It has been a few months since the Draft Bill for the Promotion of Mediation was published, a text that promises to give a definitive boost to mandatoryfamily mediation. In today’s post we talk about the new features that will come, which promise to benefit thousands of families, by making it mandatory to go through a mediation phase before ending up in court in cases such as separation, divorce or custody.
What does this text consist of and how will it change the rules of the game in Family Law? Remember that we are family mediators in Catalonia and we can help you solve your case before going to court.
If you finally need to sue, we will assist you throughout the process.
Mandatory family mediation: What is the Draft Bill for the Promotion of Mediation?
The Draft Bill for the Promotion of Mediation, approved in January 2019 by the Ministry of Justice, aims at the definitive implementation of mediation as a complementary figure of the Administration of Justice for the extrajudicial resolution of conflicts in the civil and commercial fields in a more agile way and with a lower economic and personal cost for the parties.
The promotion of mediation also seeks to decongest the workload of the courts and thus shorten the response times of Justice.
The new regulation overcomes the model of mediation currently in force, based on its exclusively voluntary nature, by the so-called “voluntary” model. The ‘mitigated compulsion’, which obliges litigants to attend an informative and exploratory session in the six months prior to the filing of the lawsuit on a set number of matters. This session will be conducted by a mediator and will be aimed at exploring both the matter in dispute and the initial positioning of the parties, who will receive clear and precise information on the procedure, the work dynamics to be followed in the event that it is finally agreed to continue the mediation and its benefits compared to the judicial process in terms of time and cost savings.
Mediation does not require a lawyer or solicitor and the economic cost of resorting to a mediator is estimated to be much lower than what the parties would incur if they opted to go to court. This out-of-court mediation is therefore conceived as a necessary step to access the judicial process, but does not imply an obligation to undergo a full mediation process or to reach an agreement that puts an end to the dispute.
In which cases will family mediation be mandatory?
The matters that can be subject to mediation are framed in the civil and commercial fields and are characterized by responding to conflicts arising from personal or commercial relationships sustained over time.
Thus, it will be necessary to try mediation before going to court in the following types of actions:
- Measures adopted on the occasion of the declaration of nullity of the marriage, separation, divorce or those relating to the guardianship and custody of minor children, alimony claimedby one parent against the other on behalf of minor children (unless a proceeding for a crime related to gender violence had been previously instituted);
- Liability for professional negligence;
- Successions;
- Judicial division of assets;
- Conflicts between partners and/or with the management bodies of commercial companies;
- Claims in tort liability matters not arising from a traffic event (protected by the Law on Civil Liability and Insurance in the Circulation of Motor Vehicles);
- Food between relatives;
- Horizontal property and communities of property;
- Rights in rem over something else;
- Distribution, agency, franchise, supply of goods and services contracts, provided they have been the subject of individual negotiation;
- Claims for amounts of less than 2,000 euros between individuals when they do not arise from a consumer act (protected by the General Law for the Defense of Consumers and Users);
- Construction defects arising from a construction lease contract;
- Protection of the rights to honor, privacy and self-image;
- Lease proceedings to be heard through the ordinary trial.
As regards the out-of-court mediation procedure itself, it is left to the initiative of the plaintiff to propose the mediator and a transparent mechanism of appointment is articulated if the mediator is rejected by the opposing party.
As regards time limits, a maximum limit of three months is set for the complete development of the mediation process, during which the statute of limitations and expiration of the actions are suspended.
Intra-judicial mediation is also established, which will take place when the judge or court, after analyzing the case, considers that an alternative to trial may be more satisfactory for the parties, provided that there has not been an attempt at mediation prior to the commencement of the process.
It is decided not to suspend the course of the judicial process.
The draft bill also introduces new rules for the award of costs in case of breach of the ‘mitigated obligation’ of mediation, so that the costs of the process will not benefit the party that has not gone to a mediation attempt when it was legally required or had been agreed by the court during the process.
In order to act as mediator it will be necessary to be registered in the Registry of Mediators and Mediation Institution dependent on the Ministry of Justice or in the registries enabled for such purpose by the autonomous communities. It is committed to a better professional qualification of the mediator in the field of Family Law, who will be required to be trained in equality and detection of gender violence, so that, if the procedure is initiated and there is evidence of gender violence, the mediator can put an end to it. Within one year from the publication of the law, the modification of the training plans of the law degree as well as other related degrees to include the subject of mediation as a mandatory subject is foreseen.
The Preliminary Draft Bill for the Promotion of Mediation introduces reforms in three regulations: Law 5/2012, of July 6, on mediation in civil and commercial matters, the Civil Procedure Law and the Law on Free Legal Aid, to incorporate mediation among its services.
It will enter into force three years after its publication in the Official State Gazette to ensure a sufficient time margin for regulatory adaptation and to encourage the presence of mediators in all judicial districts. Turn to our family lawyers in Catalonia to resolve your family law issues.
