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Mediation: resolution of disputes with the help of a notary

 

The need to ease the workload of courts and tribunals and to find better ways to resolve disputes between individuals and companies has led to the creation of alternative methods of resolving disputes. Two of those methods, mediation and arbitration, are largely unknown in Spain. Notaries, public officials of the State and legal experts, can always advise you about it and even occasionally act as arbitrators or mediators, and help you to settle any dispute you have with another party without having to go to court.


What is mediation?

Mediation is an extra-procedural procedure for resolving disputes or conflicts in a private and peaceful manner led by a mediator who encourages better dialogue between the parties. The mediator has no authority to impose an agreement, but will help them to reach a satisfactory solution without having to go to the courts of Justice, under the strictest confidentiality guaranteed by law.

- It is broad: It can be applied to all kinds of disputes between individuals and companies on which an agreement may be reached.
- It is effective: Good mediators achieve more than 70 % of agreements.
- It is fast: it reduces times. From an average of eight years of court proceedings to a few weeks.
- It is economical: it reduces the costs of the procedure.
- It is flexible: it makes it possible to reach creative and amicable solutions.


Start of Mediation

Being a voluntary procedure, to initiate mediation it is necessary that both parties agree to choose this method.


It may also be unilaterally commenced, but one of the parties must formally invite the other by means of:


- A mediation centre
- A notary mediator

Designation of Mediation

Notaries must be properly trained as mediators to perform this function. This training must be accredited.

The mediator may be chosen by the parties by mutual agreement. He/she may also be designated by the mediation centre chosen by the parties if they do not exercise their right to designate the mediator themselves.

Mediation Stages

1. Informative session

The mediator will inform the parties about the procedure (its characteristics, organisation of the procedure, legal consequences of the agreement that might be reached, and deadlines for signing the minutes of the constituent session). At that session they will also be given the confidentiality agreement for signature.

The mediator notary will explain the four basic pillars for a proper functioning of the mediation:

1. Wilfulness. In the same way that it starts voluntarily, either party can abandon the procedure at any time.
2. Impartiality and neutrality by the mediator notary.
3. Confidentiality. The mediator cannot disclose the information he/she receives, even to a court.
4. Flexibility to adapt to the needs of the parties.

2. Mediation procedure

Although it may be very different in each case, a general model would be the following:

1. Constituent session and gathering of information. The mediator shall convene the parties to the first meeting. He/she shall create a space for dialogue trying to obtain a joint and shared vision of the dispute.
2. Identification of the issues in dispute. The mediator notary shall identify the issues and interests that concern the parties, and will work with them and their lawyers to seek new understandings.
3. Caucus stage - individual session with parties. The mediator notary can detect underlying issues that were not explicitly addressed in the bilateral negotiation. He/she will then request and conduct an individual session with each party to find out what other issues are of concern to them and may affect the achievement of an agreement.
The mediator may not subsequently disclose this information without authorisation in the joint sessions, but with that information he/she can direct the dialogue more profitably.
4. Negotiation sessions. The mediator will convene as many sessions as he/she deems necessary. In such sessions, he will apply negotiation techniques to search for possible consensus alternatives for each of the issues in dispute. He will encourage the parties to think, imagine and present, in a flexible and non-binding way, their own management and solution proposals for each point of divergence. The mediator will draw up minutes of each session.

   Objectives to achieve:

        1. Define interests
        2. Identify common points
        3. Generate ideas
        4. Provide solutions
        5. Propose agreements

 

3. Mediation agreement

If, as expected, the parties reach an agreement, the mediator will draw up the final minutes. These will clearly and comprehensibly reflect the agreements reached. hey must be signed by all parties and by the mediator.

Upon signature of the minutes, the notary mediator or the lawyers of the parties will include all the agreements set out in the minutes in the Mediation Agreement, which will also be signed by all parties or their representatives.

The mediator informs the parties of the binding nature of the agreement reached and the possibility of recording it as a public document, an executive title providing maximum legal certainty in our law.

No agreement

   Mediation may end without agreement because:

      - Any of the parties terminate the proceedings
      - The time agreed by the parties for the duration of the procedure has elapsed.
      - The mediator perceives that the stances are irreconcilable

   The final minutes will be drawn up, which will include the conclusion of the                   procedure without an agreement; they must be signed by both parties

 

Cost of mediation

  • The cost of mediation is generally calculated based on the hours devoted to the procedure (average cost of 150 euros/hour) plus external costs arising therefrom.
  • Costs are usually divided equally between the parties that resort to mediation.
  • Resorting to mediation must not lead to a waiver of a lawyer's assistance or advice and, therefore, his/her fees will also need to be taken into account.
  • Mediation is much cheaper than judicial proceedings as no court procedural representatives' fees are incurred, nor court fees, nor a possible order to pay costs.
  • If the agreement is recorded as a public document, the notarial fee will be applied to the documents without an amount, and therefore the notary fees will be very small. (View notary fees)

Cases where notary mediation may apply

Civil Mediation
 
Business Mediation
 
Family mediation
- Civil liability claims
- Disputes between co-heirs and/or co-owners
- Bank contracts
- Mortgage contracts
- Insurance contracts
- Contracts for the purchase and sale of property
- Lease agreements
 
 
- Disputes between partners
- Disputes between companies and clients
- Disputes between companies and suppliers
- Disputes between companies and workers
- Intellectual property conflicts
- Disputes between companies
- Corporate disputes arising from civil construction
 
- Family disputes over inheritances
- Marital disputes
- Disputes between de facto couples
- Disputes in family businesses
- Parental authority and guardianship disputes
- (etc.)

 

The notary as mediator

The essential part of this model is the mediator, who must find a negotiated solution accepted by the parties. Notaries, public officials to whom the State vests the power of issuing public attestation and controlling legality, possess many of the characteristics inherent to mediation: legal preparation, independence, impartiality or guarantors of legal certainty. The notary adds to all this appropriate training and skill in the use of the necessary mediation techniques.

The mediator does not judge, decide or impose solutions. He/she simply helps the opposing parties to listen to each other, understand each other's interests and needs and explore the different avenues that can lead to a satisfactory solution for both.

In many cases it is advisable to consider subsequent arbitration if mediation has failed to resolve the dispute by agreement.

 
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