Mediation has become a trend in recent years, not only in Spain but also in many western countries.
It is an extrajudicial way to resolve conflicts in almost all areas in an amicable way, through dialogue and negotiation.
That is why this method is gaining ground in different legal areas, as is the case of Family Law. Conflicts between spouses or partners, divorces, separations, custody issues, pensions….
It is possible to discuss virtually any type of family dispute without the need for a judge to decide, especially now that a new law has been passed in Catalonia: Law 9/2020, of July 31, amending the second book of the Civil Code of Catalonia, relating to the person and the family, and Law 15/2009, on mediation in the field of private law. This long-awaited Law seeks precisely to promote mediation as an alternative method of conflict resolution in the family sphere, especially when there are minors affected by the situation of disagreement.
The advantages of this method are many:
mediation is simpler, more informal, more economical and faster than the judicial process, in addition to the advantages of freeing the Family Courts and Tribunals from the burden. In this post we tell you what this regulation consists of and how it will affect families from now on in Catalonia.If you need help in a case related to Family Law, consult our team.
New Law on family mediation in Catalonia: know its key points
The new Law on mediation in Catalonia, which comes into force on November 4, 2020, seeks to promote mediation and prevent the lack of information and ignorance of this means of alternative dispute resolution from leading affected persons and professionals in this sector to resort to litigation.
As stated in the regulation itself,“the aim is to promote mediation as an alternative method of conflict resolution that has proven advantages, such as saving time, saving money and reducing emotional costs, and which also involves and makes the parties responsible for the resolution of the conflict that affects them and, therefore, increases the efficiency in the execution of the agreements reached”.
These are some of the keys to the standard:
- It is made explicit that mediation is mandatory when it has been expressly agreed prior to the exercise of legal actions.
- It is established that attendance at the previous mediation session is mandatory and that non-excused non-attendance is not subject to confidentiality and must be reported to the judicial authority.
- With regard to the effects of the annulment of marriage, divorce and legal separation, the possibility of including in the regulatory agreement agreements the possibility of submitting to mediation and other alternative dispute resolution mechanisms is expressly incorporated.
- Once the judicial process has begun, the judicial authority, at its own initiative or at the request of one of the parties or of the lawyers or other professionals, may refer the parties to a prior session on mediation, of a compulsory nature, to make them aware of the value, advantages, principles and characteristics of mediation.The parties should be listened to so that they can reach an agreement.
If so agreed by the parties, who must be heard, this session may continue, at the same time or at a later time, with an exploration of the conflict that affects them.
The parties may decide whether or not to opt for the mediation procedure, and may participate in the pre-session and mediation assisted by their lawyers.
This assistance is necessary if required by the parties or if so ordered by the judicial authority and must always be carried out with full respect for the principles of mediation and equality between the parties. - The rule expressly defines the principles on which principles on which family mediation must be based: the initiation of a family mediation procedure is subject to the principles of voluntariness and confidentiality. principles of voluntariness and confidentiality.
- Regarding the validity of the agreements reached in mediation, once they are incorporated into the judicial process, they must be submitted for judicial approval.
- Regarding the functions of the professional associations, the fulfillment of the deontological and disciplinary function with respect to the members practicing mediation is reinforced, adding the function of ensuring that all members comply with the obligations of information to clients and of promotion and subjection to mediation imposed by the respective laws or codes of ethics.
- In the same terms, the obligation of licensed professionals to inform their clients about mediation and other conflict resolution formulas and to try to resolve conflicts that they may have in the exercise of their profession with their clients or colleagues or with other persons through mediation or other extrajudicial forms of conflict resolution is remarked.
- The purpose of the Private Law Mediation Center of Catalonia extends not only to the promotion and administration of mediation, but also to the promotion and administration of other alternative dispute resolution methods.
Regarding the manner in which the prior mediation session will be carried out, the Law establishes the following:
- In the previous session, people will be advised on the value, advantages, principles and characteristics of mediation. Based on this knowledge and the specific case, they will decide whether or not to opt for mediation.
If agreed by the parties, who must be listened to, the session can be extended to the exploration of the conflict that affects them.
In the case of a mandatory pre-session, non-excused non-attendance is not subject to confidentiality and must be reported to the judicial authority. - The parties may designate by mutual agreement the mediator from among those registered in the General Register of the Mediation Center of Catalonia.
Otherwise, they must accept the one designated by the responsible body. - The parties who decide to initiate the mediation regulated by the Law must accept its provisions and the mediation fees, which must be provided prior to its commencement, unless they enjoy the right to free mediation.
- When the judicial process has already begun, the judicial authority may arrange for the parties to attend a pre-session on mediation if the circumstances of the case make it advisable.
In this case, the pre-session is free of charge for the parties.
The relevant public body shall facilitate the pre-session and ensure, where appropriate, the proper conduct of the mediation.
The parties may participate in the pre-session and in the mediation session assisted by their lawyers.
This assistance is necessary if required by the parties or if so ordered by the judicial authority and must always be carried out with full respect for the principles of mediation and equality between the parties. - The pre-session must be held within the shortest possible period of time, which may not exceed one month, unless the judicial authority orders otherwise.
If the time limit established for holding the pre-session is exceeded for reasons beyond the control of the parties, the obligation to participate lapses, as well as the rules applicable to unexcused non-attendance. - The pre-session may not be initiated or, if initiated, must be interrupted when a woman is involved who has suffered or suffers any form of gender-based violence within the couple or within the family environment that is the object of the mediation.
If you need help to resolve a family conflict with your partner or ex-partner and you would like to go to family mediation, consult our team: we can offer you a complete, close and tailor-made advice.
