MEDIACIÓN CIVIL Y MERCANTIL: LA LEY 5/2012, DE MEDIACIÓN EN ASUNTOS CIVILES Y MERCANTILES, Y LA JURISPRUDENCIA DEL TRIBUNAL SUPREMO SOBRE MEDIACIÓN. CUESTIONES DE LA MEDIACIÓN CONCURSAL.

Abstract

Royal Decree-Law 5/2012 on mediation in civil and commercial matters transposes Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters in cross-border litigation. Inspired by UNCITRAL's Model Law on International Commercial Conciliation, the royal decree-law seeks the legislative policy objective of fostering conflict resolution by the parties themselves, so that court proceedings will be used only as a last resort. Whatever the name it goes by, mediation is a means of resolving disputes in which two or more parties try voluntarily to reach an agreement by themselves, without a third-party mediator. The new private mediation law establishes the procedural effects of mediation and the mediation agreement. In two innovative developments, the law states that a mediation agreement can be used as an enforcement order if it is notarized, and that, if a party fails to participate in mediation, it may be sentenced to pay costs. Insurance policy matters and bankruptcy matters stand foremost among the kinds of commercial matters that can be submitted to mediation. In insurance, mediation may be a good option for issues between insurance companies, while between private citizens arbitration seems to be a better alternative solution. Mediation in bankruptcy is not expressly included in the royal decree law, so, while it would be acceptable, certain aspects do need to be regulated in the law's application (such as mediator training in how to help find solutions to insolvency), and some portions of the Bankruptcy Act need to be reformed. The advantages to mediation in bankruptcy are that the procedure is shorter and less costly, and the process can be performed with discretion, without the debtor's losing any credit.