Today, January 21st, Europe celebrates Mediation Day commemorating the approval of the first regulations at the community level the 21st of January 1998. Many have been the voices that, since then, have pursued the articulation of alternative systems into the classical jurisdictional way. Influenced by the English model, in which it is heavily implemented, other legal systems have been introducing this interesting figure at the core of their processes, between them, the Spanish Legal System. Nowadays, Mediation constitutes in a mechanism for dispute resolution that functions alongside the Legal Courts that has certain advantages like flexibility, agility and affordability of the procedure. It is, at it’s core, a process characterized by the intervention of a neutral professional third party into the dispute who facilitates the communication between the conflicting parties, so they can reach an agreement while holding on to the decision power. In our country, we find this tool regulated in the Ley 5/2012, de 6 de julio, de mediación en asuntos civiles y mercantiles, which transposed into the Spanish legislation the Directive 2008/52/CE, of the European Parliament and of the Council, from May 21st 2008.
Even though it is a solution freely applicable into any field, in these two areas it is endorsed and delimited by our Legislation. In that sense, it is expected that a Mediation process can be started at the request of a judge when it is deemed necessary, at the prior hearing and always with the express consent of the interested parties, or it can also be started by them of their own simple will. This process also provides certain procedural guarantees like the interruption of limitation and expiration periods of legal actions with the initial request or the Enforcement Order status that the mediation agreement acquires when it is elevated to notarial deed by both parties. Further still, it is important to highlight that the Parlament de Catalunya, with the approval of Ley 9/2020, de 31 de julio de modificación del libro segundo del Código civil de Cataluña, relativo a la persona y la familia and de la ley 15/2009, de mediación en el ámbito del derecho privado, anticipates the national legislation and, in order to facilitate broader compliance of the European Directive cited previously, imposes a mandatory previous mediation session in the cases where it is not explicitly prohibited by law. From TORRALBA BERTOLIN ABOGADOS we urge everyone who would like to know more about this subject to contact us at …
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