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Mediation is an extrajudicial method for the resolution of conflicts that is increasingly recurrent in the different areas of legal practice: family, civil, social, commercial, bankruptcy and criminal. Thanks to the impetus of different public and private entities, mediation is gaining presence as an alternative to a judicial system that is cumbersome, saturated and extremely slow to respond.

Mediation can be voluntary or compulsory (as is currently the case in judicial divorce proceedings or labour proceedings where this form of conflict resolution is legally required).

The process is generally essentially the same in all practice areas:

  1. The neutral party, the mediator, gathers information about the position of each party.
  2. Joint sessions are held to find common ground and reach a possible agreement.
  3. If an agreement is reached, it is formalised in a contract and given legal validity. A mediator must be duly registered with the bar association as such in order for this process and agreement to be binding.
  4. The agreement is presented to the court or competent authority for ratification and becomes as valid as a court judgement. In less time and at a lower cost.

Benefits of mediation

In recent years, the judicial system has been dragging a backlog that has caused lawsuits to drag on for years waiting for a date for their resolution. The pandemic has only worsened this situation. Mediation offers a much quicker and cheaper way to reach an agreement so that parties can get on with their lives.

A mediator can also help to achieve a much more personalised agreement that reflects the needs of both parties, with the end result having the same validity as a court judgement.

The economic and agile nature of this process makes it particularly suitable in situations that directly affect personal life, such as family situations after a divorce or inheritance, or that affect our home, such as in property communities or rentals.

By way of example, a judgement can take several months to arrive, but a mediation process can result in an agreement (legally valid as a judgement) in 5-7 sessions.

Key factors for successful mediation:

  1. A mediator who is experienced, professional and recognised as neutral by both parties.
  2. In situations where one or both parties come to the mediation process with a vindictive spirit or a desire for the other to lose rather than for everyone to win, the process is doomed to fail.
  3. Flexibility and respect.

Areas and examples of situations where mediation can be successful:

Examples of family and civil mediation

  • Disputes in divorce proceedings and other custody issues
  • Visitation schedules, division of holidays and holidays
  • Division of living expenses, education, extra-curricular activities.

Examples of mediation in the area of property administration:

  • Neighbourhood problems such as noise, respect for common areas.
  • Conflicts related to damages to third parties (water leaks, damp, etc.) when there is no insurance cover.
  • Non-payments to the community

Examples of commercial mediation:

  • Disputes between partners or shareholders
  • Problems with suppliers and clients
  • Industrial and intellectual property disputes
  • Breaches of contract
  • Unfair competition
  • Communication problems in family businesses
  • Negotiation of agreements to be included in the Family Protocol.

Examples of consumer mediation:

  • Problems in the purchase and sale of a product or service.
  • Problems arising from cancellation of travel and flights due to the pandemic
  • False or misleading advertising
  • Non-payment of contracted services or products
  • Discrepancies over the quality of products or services or their repairs
  • Disagreement in the contracting of banking and insurance services

Examples of insolvency mediation and the 2nd Chance Law:

This is an innovative alternative for the cooperative management of insolvency situations that brings significant advantages for both the debtor and the creditors.

This figure, introduced in the Insolvency Act and the Second Chance Law, is responsible for supervising and directing the out-of-court agreement. It is also responsible for requesting the declaration of insolvency proceedings in the event that the out-of-court payment agreement (AEP) fails.

Can I appoint my mediator?

The appointment is not made by the insolvent party. It is the notary and the Commercial Register who appoint the insolvency mediator, using the lists and in the established order. Their remuneration is also regulated and adapted to each situation.

Don’t forget to watch the video about mediation made by one of our lawyers and this one about insolvency proceedings (or 2nd chance law in the case of individuals) as a tool to revive a business, contact us to assess your case.

Photo by Gabrielle Henderson on Unsplash

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