parties is irreconcilable, or in any other case he/she deems important enough to terminate the process.
In concluding the mediation, all documents brought to the table by each party will be returned to them. Those documents that do not need to be returned to the participants will be compiled in a folder that the mediator or the mediation institution need to save and guard for a period of six months, commencing as soon as the process is concluded,.
The process concludes with the final act, document which clearly and comprehensibly reflects the agreements reached or the reasons for the termination of the mediation. The act will be signed by all parties and the mediator or mediators. An original copy will be given to each of them.
V. Implementation of Mediation Agreements
Under the provisions of the newly enacted normative in Spain, the final act of the mediation will only be rendered valid if it contains certain aspects. The act must express that the process of mediation has come to a close, clearly and comprehensibly exposing the agreements reached – whether in relation to only some or all of the matters presented to mediation. The agreement must also visibly indicate the identity and addresses of the parties, the place where the agreement was signed and the date when it was signed, the obligations born by each party, the declaration that at all times the process of mediation has complied with legal requirements, and the identity of the mediator or the mediation institution who have headed the process.
In this document, the mediator will also inform the parties of the binding nature of the agreement and of the option available to them to convert the document into a public deed if they wish to configure it as an enforceable title. Finally, the final act will be signed by all parties and the mediator or mediators.
The document that concludes a dispute may enjoy (?) the character of enforceable title if both parties, by mutual agreement, resolve to constitute it into a public deed. For this purpose, the Decree-Law calls for the agreement to become a public deed before it can be considered an enforceable title. This requirement, far from allowing the mediation to become a more effective process, - a desideratum of the legislature as expressed in its preamble – it, in fact, places it at a disadvantage with respect to the award. Indeed, unlike arbitration awards that gain enforceability simply by being certified11, the result of a mediation must be made public. Inevitably, this results in the following:
(i) Firstly, the mediation agreement must be submitted by both parties before a notary, accompanied by a copy of the minutes of the initial session and the conclusion of the process.
(ii) That the notary public must certify the facts; verify that the agreement complies with the requirements of the Royal Decree-Law and that its contents are not unlawful. The public enforceability of the mediation agreement requires that its contents be granted the character of public deed. For that purpose, notary requirements are considered equal in terms of appearance, control of legality, capacity, etc. This means, ultimately, to grant the notary public the role of guardian of the legality of the agreements (a filter of their legality). On the other hand, an arbitration award only expects that any of the interested parties include the final resolution in its protocol.
Article 211 of the Notary Rules and Regulations states that the declaration of the will of the applicant is sufficient to certify the compliance to the pertaining regulation and that a confirmation of the Notary that a document to that effect has been submitted to him/her should suffice. The certification aims to ensure the identity and existence of the document on the date of the certification. This can be done either by transcribing such details in the act or by annexing a document to such act.
Also, having to qualify the agreement as a public deed implies, according to Article 147 of the mentioned regulation, the drafting of a public document outlining the common will of the participants which, will have to be investigated, interpreted and suited to the applicable legal system. The notary will also have to advice and inform about the value and implications of this document. At the same time, and without having his/her impartiality compromised, the notary will need to make his/her duty to respect the clauses in the deed very clear, ensuring they will not include any unacceptable general conditions. The notary is also entrusted with respecting the basic rights of consumers and users.
(iii) Besides, as a consequence of the principle of immediacy, the parties involved in the dispute will have to agree on, convene and attend the confirmation of the agreement as a public deed, having already signed a prior mediation agreement.
(iv) However, the demand imposed upon the parties to engage the services of a second professional (the notary) will see the costs of the mediation rise considerably. The fees charged by the notary for his/her services to formalise the mediation agreements will correspond to the fees established by section 1 “Documents without specific amount” of the Royal Decree 1426/1989 of 17 November which, approves the fees charged by notaries.
11 See ALVAREZ ALARCON y PÉREZ CRUZ, "La Ley de Arbitraje de 1988: intervención y control jurisdiccional", RUDP, 1991, no 5, pags. 199-217. See also BARONA VILAR, S. Solución extrajurisdiccional de conflictos. ADR y Derecho Procesal. Tirant lo blanch. Valencia. 1.999.