Mediation and Arbitration
Mediation and Arbitration
Omnis reiciendis quo.
It is a peaceful method of resolving conflicts where a third party, the mediator, helps the parties to seek the best solution for everyone. Mediation on time prevents the prolongation of legal processes, it reduces the severity of the conflict and lessens the distress of the affected persons.
Due to its multiple benefits, mediation is well-established in most European countries and in others, such as the United States, Canada and Argentina.
In accordance with the Law 15/2009, mediation is accessed at the request of the interested party or when requested to do so by the judicial authority. It can be requested by people who have the capacity and a legitimate interest to address the subject of the mediation. Minors, if they have sufficient knowledge, and in all cases, are over the age of twelve can intervene in the mediation processes that affect them and, in exceptional circumstances, they can bring about the mediation.
Ultimately, mediation is a resource at the service of the citizen that encourages constructive management of the conflict.
The mediators registered in the registry of the Private Law Mediation Centre of Catalonia have an official university qualification, which they complement with specific training on mediating techniques that makes them experts in mediation.
Undoubtedly, they are a key person in this entire process because their aim is to promote dialogue and help people to reach agreements that make it possible to have a valid solution for everyone that is quicker and more cost-effective.
The mediator does not decide or impose anything on the parties, rather, they listen to them and help them find, by themselves, the best solution via dialogue.
The mediator can be appointed by the parties or by the Private Law Mediation Centre of Catalonia.
The intervention of the mediator makes it possible for people to be able to talk about their conflict and jointly seek a valid and responsible solution that is beneficial for everyone, especially the children.
Mediation helps people to peacefully resolve their conflicts, even before starting court proceedings.
With mediation there are no winners or losers, but rather people who make an effort to find the best response for the problems produced by the conflict.
Mediation prevents long legal proceedings and, therefore, it reduces both the personal and financial attrition of the interested parties and speeds up the judicial action.
Mediation encourages dialogue and recognises the key role of the parties, who get involved in the pursuit of a solution that is useful for everyone.
In order to provide citizens with an alternative pathway, that is extrajudicial, easier and more practical, the Regional Government of Catalonia has developed this law within the legal framework of Catalan civil law with a desire to support people at times of difficulty.
The Private Law Mediation Centre of Catalonia was founded as an institution attached to the Department of Justice and its aim is to use mediation to help people, families and the community in general to peacefully resolve their conflicts and reach an agreement by themselves that is satisfactory for everyone.
In general, mediation is comprised of four basic identification characteristics: wilfulness, confidentiality, impartiality and neutrality.
This characteristic affects both the parties and the mediator and is an underlying aspect throughout the process. Mediation is not possible without the will of the parties. This wilfulness needs to be provided from the start of mediation until the end. This means that, if they wish, at any time, the parties can freely withdraw from continuing the mediation. Likewise, the mediator can terminate the mediation if the specific circumstances of the case make it advisable to do so.
The content of the sessions and the information that may arise during the course of the mediation remains confidential between the parties and the mediator. In principle, the only thing that can be disclosed about mediation is its result, that is to say, the agreement or non-agreement.
The Law 15/2009, of 22 July, on mediation in the sphere of private law , stipulates that everyone who intervenes in the mediation procedure is obliged to not disclose the information that they find out as a consequence of this mediation. The duty of confidentiality should be maintained by both the mediator and the parties. This duty is only exempted for statistical purposes or if the mediator detects the existence of “a threat to the life or the physical or psychological integrity of a person or acts that are criminally prosecutable".
This is a characteristic relating to the mediator and the implementation of the mediation process. The mediator does their work by encouraging maximum balance between the parties, without taking sides with any of them, but rather, encouraging and boosting the participation of the two parties in the same way.
It refers to the non-interference of the mediator in relation to the end agreements, in the sense that the result of the mediation must fully be the result of the work and collaboration of the parties. The point of view of the mediator should not in any way condition the content of the final agreements, which the parties must live and experience as completely their own.
Mediation, as a conflict resolution process based on dialogue and the search for constructive solutions, has several benefits for everyone who, directly or indirectly, experiences and suffers a conflict. Among these benefits, it is worth highlighting the following:
- Key role of the parties
- Greater level of fulfilment of "their agreement"
- It encourages constructive solutions
- It provides greater satisfaction with the conflict management process
- Nobody feels that they have lost
- It prevents destructive confrontation
- It takes into account the interests and needs of everyone
- It encourages educational elements
- It facilitates communication and preserves the relationship
Legislation of Catalonia
- Law 25/2010, of 29 July, of the second book of the Civil Code of Catalonia, relating to individuals and the family
Official Journal of the Regional Government of Catalonia no. 5686, of 5 August. Consolidated version
Official Journal of the Regional Government of Catalonia no. 5432, of 30 July
- Decree 135/2012, of 23 October, approving the Regulation of Law 15/2009, of 22 July, on mediation in the sphere of private law
Official Journal of the Regional Government of Catalonia no. 6240, of 25 October
- Order of the Ministry of Justice / 188/2017, of 1 August, creating the ADR Justice Awards for research work and practical initiatives in the field of mediation and other means of conflict resolution and approving the grounds for awarding
Official Journal of the Regional Government of Catalonia no. 7427, of 4 August 2017
- Order of the Ministry of Justice / 119/2017, of 14 June, publishing the list of current rates that the Ministry of Justice handles
Official Journal of the Regional Government of Catalonia no. 7393, of 19 June
- Order of the Ministry of Justice / 245/2014, of 28 de July, establishing the necessary requirements and conditions for registration in the general registry of the Private Law Mediation Centre of Catalonia for people who do not have approved training
Official Journal of the Regional Government of Catalonia no. 6680, of 6 August
- Order of the Ministry of Justice / 428/2012, of 18 December, regulating the basic content and the approval process of the specific training on mediation in the sphere of private law
Official Journal of the Regional Government of Catalonia no. 6282, of 28 December
Official State Bulletin no. 162, of 7 July. Correction of errors in Official State Bulletin no. 178, of 26 July. Consolidated version
- Royal Decree 980/2013, of 13 December, implementing certain aspects of Law 5/2012, of 6 July, on mediation in civil and commercial matters
Official State Bulletin no. 310, of 27 December
- Directive 2008/52/EC of the European Parliament and of the Council of 21 May on certain aspects of mediation in civil and commercial matters
- Recommendation no. R (98) 1 of the Committee of Ministers to Member States, of 21 January 1998, on family mediation