BUSINESS MEDIATION

For the settlement of any dispute arising out of the interpretation or application of …. (contract, agreement, …) or arising therefrom, the parties agree to accept the mediation of the Consulate of the Sea of ​​the Official Chamber of Commerce, Industry, Services and Navigation of Barcelona in order to resolve their differences or conflicts.

Concept:

It is a process of dispute resolution recognised by law, in which the parties voluntarily and by themselves, try to reach an agreement with the help of a mediator.

Principles:

Voluntary nature: Mediation is based on the principle of voluntary action, according to which the parties are free to accept or not, and also to withdraw at any time.

Impartiality and neutrality of the mediator: The mediator does not judge or take part, but must participate, at all times, to maintain a balance between the parties.

Confidentiality: All the people involved in the mediation procedure are under the obligation not to disclose the information they know as a result of this mediation and, to this end, to formalise the corresponding written commitment to comply.

Good faith: The parties and mediators must act in accordance with the requirements of good faith, which requires acting honestly and cooperating and working with the other party to reach an agreement. Not to use mediation to disseminate or obtain information for any other purpose other than that of the proceeding.

One of the most distinctive features is the flexibility, therefore, the procedure and the dynamics that are followed are tailored to the dispute and the parties. It can be organised in the best way agreed to by the parties.

It is a formal but not rigid procedure. This feature enables it to be agile.

It is also a regulated procedure, as we saw at the beginning of the explanation, and as such provides legal certainty and effectiveness.

It is a procedure that adapts and comes very close to the day-to-day running of companies, such as networking, negotiating and hiring.

It is a procedure that is not imposed, but is accepted voluntarily.

It is a procedure that focuses on the interest of the parties and seeks to find a solution, not just the legal response sought through other proceedings.

Type of cases:

The mediation process regulated in Law 5/2012 is applicable to any dispute in which the voluntariness of the parties is complied with, there is sufficient time and it can be carried out in the appropriate place.

Despite this, the application of this Law referring to civil and commercial matters includes all the cases, except the following that are listed below and which have their own specific regulations:

Criminal mediation
Mediation with public administrations,
Labour mediation
Consumer mediation

Therefore, we can deal with: sales, loans, mortgages, insurance, civil liability claims, leases, horizontal property, easements, boundaries, community of property, inheritances and donations, disabilities and guardianships, family business, companies, cooperatives, unfair competition, commercial contracts, insurance and banking contract, intellectual property, industrial property, tenders, negotiation with suppliers,…

In the event that the court proceeding has not been initiated, but the mediation proceedings have been initiated, it may entail the abstention of hearing from the court by either of the parties submitting a plea and also if there was an agreement between the parties to submit to mediation.

In the event that the court case has been initiated, the request for mediation may be suspended at the request of the parties by mutual agreement.

In such cases, even though there is a ruling with the declaration on the parties’ claims, it does not provide specific details on how it should be enforced or, if it is specified, there is room for the parties to determine the best way to carry it out; the parties, even with a judicial or arbitration resolution, have the option of going to mediation for a better solution.

Who can access it?

Mediation is open to anyone who so requires it and who has the right to freely mediate on the subject in question, without prejudice to the parties designating who shall represent them in accordance with the law.

Who are the participants?

The participants in the mediation proceedings are the parties and the mediator, without prejudice to the participation of third parties such as parties’ lawyers and other persons that the parties agree to, either due to their experience, knowledge and/or connection with the dispute.

Who are the mediators?

Mediators are professionals with the appropriate university education or advanced vocational training who are specifically trained in mediation, in this case in the civil and commercial field.

The mediator acts as the director of the proceedings and facilitator of the dialogue between the parties, helping them to seek and come up with a solution that responds to their true interests and that is beneficial to all and that results, where appropriate, in an agreement entered into voluntarily.

His/her participation is independent, impartial and neutral and shall ensure, at all times, balance throughout the proceeding and shall also ensure that the parties have all the necessary information at all times.

It is subject to a regime of incompatible activities and responsibility.

What obligations do the participants have?

Participation is voluntary and the parties may withdraw at any time.

Once the mediation has been accepted, without having previously initiated any judicial or arbitration proceedings, the parties undertake not to initiate any legal action with the exception of the request for precautionary measures or those that may be urgent and essential in order to prevent the loss of property and rights.

It is confidential and, therefore, the parties must honour this obligation in the course of the proceeding and thereafter, as well as sign the corresponding confidentiality clauses that they establish themselves, limiting or extending confidentiality. If they do not agree on anything, it is understood that the entire content of the proceeding shall be deemed confidential, except for the identification of the parties and the agreements. A breach of confidentiality will entail liability.

A balance must always be struck between the parties throughout the proceedings. For this reason, the mediator must be neutral and impartial, ensuring that this balance between the parties is real and, therefore, can intervene to correct imbalances between the parties.

At the same time, it has behavioural requirements that are governed by the principle of good negotiating faith and mutual respect, which the mediator shall also ensure are maintained at all times.

Such is the strength of these rules throughout the process that, if the mediator observes that they are not maintained, he/she may terminate the mediation and withdraw therefrom. It should be noted that the parties have a duty to cooperate with the mediator. Furthermore, the parties may withdraw or request that the process be continued with another mediator or not continue the proceedings.

The mediation proceeding is adapted to the dispute and the parties. Flexibility is one of its main characteristics. It can be organised in the best way agreed to by the parties. It can be carried out by combining individual and joint sessions/meetings with the parties.

It follows the formalities required by law that the mediator ensures are complied with. The mediator is in charge of steering the proceedings and helping to create the ideal dialogue environment to reach agreements.

At a formal level, it is carried out at the request of the parties, followed by an Information & Assessment Meeting to explain the entire process in detail, characteristics and development.

Once the procedure has been accepted, it begins with the organisational hearing which is recorded in initial Minutes, followed by the sessions that have been planned and ending with a final session that is reflected in the final Minutes in which the agreements are recorded.

Characteristics of the procedure: guarantee, agile, effective, quality, reliable, easy to access, flexible, rigorous, cost-effective,…

First of all, the Chamber has a Business Mediation Regulation http://www.consolatdemar.org/documents/Reglament_MediacionDOGC_CAT.pdf clear, transparent that allows you to adapt to the parties and conflicts. This Regulation provides sufficient information to companies and mediators, which obviates having to make interpretations of the operation or rules of the game, which makes it clear what the obligations of everyone involved are and makes it clear that the objective is to help the parties to come up with the best solution; that it establishes ethical rules of conduct to benefit the proceeding and guarantees of confidentiality; aspects that are all necessary to build trust.

At the same time, the Business Mediation Regulations establish objective selection criteria to be applied in the designations for cases administered by the Chamber.

Why does it have these characteristics?

Because when the Chamber envisages useful tools for companies, it always adapts to their situation and way of working, always aimed at the development, consolidation and growth thereof, because it is what truly gives added value to the general economic interest which the Chamber serves.

It is an easily accessible, cost-effective and agile service, removing the administrative and management burden on the parties and the mediators so that they can focus on the dispute. That offers the suitable spaces.

The added value of the Chamber as an administrative institution:

• It shares characteristics with its own mediation procedure such as being – Neutral: it is a public institution (company and/or business negotiations). It offers a neutral venue to carry out the procedure. – Impartial: must pursue the public interest –
• It ensures compliance with the pre-established rules of the mediation procedure for the mediators and the parties as well third parties (the Chamber as an organisation they can turn to in the event of doubt, incident,… confidentiality,…)
• It adds value to the designation of mediators who must have previously met technical solvency and minimum experience requirements.
• The participation of each party’s lawyers is requested for an issue of greater efficiency, quality and guarantee, as the parties must have access to the necessary information and legal advice at all times.

The Register of mediators http://mediadors.cambrescat.org/wp-content/uploads/2013/12/03-REGLAMENT-REGISTRE-PERSONES-MEDIADORES.pdf which, as for all the Chambers of Catalonia, offers qualified professionals – training and experience in dispute resolution and the business world – with an objective incorporation procedure, which enables objectively choosing the most suitable person according to the type of dispute being dealt with and which guarantees the rights of the parties at all times (recusal of the mediator).

How is the duration of the sessions established? How many sessions should be held?

The duration is established by the parties together with the mediator, having estimated an approximate duration of between two to four months. This term also depends on the number and duration of the sessions that are established and by reason of the subject-matter, since they can be organised in a day, half-day, over several days,… according to the nature of the dispute and the interests of the parties.

At what point do I know how much it will cost and what expenses it covers?

At the beginning of the mediation, the corresponding quotation must be presented, which must include the mediator’s fees, including the number sessions and an analysis of the issue, as well as the management costs of the proceedings. (see fees section)

To these costs, if any, the costs in respect of resources or third parties requested by the parties by mutual agreement are added. The total cost, much lower than arbitration and court proceedings, is divided equally between the parties, unless otherwise agreed by the parties themselves.

When do I have to pay?

The most common is a provision of funds, proceeding to a final payment. Only in the event that services not requested in the initial quotation are requested, an additional provision of funds is requested which is confirmed by the parties.

There are two types of proceeding, although the structure of both is the same:

• An ordinary or traditional arbitration
• A summary arbitration

The traditional proceeding can be said to last 2 to 3 months on average and the sessions are accrued. Although this depends on the parties and therefore on their availability as well as the issues to be resolved.

The summary proceeding, although it complies with the same formalities and guarantees, is expected to take place in a single morning or afternoon, lasting 4 hours. It is intended for less complex disputes (both in subject matter and the position of the parties). However, it allows, in the event that it is not resolved by this summary procedure, to adapt it to the ordinary procedure.

It also takes into account that mediations can be carried out by a single mediator or in co-mediation, depending on the complexity of the dispute or disputes and the number of parties. The most important thing is to provide the right resources for each case.

Mediators are designated by the Select Committee on the basis of a technical proposal which is prepared after speaking with the parties or the parties’ lawyers in an initial contact in which they are asked, among others, about aspects they consider relevant to take into account.

The Chamber’s facilities are established as a neutral space to carry out proceedings (very important characteristic in mediation)

The conversion of agreements into an executable instrument. Formalities (during proceedings and afterwards):

The agreements reached in the mediation process are binding on the parties. They can obtain executive effectiveness by executing them as a public deed or, in the case of being part of judicial proceedings, confirmation by the judge.

Furthermore, the enforcement thereof can be requested before the judge who approved the agreement in those obtained once the judicial proceedings have begun, and before the court of first instance of the place where the agreement was signed.

Agreements with cross-border enforcement and the recognition thereof:

In the case of agreements that must be enforced in another State, the execution as a public deed is requested and the fulfilment of the requirements demanded by the international agreements in which Spain is party and the European Union regulations.

It should be noted that, although there are different agreements within one single mediation, there is nothing to prevent some from being executed as a public deed and others not. There may even be agreements that the parties do not wish to disclose in any other way than as they were recorded in the final document.

It has many advantages and reduces time and costs in resolving disputes or potential disputes which improves the competitiveness of companies, but above all, the quality of SOLUTIONS and agreements goes far beyond what any other system can offer because it takes into account all the intrinsic elements of the dispute itself, such as the characteristics of the parties and the environment in which it has to be implemented.

Because it adapts and approaches the natural way of relating to companies:

• Companies negotiate and interact with other companies. To best serve their interests.
• Companies spend a lot of time building lasting relationships that offer them stability, security and trust.
• Companies adapt relationships over time and avoiding tensions.
• Companies manage expectations and risks and therefore seek the best possible solution. + trust (transparency and collaboration) = – cost
• It turns what at first is or can be a difficulty into a challenge.
• When it is companies that have the ability to create, they have the power to create differently. If organisations and people are able to alter genetics, to explore space,… they must be able to build good solutions and solid agreements.