I. Introduction: General Issues.
Mediation is an effective tool for the resolution of conflicts involving subjective, unrestricted rights. Many advantages have been attributed to the process of mediation, including the ability to provide practical, effective and profitable solutions to a broad range of disputes between parties1.
In Spain, the Royal Decree-Law on mediation (RDL 5/2012, 5th may)2 incorporated into the Spanish law the European Parliament and Council Directive 2008/52/EC, of 21 May 2008, on certain aspects of mediation in civil and commercial matters3. The mentioned Directive was set up to establish a range of minimum standards to encourage the use of mediation in cross-border disputes in relation to civil and commercial matters.
The Royal Decree aims to reach beyond the content that was expected to be applied to our legal system by Directive 2008/52/EC. In fact, it has developed a comprehensive scheme of mechanisms for civil and commercial mediation that ensures the quality of justice and the judicial protection of the rights of citizens. In this sense, it is argued that mediation is an institution designed to achieve legal peace, resorting to the use of courts as a last option. This, consequently, contributes to the reduction of the workload of the courts as it limits its participation in the process to only those cases when the parties involved in a conflict are unable to find a resolution by means of an agreement. This is why the recently enacted rule recognises mediation to be a complementary tool to the Administration of Justice and an alternative to court proceedings or arbitration.
Based on the provisions of the 2002 UNCITRAL Model Law on International Commercial Conciliation, it has been formatted as a royal decree with some urgency given that the deadline for transposition of Directive 2008/52/EC into Spanish law ended on 21 May, 2011. Thus having selected a Royal Decree-Law as the appropriate format has been the result of the necessary and urgent adaptation to our legal system.
The international environment has also contributed decisively4 to the adoption of this particular legislative initiative. After several years of only taking what could be described as timid steps in the form of Recommendations 98/257/EC5 and 2001/310/CE, the European Union enacted a major Mediation Directive (Dir. 2008/52/EC) and is currently drafting three important statutory texts:
1. A directive proposal pertaining to alternative dispute resolution in consumer cases (ADR Directive for consumers)6;
2. A proposal for a european common law for matters affecting commerce transactions7 and;
3. A proposal for a law on online dispute resolution (ODR Regulation for consumers)8, which will grant consumers and merchants free access to online resolution centres in all official EU languages.
Beyond European borders, the United Nations is also considering adopting a system of regulations to encourage the rapid development of inexpensive and effective electronic mechanisms to successfully resolve small disputes between businesses (B2B), and between businesses and consumers (B2C). With this aim in mind, the United Nations has created a working group (WG III of UNCITRAL) entrusted with the task of proposing specific rules and preparing legal standards, a project that is sure to bring positive results in the near future.
The above context frames the recent Royal Decree-Law 5/2012 on Mediation in Civil and Commercial cases approved in Spain on 5 March, a document which fills a legal vacuum and presents a pioneering initiative: The online resolution of disputes involving specific sums of money. This legal instrument adopted, inter alia, the much needed establishment of online resolution mechanisms in all institutions already practicing mediation. At the same time, it expects any mediation involving a claim not exceeding €600 to be conducted by electronic means (exceptin cases where these are not available to one or both parties). The government’s intentions, as stated in the final fourth Provision, involve encouraging the generalisation of online dispute resolution in financial claims through simplified and brief mediations that are to last no longer than a month, and are to be conducted exclusively by electronic means.
This initiative aligns with European trends towards strengthening online dispute mechanisms in the European common market and towards attempting to gain the confidence of consumers purchasing goods and services online and across borders in order to ensure that distance, borders and language diversity are not impediments to trade or conflict resolution9.
To the extent that online dispute resolution becomes the most appropriate way – if not the only effective way in existence today – to satisfy parties involved in disputes involving small claims, this mechanism should be made accessible to all citizens, particularly consumers. The use of extra-judicial means of dispute resolution and their electronic applications, far from implying a decrease in legal protection or a limitation in consumers’ access to justice, provides a channel conducive to the exercise of people’s rights, something that is non-existent today in small claims courts or in conflicts across borders.
The proposal is ambitious. To ensure that onlinemediationdoes become a reality, all institutions providing mediation services will be required to introduce appropriate online mediation, especially those involving small claims disputes. Article 24 also delineates that the parties should be given the option to agree to all or some of the mediation sessions to be carried out electronically, as long as the identity of the participants and the respect for the principles of mediation are guaranteed. And finally, mediations involving claims not exceeding 600 euros will be held by electronic means, unless these devices are not accessible to the parties involved.
Spanish legislation defines mediation as “a means of settling disputes, whatever their description, whereby two or more parties attempt to voluntarily reach an agreement of their own accord with the intervention of a mediator.” Besides a definition, they present a regulatory framework applicable to the process of mediation in civil or commercial cases (including border disputes) provided they do not affect any rights and obligations that are not available to the parties under applicable law. The legislation excludes: (i) criminal mediation, (ii) mediation with public administrations, (iii) industrial mediation, (iv) and mediation pertaining to consumer affairs.
As it can be observed, the text neglects the greater bulk of potential beneficiaries of this measure – consumers and users – by explicitly excluding mediation for consumers from its scope of application. It should here be noted that the above mentioned European Directive 2008/52/EC on Mediation in Civil and Commercial matters (the transposition of which into a Spanish law resulted in the recently enacted Royal Decree), promotes amicable settlements in all civil litigation cases, including consumer disputes. This issue is presently undisputed and is reinforcedby the proposed Directive pertaining to alternative dispute resolution in consumer cases (Directiva sobre RAL en Matería de Consumo) because mediation does not prevent consumer access to the courts.
The fact that the defensive regime applied to consumers justifies the existence ofa structural asymmetry in contractual relations between employers and consumers cannot be overlooked. Currently, this asymmetry extends to small businesses dealing with large companies (B2B, B2C), particularly in the context of an electronic commerce that is articulated through contracts of adhesion and imposed conditions of general nature. Both legal protection and the means available to this people for the realisation of their rights should be standardised. As in the case of countries like Italy, which share a similar cultural environment to Spain, there is a widespread understanding and discussion about “the weaker party.”
Finally, and in order to prevent that no rights or actions were impinged upon by using mediation, Article 4 of the Royal Decree prescribed that the commencement of the mediation process shall suspend the order or cancellation of any other actions. To this effect, a mediation is considered to have been initiated when one of the parties submits the corresponding form to the mediating institution. The suspension will continue while mediation takes place until the date the mediation agreement is signed or, failing that, when the final writ is signed or when the mediation is terminated on the grounds of any reasons provided for in this decree-law.
II. General principles and rules of conduct
Document II of the above mentioned Royal Decree-Law identify the main guiding principles of a mediation process10 as:
In addition to these principles, the parties involved in the process of mediation are to observe a series of rules of conduct such as good faith, mutual respect, and willingness to cooperate and support the mediator.
Voluntary Intent and Free Will
The mediation model selected in Spain is based on the principle of voluntary intent, free will of the parties and respect for the autonomy of their will, hence its affirmation that mediation is a voluntary process.
This key principle does not prevent the parties involved from having different opinions. The existence of a written agreement indicating the willingness to participate in the mediation – both in cases when disputes have already arisen (ex-post conflict) or when disputes are yet to arise (ex-ante conflict) – compels the parties to participate in the agreed process in good faith before resorting to their corresponding jurisdiction or to another extrajudicial means of resolving their dispute. This applies even if the dispute pertains to the validity or existence of the contract itself. None of the participants are obliged neither to remain in the process nor to finalise an agreement once a mediation session has been attempted.
However, this does not prevent judges and courts to compel parties to attend mediation briefings whenever they see fit. In this sense, the Spanish mediation model states that the judge will inform the parties involved in the dispute that they have the option to negotiate to solve their conflict, including the use of mediation. The parties are to inform the judge of their decision and their reasons for reaching such decision. At the hearing, the court may invite the parties to seek an agreement that concludes their dispute by means of a mediation, urging them to attend an information session.
On the basis of the principle of disposability at will, the above mentioned normative encourages parties to opt for this alternative instead of a judicial resolution of their conflict. This is, in fact, the second axis of the mediation – the “delegalisation” or loss of central role given to the law in favour of a governing principle also ruling on the relations that are the subject of the dispute.
Impartiality and Equality of Arms
With the object of guaranteeing the impartiality of the professionals involved in the mediation process, the Royal Decree-Law, reproducing here the model set up by the European Code of Conduct for mediators, outlines the circumstances of which a mediator will have to inform the parties in a dispute. Therefore, before starting or proceeding with their activity, mediators must disclose any possible circumstance that could affect their impartiality or create a conflict of interest amongst them, such as:
In any of the above cases, mediators will only be able to accept or continue the mediation when they guarantee their complete impartiality and only if the parties involved in the dispute agree in writing to their involvement in the mediation. The duty to disclose this type of information applies throughout the duration of the mediation.
The principle of Equality of Arms entitles parties in the mediation to equal opportunities. The mediator must ensure they are given a fair chance to participate equally and that the expressed opinions are respected and exposed equitably. The mediator must not behave in any case in a manner that is detrimental to or in favour of any of the parties.
The preamble of Royal Decree-Law 5/2012 emphasises the requirement that all professionals involved in the process of mediation must be “neutral”. This characteristic defines the role of the mediator to the point that in many countries, a person acting as a mediator is called “neutral”. According to article 8 of the Royal Decree-Law, specifically devoted to the principle of neutrality, a mediation must take place in a way that it allows the parties involved in the conflict to reach an agreement on their own accord.
The role of the mediator, according to this principle, is, ultimately, to facilitate the communication between the parties and to ensure that the necessary information and advice is made available to them. It is the duty of the mediator to assist the parties with all means available to him/her in achieving a resolution of the conflict on their own. If this is achieved, not only are the chances of maintaining the underlying relationships between the involved parties higher, they are also in control of the process until the final resolution.
In order to reinforce neutrality on mediating institutions, Article 5 stipulates that should they also be involved in providing arbitration services, they are to adopt the necessary measures to ensure a clear separation between both activities.
At the core of any mediation process rests the principle of confidentiality, a privilege that encouraged quite a number of legislators to attempt a regulation of this process in order to make it a guarantee in their systems. According to the principle of confidentiality, any documentation used during the process of mediation is rendered confidential. This obligation extends to all information that might have been produced during the course of the mediation and subjectively to the mediator and intervening parties.
The principle of confidentiality binds mediators and those participating in the mediation process to refrain from declaring or presenting documentation in a judicial or arbitration process on the documents that have resulted from a mediation or related to it.
This principle anticipates some of the exceptions already foreseen in comparative law: (i) In those cases when the parties expressly and in writing agree to have the principle of
confidentiality revoked; (ii) or in those cases when it is requested by the judges of the corresponding criminal jurisdiction by means or judicial resolution. This principle prevents expert witnesses from providing any information obtained in a mediation or arbitration that bears a relationship with the case, except if agreed by the parties. To this end, the Decree prevents judges and courts from refusing to grant applications for assistance made by the parties or their representatives.
The conciliation does not affect the expert’s natural duty to preserve and protect the expedient for a reasonable period of time. The Royal Decree-Law stipulates that when the mediation process comes to a close, the mediator or the mediating institution is to return the documents presented to each of the parties and preserve and protect the expedient for a period of six months.
Simplicity, Swiftness and Affordability
Even if the Royal Decree-Law does not classify simplicity, swiftness and affordability as principles by which to govern and inform the process of mediation, it implicitly intends to establish the bases for a simple, fast and affordable process that ultimately encourages parties involved in a dispute to use it to resolve their differences before resorting to the courts. For this purpose, it provides for simplicity in processing, flexibility, low cost and short duration while encouraging the involved parties to determine the iter or its main phases.
One of the clear manifestations of the above principles found throughout the text is the “delegalisation” or loss of the central role played by the law in favour of alternative methods of dispute resolution.
Another expression of these principles is that the Decree-Law only sets out those requirements that are needed in order to validate the agreement, as well as the fact that the mediation is organised in a manner that is convenient to all parties.
Good Faith and Mutual Respect
According to the Royal Decree-Law, parties involved in a dispute must behave according to the principles of good faith and mutual respect.
These principles are translated in practice through the obligation imposed on parties to stop them from filing any judicial or extrajudicial actions related to their object for the duration of the mediation. Having committed to a mediation and having started participating in such process prevents parties in the mediation from having access to the courts, institutions which would have been informed of the cases undergoing mediation and their duration.
Another important consequence of the principle of good faith and mutual respect is that parties are obliged to cooperate and support the mediator throughout the process, always maintaining the appropriate deference towards his/her activities.
Finally, parties will be deemed to have acted in bad faith if they make a valid and justified payment request prior to taking the matter to court or if they start a process of mediation or conciliation against the other party.
1 See PÉREZ MARTELL, R. Mediación civil y mercantil en la Administración de Justicia. Tirant lo blanch. 2.008. SÁNCHEZ, FLORA, La Mediación-. Solución Intermedia de Conflictos, Panamá, 1999. SCHIFFRIN, A. La Mediación: Aspectos Generales, Editorial Paidós, Buenos Aires., 1996.
2 Royal Decree-Law on mediation, 5th may. Official Journal os Spain núm. 56, 6th march, 2012, Sec. I, p. 18783. http://www.boe.es/boe/dias/2012/03/06/pdfs/BOE-A-2012-3152.pdf
3 Directive 2008/52/Ec of the European Parliament And of the Council, of 21 May 2008 on certain aspects of Mediation in Civil and Commercial matters. Official Journal of the European Union L 136/3, 24.5.2008. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:En:PDF
4 See KATSH, Ethan, RAINEY, Daniel, WAHAL, A. et al. (2011). Online Disputes Resolution: theory and practice. Eleven eds., 2012. See also VILALTA, Aura Esther.
5 Rec. 98/257/EC: Commission Recommendation of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes. http://ec.europa.eu/consumers/redress/out_of_court/adr/acce_just12_en.pdf
6 Proposal for a directive of the european parliament and of the council, on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR). Brussels, 29.11.2011, COM(2011) 793 final. 2011/0373 (COD) http://ec.europa.eu/consumers/redress_cons/docs/directive_adr_en.pdf
7 Proposal for a Regulation of the European Parliament and of the Council, on a Common European Sales Law. Brussels, 11.10.2011, COM(2011) 635 final. 2011/0284 (COD) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0635:FIN:EN:PDF
8 Proposal for a Regulation of the European Parliament and of the Council, on online dispute resolution for consumer disputes (Regulation on consumer ODR). Brussels, 29.11.2011 COM(2011) 794 final. 2011/0374 (COD) http://ec.europa.eu/consumers/redress_cons/docs/odr_regulation_en.pdf
9 CORTES, Pablo, Online Dispute Resolution for Consumers in the European Union, Routledge, July 22nd 2010. See also, MARTÍN DIEZ, F. “Alternativas extrajudiciales para al resolución de conflcitos civiles y mercantiles: perspectivas comunitaria”. La Ley 2.006.
10 See MOORE, Christopher. The Mediation Process. Practical Strategies for Resolving Conflict. 3o ed. Ed. Jossey-Bass. 2.003 and SPENCER, D. BROGAN, M. Mediation law and practice. Cambridge. 2.006. See also VILALTA, Aura Esther.