Start of main content

Mediation in COVID-19 times: A lost opportunity?

| News | Litigation

Iñigo Rodríguez-Sastre analyzes Law 5/2012, of July 6, on Mediation in Civil and Commercial Matters

As indicated in section I of the preamble to 6th July Law 5/2012, on Mediation in Civil and Commercial Matters, one of the functions of the rule of law is to guarantee the judicial protection of the legitimate interests of citizens and the European Union, as our General Council of the Judiciary points out, has long pointed out that access to justice is a fundamental right and a condition for the effectiveness of legal systems, recalling that there is no point in recognising a right if the appropriate instruments are not created to enforce it.

Among these instruments is mediation which, as an alternative dispute resolution system, constitutes, alongside the ordinary courts, a form of justice since, in the end, it seeks to find effective and definitive solutions to disputes that may arise.

It is clear that, as a result of the current state of alert and once it has been overcome, a multitude of claims will be made on the basis of the effects caused by the COVID-19, ranging from actions aimed at modifying contractual relations (above all on the basis of the rebus sic stantibus clause) to actions aimed at holding public administrations liable for the economic impact that the pandemic and the confinement may have had on private interests.

And the number of cases seems to be huge.

As some sources cite (Agustín Azparren, Confilegal, 21st April 2020), 1,865 lawsuits were filed in the Barcelona judicial district alone on 15th and 16th April 2020, once the Ministry of Justice lifted the temporary suspension on the filing of legal briefs in our courts.

This possible cascade of legal proceedings could turn our Administration of Justice into an unsustainable essential service, since, as far as we know, the flood of new legal proceedings will not be accompanied by major reinforcement measures in our courts.

In anticipation of all this, the Permanent Commission of the General Council of the Judiciary already agreed on April 20th to submit thirteen proposals to the Ministry of Justice for possible inclusion in the Royal Decree-Law regulating procedural and organizational measures to address the COVID-19 in the field of the Administration of Justice.

Precisely among them was that relating to the obligation to have attempted an out-of-court settlement (via mediation or settlement) prior to the commencement of civil actions, regardless of the amount involved, which were aimed at revising the terms of any of the contracts referred to in Royal Decree-Laws 8/2020 (among others, mortgage contracts) and 11/2020 (among others, contracts with consumers and users and contracts for the lease of main residence).

However, 28th April Royal Decree Law 16/2020, which published the procedural and organisational measures to deal with the COVID-19 in the area of the Administration of Justice, did not accept the aforementioned recommendation of the General Council of the Judiciary, so that, to date, there is no procedural impediment to filing a civil lawsuit for the review of contracts affected by the COVID-19 without first having tried mediation, on pain of the inadmissibility of such a suit.

It is a pity that such a proposal was not accepted, since it would have helped to maintain this -still precarious- sustainability of our courts of justice, helping to speed up in an extra-judicial process the matters to be resolved.

However, the fact that this proposal has not been accepted does not mean that it is not an option for those potentially affected.

In fact, we must remember that Law 5/2012, mentioned above, is still in full force (without prejudice to a preliminary draft reform of the same - in process), and offers an optimal legal framework so that any disputes are not judicialized and are resolved before a mediator who must guarantee the principles of impartiality, neutrality and confidentiality reflected in the rule, in a quick and much less costly way.

Let us hope that this will be the case as everyone will benefit.

The article can be read in Confilegal

End of main content