BUSINESS MEDIATION

Mediation is understood as a means of resolving disputes, whatever their denomination, in which two or more parties voluntarily endeavour to reach an agreement themselves with the help of a mediator.

The Official Chamber of Commerce, Industry and Navigation of Barcelona is a mediation institution recognised by Law 14/2002, of 27 June, on the Official Chambers of Commerce, Industry and Navigation of Catalonia and its General Council and Law 15/2009, of 22 July, on Mediation in the Field of Private Law of the Parliament of Catalonia, by Law 3/1993, of 22 March, the basic statute of the Official Chambers of Commerce, Industry and Navigation and by Law 5/2012, of 6 July, on Mediation in Civil and Commercial Matters.

The Official Chamber of Commerce, Industry and Navigation of Barcelona exercises, among others, performs functions of organising and administering alternative dispute resolution systems through the Consulate of the Sea and, in particular, through its governing body, the Council of Twenty.

The Council of Twenty is governed by the Consulate of the Sea Regulations approved by the Official Barcelona Chamber of Commerce, Industry and Navigation.

These regulations shall apply to mediation procedures administered by the Consulate of the Sea that are submitted to it.

This regulation shall apply to mediations in civil and commercial matters, including cross-border cases, provided that they do not affect rights or obligations not available to the parties in accordance with applicable law.

By way of example but without limitation, parties may be natural and legal persons who carry out a business activity or who hold rights deriving from their status as a partner or other positions empowered to manage the company and entities referred to in section 4 of article 35 of the General Tax Law, when they are owners of a business activity and are duly represented, as well as groups of economic interest and temporary joint ventures, when they are in a situation of disagreement, dispute or controversy in the scope of their activities or business, professional or patrimonial relationships.

The parties are obliged to:

1. Sign the initial minutes in the organisational hearing with the confidentiality agreement, the final minutes and, if applicable, the mediation agreement.
2. Attend mediation sessions in person or be represented by people who have sufficient decision-making capacity and power to reach agreements.
3. Pay the cost of the proceedings in accordance with the fees approved by the Consulate of the Sea.

The parties may attend the sessions accompanied by their lawyers or other advisers. In this case, they must notify the Consulate of the Sea sufficiently in advance to ensure a level playing field for the other party.

The parties may be accompanied by experts, whose role shall be restricted to technical advice on the matter and aspects requested by the parties.

The Consulate of the Sea shall designate a neutral expert in mediation for each proceeding. The mediator shall remain neutral, independent, objective and impartial throughout the mediation. Acceptance of mediation entails the obligation to apply and comply with these regulations.

When the characteristics of the matter so advise, the Consulate of the Sea or the parties by mutual agreement may designate more than one mediator, acting in a coordinated manner.

The mediator must notify the Consulate of the Sea, within a maximum period of three days, as to whether or not he/she accepts the role, stating the cause. In the event that he/she has not done so within the aforementioned period, the Consulate of the Sea shall notify the parties and a new one shall be designated.

The mediator shall comply with the training conditions, full exercise of his/her civil rights and the corresponding civil liability insurance or equivalent guarantee, and his/her performance shall be in accordance with the provisions of the mediation regulations in civil and commercial matters and these regulations.

The functions of the mediator shall be to:

– Assess whether the dispute is a matter that the parties can deal with.

– Convene the parties for each session in advance.

– Oversee the sessions and manage the proceedings.

– Promote the creation of positive conditions to redirect a dispute to a process of dialogue.

– Facilitate and foster communication between the parties and the generation of options.

– Facilitate the presentation of their positions and communication in an equal and balanced manner that makes it possible to reach a satisfactory agreement.

– Assist in all aspects that allow the parties to settle their dispute by mutual agreement.

– Notify all parties when meetings are to be held that take place separately with either party, without prejudice to the confidentiality of what has been discussed.

– Not to communicate or distribute the information or documentation that the party has provided, except when express authorisation has been obtained from the latter.

– Ensure that the parties obtain sufficient advice and information throughout the process. (Article 13.1 of Law 5/2012)

– Notify the parties and the Consulate of the Sea of their refusal to partake in the mediation with the obligation to provide them with the corresponding statement stating the reasons for the refusal.

– Abstain from the moment in which their impartiality may be affected or generate a conflict of interest and, in any case, when:

– There is a personal, contractual or business relationship with one of the parties.

– There is any direct or indirect interest in the outcome of the mediation.

– When the mediator or a member of his/her company or organisation has previously acted in favour of one or more of the parties in any circumstance, with the exception of mediation.

– Accept and continue the mediation if he/she can guarantee his/her impartiality when some of the grounds that are the cause of abstention apply, provided that the parties consent and expressly state this.

– Notify the parties and the Consulate of the Sea of his/her abstention or recusal within 24 hours of the occurrence thereof.

– Notify the Consulate as soon as each of the phases has been completed and submit the information and documentation corresponding to the mediation that must be kept in the case file, as well as the initial, final Minutes and agreements reached through the mediation proceedings.

The Consulate of the Sea’s mediation procedure is characterised by the following principles:

1. Voluntary nature: Mediation is voluntary. The previously informed parties make the voluntary decision to initiate the proceedings.
2. Free disposal of the proceedings: No one is obliged to remain in the mediation proceedings or to conclude an agreement. Therefore, once the mediation has got underway, if a party does not wish to continue, it may interrupt its participation and terminate the proceedings. In this case, it is suffice to communicate to the mediator, in a verifiable manner and by any of the means permitted by our legal system, without the need to explain the reasons.
3. Confidentiality: all parties participating in the proceedings are obliged by the duty of confidentiality. In the same way, the documentation used in the mediation shall also be confidential as long as it is deemed to be of this nature.

In order to ensure confidentiality:

– At the end of the proceedings, the documents that have been provided shall be returned to each party.

– Documents that do not have to be returned to the parties, if the mediator deems it necessary, shall be included in the case file that must be preserved and kept by the Consulate of the Sea once the proceedings have come to an end, for a minimum period of four months.

– The Consulate of the Sea shall not disclose the existence or the result of the proceedings without the authorisation of the parties. However, the Consulate may include information on the proceeding in the overall statistics of its activities, provided that the information does not reveal the identity of the parties or the specific details of the dispute.

– The confidentiality of the mediation and its content does not allow the mediators or those involved in the mediation procedure to be forced to declare or provide documentation in judicial or arbitration proceedings on the information derived from a mediation proceeding, or related to it, except when:

– The parties expressly waive this obligation in writing.

– By means of a motivated judicial resolution, if requested by judges of criminal jurisdictional.

4. Neutrality: The mediator’ shall remain neutral throughout the proceedings, with no interest in its outcome.
5. Impartiality: The mediator shall guarantee his/her independence from the parties, and may not act to the detriment or in the interest of any of them.
6. Equality of the parties: the parties shall participate having equal opportunities and the mediator shall endeavour to find the right balance between their positions and ensuring respect for the views expressed by each party is maintained.
7. Flexibility: Without prejudice to adhering to the principles set forth in these regulations, mediation shall be organised in such manner as the parties and the mediator deem fit, in accordance with the parties’ needs and the characteristics of the dispute.

The Consulate of the Sea shall administer the proceedings of the Chamber of Commerce’s mediation service. It shall have the necessary human and technical resources available in order to correctly provide the service. The Chamber staff deemed to have sufficient training and that meet the relevant requirements may be part of the Register of Mediators of the General Council of Chambers and act as mediators in the mediations submitted to the Chamber. They may also become part of the General Council of the Chamber’s Technical Mediation Group.

I. Request

The proceeding may be initiated by submitting an application with the form provided by the Chamber, available at the Chamber of Commerce’s offices and on its mediation service website: www.consolatdemar.org, which must be submitted duly filled out together with the relevant documentation and which shall be submitted by email to mediacioempresarial@consolatdemar.org or to the Chamber’s Register addressed to the “Mediation Service of the Barcelona Chamber of Commerce or Consulate of the Sea”. All fields in the form marked as required must be filled in.

Proof of payment of the corresponding fee established to open the case must also be attached to the application. If, within five working days, it is not received, the application shall be deemed not to have been submitted correctly.

In the case of mediation arising from courts, tribunals or other public or private entities with which the Chamber has an agreement, the content of those shall be taken into account, but in any case, if the parties are not beneficiaries of legal aid, they shall have to pay the amounts established.

II. Acceptance

The Consulate of the Sea, through its mediation service, shall examine and check whether the requirements for submitting to the mediation procedure are met.

If so, and if both parties agree, they shall be convened for the Information & Assessment Meeting. In the event that it has been requested by only one of the parties, the Consulate of the Sea shall communicate this to the other party, by an appropriate means to prove receipt of the request for mediation. The Consulate of the Sea shall communicate by telephone or online with the party to briefly inform it of the procedure and, in any case, to convene it to an Information & Assessment Meeting. If the party agrees, the parties shall be convened to the corresponding Information & Assessment Meeting. Acceptance of the mediation must be communicated in writing in the same way as the applicant, also accompanying proof of payment of the fee for opening the case.

If the party does not confirm its willingness to attend the Information & Assessment Meeting or mediation within a maximum of 15 business days from the communication of the other party’s request, it shall be understood that he/she does not wish to accept it.

This shall be communicated, within a maximum period of five days, to the other party and the file shall be closed, either indicating that the party has not attended the Information & Assessment Meeting or has stated that it does not wish to attend or that it has not agreed to submit to mediation.

III. Designation of the mediator

The Consulate of the Sea shall designate the person or persons that act as mediators from among those included in the General Council of Chambers of Catalonia’s Register of Mediators in accordance with the following objective criteria and in the order in which they are expressed: Those designated by the parties; those that have expertise in more specialisations related to the case identified by the parties and language proficiency requirements as well as those that charge lower fees per session. This designation shall be communicated to the parties so that they may exercise their right to reasoned rejection thereof. In the event of a recusal, the parties and the mediator(s) must notify the Consulate of the Sea of this recusal in order for a new mediator to be designated.

In order to facilitate the proposal, the Consulate, at the request of the parties, may provide them with a list of three people who meet the requirements deemed necessary by the parties. The parties may notify the Consulate of their choice or provide each with an order of preference so that the Consulate can objectively choose from among those proposed.

After two recusals in which grounds of incompatibility or abstention do not apply, the Consulate of the Sea reserves the right to close the mediation case.

IV. Information & Assessment Meeting

Upon receipt of the request, the Consulate of the Sea shall convene the parties to hold the Information & Assessment Meeting. This Information & Assessment Meeting may be held individually or jointly, at the discretion of the Consulate of the Sea or the mediator.

The mediator shall report any causes that may affect his/her impartiality, his/her profession, training and experience. He/she shall also explain the principles of the proceedings and what the mediation sessions entail, the benefits of reaching an agreement to settle the dispute, the functions of the mediator, the power to terminate the mediation at any time, the consequences of the agreement, the period for signing the Articles of Association, as well as the possible effects and incidents with respect to the judicial proceeding, whether initiated or not (suspension or refusal).

In the event of unjustified absence from any of the parties at the Information & Assessment Meeting, it shall be understood that they have withdrawn from the requested mediation. The information of the party or parties who did not attend the Information & Assessment Meeting is not confidential.

If the parties agree to initiate the mediation and the mediator deems the matter to be one that can be mediated, he/she shall convene the parties or initiate the organisational hearing.

The mediator, within a maximum period of five days, shall submit to the Consulate of the Sea the proof that the Information & Assessment Meeting has been carried out and the parties agree or refuse to submit to mediation so that it can be included in the corresponding case file.

In the event of referral by judges and courts, the Consulate of the Sea shall inform them of whether or not they have attended the Information & Assessment Meeting.

V. Organisational hearing

In order to carry out the organisational hearing, the fees must have been paid, which shall correspond to the approximate estimate of the amount of the mediator’s fees according to the approach taken and accepted by the parties and the costs of the Consulate’s mediation service.

In any case, the organisational hearing must take place (or be convened) within a maximum deadline of 20 working days from when the Information & Assessment Meeting is held. Otherwise, the case shall be closed.

The payment shall be to the Consulate of the Sea prior to the organisational hearing or at the same time. If the payment is not made by either of the parties, it shall be understood that they do not want to participate in the mediation, unless the other party pays the full amount. Otherwise, the case shall be closed.

The mediation proceedings shall commence with the organisational hearing in which the parties shall sign the initial Minutes, which shall express the willingness of the parties to participate and the acceptance of the duty of confidentiality and shall expressly state:

– The identification of the parties.

– The designation of the Consulate of the Sea as a mediation institution.

– The subject matter of the dispute that is undergoing mediation.

– The tentative schedule of sessions and the planned duration thereof, without prejudice to possibly being modified.

– Information on the cost of the mediation or the bases of how this is established, with a separate indication of the mediator’s fees and other possible expenses. – The declaration of voluntary acceptance by the parties to the mediation and that they assume the obligations arising therefrom.

– The venue and the language the proceedings are to be held in.

The initial Minutes shall also be signed by the mediator and, where applicable, by the persons accompanying the parties who must be present throughout the proceedings.

Persons who are not parties to attend any of the mediation sessions shall sign the corresponding confidentiality agreement in order to safeguard the principles and security of the proceedings.

Due to the commitment of confidentiality, the parties and third parties involved undertake not to use under any circumstances:

– The points of view that the parties express during the sessions in view of the possible resolution of the conflict.

– Documents, reports or statements made or provided by the parties during the sessions and are confidential, understood as such, those that only the parties can provide and are not accessible in any other way, unless the party providing this information expressly states or authorises in writing that they are not to be treated as confidential.

– Any acceptance or admission of the parties in the course of individual or joint sessions.

– Oral or written proposals made in the course of mediation.

– The fact that one or the other party has been willing to accept a proposal. The mediator shall submit, within a maximum period of five days, the initial Minutes to the Consulate of the Sea as soon as it is complete and signed by the parties and by themselves, in order for it to be included in the corresponding case file.

VI. Mediation sessions

The sessions shall consist of joint or individual meetings with the parties and shall last approximately ninety minutes, unless it is agreed by the parties and the mediator to carry out the mediation under temporary criteria or different to that of sessions or which may be held on the same or subsequent days.

In cases where it is required and all parties express their consent, an expert may be appointed, the cost of which shall be borne by the parties, and whose role shall be limited exclusively to offering technical advice on the aspects required by the parties.

The mediator shall agree on the successive sessions in agreement with the parties.

The mediation shall last for as little time as possible and an attempt shall be made to carry it out in as few sessions as possible.

VII. Closure of mediation

Mediation may be concluded with full or partial agreement or without reaching any agreement at all.

Mediation shall also be concluded in the following cases:

– When the period initially set aside by the parties to carry out the mediation proceedings, without the parties having reached any agreement, except when the parties agree to extend the proceedings. In this case, the parties must notify the mediator and the latter must inform the Consulate of the Sea, within a maximum period of five days.

– By express or tacit resignation of either of the parties.

– By resignation of the mediator if, according to his/her professional judgment, the dispute cannot be resolved through mediation.

The mediator’s refusal to continue the proceedings or the parties’ refusal to do so shall only result in the termination of the proceedings when a new mediator is not designated.

The mediator shall draw up the final report accrediting the number of sessions or duration and other fundamental aspects.

The Final Minutes shall record the identity of the parties, the attendees, the partial or total agreements or the cause of termination in a clear and comprehensible manner, without referring to any briefs, facts, comments or positions appeared in the course of the sessions, in such a way that the duty of confidentiality is respected.

The Minutes shall be signed by all parties and an original copy shall be given to each of them and to the mediator who must submit it to the Consulate of the Sea within a maximum period of five days, together with the documentation that is to be kept in the case file. They shall also be signed by the mediator and the people who have appeared accompanying the parties in the course of the proceedings and are present upon formalisation thereof.

The agreement shall be drafted respecting the provisions of article 23 of Law 5/2012, of 6 July, on mediation in Civil and Commercial Matters, and respecting the content of the agreements contained in the Final Minutes. They shall be drafted legally by the parties and may not include more agreements than those contained in the Final Minutes. The parties shall sign the agreement and must deliver it to the mediator within a maximum period of one month from the date on which the Final Minutes are signed so that he/she can verify whether it corresponds to the content contained in the Final Minutes. The mediator must submit it to the Consulate of the Sea within a maximum period of five days from the time it was issued.

When the agreement has been reached in a mediation conducted after judicial proceedings have been initiated, the parties may request the approval of the court or tribunal in accordance with the provisions of the Law of Civil Procedure.

In the case of referral by judges and courts, the Consulate of the Sea shall inform them that the mediation has come to an end and whether there has been a partial or total agreement, or no agreement at all.

The mediator shall inform the parties of the binding nature of the agreement reached and may request it be recorded in a public document in order to make it an enforceable instrument.

To save time, a summary procedure is established, which reduces the normal deadlines, while maintaining the essential characteristics of the Mediation Service’s mediation proceedings. Unless the parties agree otherwise, this mediation proceeding may be applied to all mediations submitted to the Consulate of the Sea.

For cases that, as their object of mediation, only relate to claims of an amount equal to or less than €6,000; they shall be carried out preferably online, unless this method is deemed to be unsuitable by any of the parties. The use of electronic resources must safeguard the identity of the parties involved and respect for the principles of medication provided for by law.

The request for mediation, formalised through the website HYPERLINK www.consolatdemar.org, proof of payment of the corresponding fee to open the case, shall be submitted to the Consulate of the Sea via email at the following address: mediacióabreujada@consolatdemar.org The request may be accompanied by an agreement proposal.

The Consulate of the Sea shall pass it on to the other party, granting it a period of 7 working days from the date on which the request was made so that it can submit its response in the same way. If a response is not received within this period, it shall be understood that the party does not wish to accept the offer of mediation. The Consulate of the Sea shall designate the mediator or mediators in accordance with the provisions of these regulations.

Although it is a procedure that is preferably carried by electronic means, this does not prevent the Consulate of the Sea from considering conducting face-to-face mediation sessions, despite following the deadlines for this summary procedure and also complying with the formalities and requirements set forth in this regulation.

This regulation shall apply to anything not set forth in this summary proceeding.

The mediator shall inform the parties of the content of the Information & Assessment Meeting and, in the event of acceptance of the offer of mediation, the Minutes of the organisational hearing shall be drawn up.

Subsequently, it shall communicate, by e-mail or any other means, the proposal from the requesting party to the other party and the response received from the applicant, which must be done within 7 days from acceptance of the offer of mediation.

Within a maximum period of 15 working days after the mediation proceedings have come to an end, the mediator shall draw up the Final Minutes in which he/she shall determine the conclusion of the procedure and, where applicable, of the agreements reached in a clear and comprehensible manner or of the termination of mediation for any other cause.

The parties shall pay the fees, costs and expenses arising from the mediation which they shall be duly informed of prior to commencement of the proceedings. The amount shall be divided in equal parts between the parties, unless the parties agree otherwise or one of them decides to take on a higher share than the share corresponding to it.

The parties must pay the fee for opening the case upon submitting the application and acceptance of the mediation, and shall make an initial payment corresponding to the mediator fees. They shall also make the corresponding provisions of successive payments that are requested when the previous ones are exhausted. These payments shall be made within five days of the parties being notified by the Consulate of the Sea or the mediator of the need to make the corresponding payment.

The fees set forth in these regulations are the minimum and unchangeable amount to be paid by the parties.

The fees shall be approved by the competent body of the Chamber of Commerce or the body or person to whom this is delegated.

The deadlines established in these regulations shall start being counted from the day following the day on which the communication was made to convene the Information & Assessment Meeting that shall be calculated for the purposes of determining the due date, which is also included in the deadline. The date on which the Consulate of the Sea receives any brief or communication from the parties shall be the one that determines the fulfilment of the deadline that proceeds in each case. In order for the briefs and communications to produce the corresponding effects in the calculation of the deadline, they must be sufficient in form, content and comply with requirements.

The established deadlines shall be calculated in business days. If the last day of the period is a public holiday or a non-business day in the place where the communication is received, it shall be deemed extended until the next business day.

The month of August shall be deemed non-business for all purposes, except by agreement of the parties, the mediator and the Consulate of the Sea.

The Consulate of the Sea mediations shall be administered by mediators registered in the General Council of Chambers of Commerce of Catalonia’s Register of Mediators.

Mediators who fail to comply with the obligations arising from the law and these regulations may be warned by the Consulate of the Sea and their registration in the Register of Mediators may be suspended, without prejudice to the claim for liability for damages that non-compliance has caused or could have caused both the parties, third parties or the Consulate.

The mediators shall use the forms provided by the Consulate of the Sea in accordance with what is established thereby and the service’s instructions.

Mediators shall conduct mediation in the Chamber’s premises and may only take it outside the Chamber when expressly authorised by the Chamber.

The mediators shall inform the Consulate of the Sea and shall maintain a fluid and transparent communication to guarantee the proper operation and quality of the service.

The Technical Mediation Group of the General Council of the Chambers of Catalonia is entrusted with coordinating the activity of the different Chambers, monitoring the activities of the Business Mediation Services of the Catalan Chambers, proposing improvements and interpreting these regulations.

The Technical Group shall be composed of those responsible for the Chamber of Commerce’s mediation services, the Secretary of the Consulate of the Sea, the Chair of the General Council of Chambers, and those appointed for this purpose by the Plenary Session of the General Council of Chambers. Unless otherwise appointed by the Plenary, the Technical Group shall be chaired by the Chair of the General Council of Chambers.

First additional provision

The fees established in these regulations shall be updated automatically with the annual CPI, without prejudice to the modification that may be approved at any time by the Plenary Session of the General Council of Chambers of Commerce of Catalonia. The fees of the mediators shall be those recorded in the Register for each of them. The fees are included in Annex I of these regulations.

First final provision

These Regulations and their annexes shall not be definitively approved until they have been proposed by the Executive Committee of the Barcelona Chamber of Commerce and subsequently ratified by the Plenary meeting of the Chamber.

Second final provision

This Regulation and its annexes shall not enter into force until the day after their publication in an Official Gazette of the Province or Autonomous Community where the Consulate of the Sea is based or, where applicable, one day after it has been formally recorded.

Ordinary proceeding:

All expenses of the mediation procedure shall be billed to the parties by the Consulate of the Sea.

The price set for the request for mediation is €90 which includes the management of the request and communication to the other parties of the request received, as well as the designation of the mediator and the process of reviewing the origin of the application and corresponding requirements.

The Information & Assessment Meeting has a fixed price of €90 if it is done jointly and face-to-face. The amount of both items, €180, must be paid when the applicant submits the application, without prejudice to the cost being subsequently divided in half to each party.

In the Information & Assessment Meeting, a quotation shall be given for the mediation proceedings, approved by the Consulate of the Sea, which shall include the mediator’s quotation and the Consulate management costs, which may range from €300 to €500 per proceeding. This quotation shall be presented to the parties for their approval.

The Consulate of the Sea’s management fee includes: Spaces for the sessions, forms, communications to the parties and the mediators in the procedure, summonses, file, changes of designation, communications to the court, controls, issuance of certificates and documents for the parties corresponding to the Information & Assessment Meeting, initial and final organisational hearing.

The services of photocopying, courier, translations, telephone, email, Skype, video conferencing, hiring and requesting of experts, advisers, notaries, lawyers or other persons required by the parties for professional and other non-professional actions included in the management price, described above, shall be borne by the parties after accepting the corresponding quotation by agreement of the parties.

Summary proceedings:

Summary proceedings cost a total amount of €180 in Consulate of the Sea management costs for the entire proceeding provided that it is carried out in a single session lasting no longer than 4 hours.

The amount of the Consulate management costs and that of the mediation sessions may be increased by 30%, if more than two parties participate in the mediation.

The parties, in all proceedings, must have paid the required amounts before the corresponding sessions commence.