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Important developments in the field of Mediation and Alternative Dispute Resolution, following the entry into force of Law 9/2020, of 31 July 2020, which makes the prior information session on Mediation mandatory.
On 4 November 2020, the law came into force that, for the first time, establishes the mandatory prior session in mediation matters concerning personal and family affairs, in particular, disputes over parental responsibility, consequences arising from the annulment of marriage, legal separation or divorce, and the appointment of guardianship in incapacity proceedings.
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But what is the real purpose of Law 9/2020?
The fundamental aim of the law is to genuinely promote mediation in the context of family disputes, particularly those involving minors, and to prevent a lack of information and awareness of this alternative dispute resolution method from leading parties and legal professionals to default to litigation.
How is mediation intended to be further encouraged going forward?
The aim is to strengthen mediation by making the prior information session on mediation compulsory, except, naturally, in cases where referral to mediation is excluded by law.
When is attendance at this "prior session" actually mandatory?
In two specific cases, which is why the obligation is described as "qualified mandatory"
- where the parties have expressly agreed to mediation prior to initiating legal proceedings, not only in relation to matters arising from the implementation or interpretation of the Parenting Plan, but also in respect of any aspect of the regulatory agreement governing nullity, separation or divorce.
- where the court has decided to refer the matter to mediation, either on its own initiative or at the request of one or both parties, or of the parties' lawyers or other professionals.
The voluntary nature of mediation is not incompatible with the obligation to attend a preliminary information session before the process begins.
The terminology has shifted: it is no longer referred to as an "information session" but as a "mandatory preliminary session".
Why "mandatory preliminary session" rather than simply an "information session" as before?
Because what is compulsory is attendance at the session itself and receipt of the information provided about what mediation is, how it works, and what its purpose and benefits are. If the parties then wish to proceed and are in agreement, the session can go further, moving into the exploratory phase, in which the conflict itself is examined.
In the cases described above, attendance at that first session is therefore mandatory, not the commencement of a full mediation process.
What happens if a party fails to attend the mediation session?
The court may interpret an unjustified refusal to attend as conduct contrary to the principle of procedural good faith, since it amounts to rejecting without grounds an opportunity offered by the court in the interests of reaching a better outcome. (The Basque Country introduced the mandatory nature of the preliminary session as early as 2015, when legislating on family arrangements in cases of separation or relationship breakdown.) Such conduct may also result in the party being ordered to pay the other side's legal costs on grounds of vexatious conduct.
An unjustified refusal to attend a mandatory preliminary session may also be regarded as conduct contrary to positive parenting principles.
Under the new rules, non-attendance at mandatory sessions is no longer subject to confidentiality and must be reported to the judicial authority.
Will the mediator who conducts the mandatory preliminary session also handle the subsequent mediation process?
One notable innovation introduced by the law is that the mediator who conducts the preliminary session will go on to lead the full mediation process, should the parties decide, following that initial session, to proceed with mediation.
It is clearly established that, at this preliminary session, each party's lawyer may attend alongside their client, with a view to ensuring the greatest possible transparency throughout the process.
What is the lawyer's duty to inform their client?
Finally, lawyers are legally required to advise their clients on the merits of resolving disputes through out-of-court agreements, as well as on mediation and other legally recognised alternative dispute resolution methods, as alternatives to litigation.
