Legislating for a Culture of Agreement

On 12 March 2024, the Council of Ministers approved the Preliminary Draft Organic Law on Measures for the Efficiency of the Public Justice Service and Collective Actions for the Protection and Defence of the Rights and Interests of Consumers and Users.

Subsequently, on 22 March 2024, it was published in the Official Gazette of the Spanish Parliament as a Draft Law.

With this Bill, a further step is taken on the long road being travelled by Spanish institutions and society to implement the Culture of Agreement, a key milestone being the approval of Law 5/2012, of 6 July, on mediation in civil and commercial matters; because the Culture of Agreement is achieved, immediately, by legislating on Alternative Dispute Resolution (ADR). 

It is worth highlighting the hard work of the Ministry of Justice in promoting the dialogue-based resolution of disputes. Thus, as early as 2021, the former minister, Juan Carlos Campo, defended mediation as a means of avoiding the escalation of conflicts and the saturation of courts and tribunals. 

In the same vein, the former minister, Ms. Pilar Llop, spoke out on numerous occasions, advocating the Culture of Agreement and, specifically, mediation as an instrument to achieve it. 

However, with the change of legislature, the long-awaited Bill on procedural efficiency measures for the public justice service, which was to change the current situation in terms of ADR and, specifically, mediation, was left on the back burner. 

In fact, before the end of 2023, Royal Decree-Law 6/2023 of 19 December was passed, approving urgent measures for the implementation of the Recovery, Transformation and Resilience Plan for the public service of justice, the civil service, the local system and patronage, with the intention of making progress in the transformation of justice. 

However, the aforementioned RDL, which introduced up to 134 amendments, additions or deletions to the articles of the Civil Procedure Act, did not manage to make any significant mention of the Culture of Agreement or of mediation.

Now, with Mr. Félix Bolaños at the helm, the Ministry of the Presidency, Justice and Relations with the Courts has once again turned on the light and opened the door to mediation as ADR which, in an effective and efficient manner, contributes to reducing the well-known congestion of Spanish courts and tribunals. 

According to the Ministry itself, the future Organic Law on the Efficiency of the Public Service of Justice "resolves the existing mismatch between a structure of Justice more typical of the 19th century and the needs of the digital society in which we live today". 

The intention of the Executive is to promote the dialogued resolution of disputes through ADR, such as the aforementioned mediation, private conciliation, independent expert opinion and the confidential binding offer. It remains to be seen how these issues will be regulated.

In this sense, after the failure of the previous initiative to bear fruit, there is great expectation in the legal sector, and especially in the business sector, as to how the regulation of ADR will be implemented in the civil and commercial courts.

It is essential to comply with the information provided by the Ministry, and to give mediation a certain and real role as a method for resolving disputes, so as to limit the intervention of the courts and tribunals to those conflicts in which their action is essential. 

More specifically, it remains to be seen whether, as has been announced, the requirement of compulsory mediation prior to bringing a civil action before the courts will be introduced. 

The implementation of the Culture of Agreement requires the firm commitment of the powers of the State, especially the legislative power, and it is essential to legislate for the achievement of a healthier and more democratic country, in which the disputes that arise are resolved by the parties through dialogue and the essential help of legal agents, such as lawyers and mediators, whose role is called upon to occupy a central place in any society governed by the Culture of Agreement.