1. MEDIATION RULES
Adapted to the Royal Decree Law 5/2012 of 5 March,
on mediation in civil and commercial matters
In force since 8 March 2012

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3. MEDIATION RULES
INDEX
RULES
Article 1. Rules ..................................................................................... 4
Artículo 2: Article 2. Scope of application of the Rules ................... 4
MEDIATION PROCEEDINGS
Article 3. Request for Commencement ............................................. 5
Article 4. Commencement of the Mediation .................................... 5
Article 5. Notice to other parties ....................................................... 6
Article 6: Appointment of the mediator ............................................ 6
Article 7. Representation of the parties ............................................ 8
Article 8. Mediation proceedings. Principles .................................... 8
Article 9. Briefings. Commencement minutes .................................. 9
Article 10. Mediation proceedings ..................................................... 9
Article 11. Confidentiality ................................................................... 11
Article 12. Confidentiality of documents .......................................... 12
Article 13. Confidentiality of opinions, agreements and
admissions ............................................................................................ 12
Article 14. Termination of the Mediation .......................................... 13
Article 15. Exclusive mediator ............................................................ 15
Article 16. Administration fee of the Mediation Service of AEADE 15
Article 17. Fees of the mediator ......................................................... 16
Article 18. Deposits ............................................................................. 16
Article 19. Costs ................................................................................... 17
Article 20. Liability ............................................................................... 17
Article 21. Suspension of prescriptions ............................................. 17
SCALE OF CHARGES AND FEES
Administration fee ............................................................................... 18
Mediator fees ....................................................................................... 19
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Article 1. Rules
For the purposes of these Rules:
- Mediation shall be construed to mean a way of settling disputes,
regardless of their denomination, in which two or more parties
attempt to voluntarily reach an agreement with the intervention of a
mediator.
- The term “Mediation Agreement” shall be construed to mean any
agreement reached by the parties to submit to mediation all or certain
disputes which have arisen or may arise between them.
- A Mediation Agreement may take the form of a clause in a contract
or a separate contract.
- The term “mediator” includes a sole mediator or all mediators where
more than one is appointed.
- The terms “AEADE” or “the Association” shall be construed to mean
the European Association of Arbitration. The term “Service” shall
refer to the Mediation Service of AEADE.
- Words used in the singular shall include the plural and vice versa, as
the context may require.
Article 2. Scope of application of the Rules
When a Mediation Agreement provides for mediation under the AEADE
Mediation Rules, the present rules shall be considered part of that
agreement. Unless otherwise agreed by the parties, these Rules as in
effect on the date of the commencement of the mediation shall apply.
Parties wishing to submit to mediation any dispute arising from a legal
relationship in contract or tort, either civil, mercantile, commercial or
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otherwise, both national and international, provided that the parties are
entitled to decide on the subject matter of such dispute, may voluntarily
submit themselves to such proceedings before AEADE in accordance
with the Rules herein.
MEDIATION PROCEEDINGS
Article 3. Request for Commencement
a) If one of the parties to a Mediation Agreement wishes to urge the
commencement of the proceedings, such party shall submit a written
request to the Mediation Service of AEADE.
b) The natural or legal persons wishing to resort to mediation will file
a joint or individual written request to the Secretariat of AEADE.
The Request for Mediation shall include or be accompanied by
i) name, address, e-mail, telephone, telex, fax or any other
communication reference of the parties to the dispute and the
representative of the party submitting the Request for Mediation;
ii) where appropriate, the written agreement in which the parties
undertake to submit any disputes to mediation, and
iii) a brief description of the nature of the dispute.
c) A Request for Mediation shall be considered a joint request when
the parties are bound by a previous agreement to submit to mediation
all or some of the disputes that have arisen or may arise between
them regarding a specific contractual relationship or tort.
The Request for Mediation shall be considered a joint request when,
even in the absence of a prior agreement signed by the parties, all of
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them declare to the AEADE’s secretariat their wish to submit themselves
to mediation to resolve their disputes.
Article 4. Commencement of the Mediation
The date of the commencement of the mediation shall be the date on
which the Request for Mediation is received by the Mediation Service
of AEADE.
Article 5. Notice to other parties
Once an unilateral Request for Mediation has been received, the
Secretariat shall inform the other party or parties, giving them a period
of seven days to express their approval or disapproval to participate in
mediation.
If all the parties accept the invitation to participate in the mediation
proceedings, they shall give notice to the Secretariat of AEADE within
the period prescribed in the preceding paragraph.
The response to the offer of mediation may be conducted by e-mail, fax,
regular or registered mail, or other written means for record keeping
purposes.
The lack of response in the said period of seven days or the negative
response given by any of the other parties shall be considered as a
disapproval of the request for mediation. The Secretariat shall give verbal
notice to both the requesting and disapproving parties about this fact.
Article 6: Appointment of the mediator
1. Unless the parties have agreed themselves on the person of the
mediator or on another procedure for appointing the mediator, the
mediator shall be appointed by the Mediation Service of AEADE after
consultation with the parties. The appointment of the mediator or
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mediators shall be conducted as follows:
2. The number of mediators shall be one, unless the parties expressly
request two.
3. In the proceedings with a sole mediator, the mediator shall be
appointed by AEADE within 10 days of receipt of acceptance to
participate in mediation.
If the parties decide to appoint two mediators, each party shall
appoint one out of three mediators proposed by AEADE or freely
choose from a list of expert mediators provided by AEADE.
The appointment of the mediators by the parties shall take place
within 10 days from the acceptance of the mediation by all the
parties.
4. The mediator shall be impartial and independent and shall conduct
the mediation neutrally and refrain from intervening if there is a
conflict of interest with the parties. The mediator shall disclose any
circumstances likely to affect their impartiality and, in any case, in the
following circumstances:
- In case of any previous or present personal, contractual,
professional or business relationship between the mediator and
any of the parties which could affect the mediation process;
- In case that the mediation proceedings may result in any
economic interest, or otherwise, to the mediator, either directly
or indirectly;
- In case that the mediator, or a member of his/her company or
organization, has previously acted as for or against one or more of
the parties under any circumstances, except for mediation.
In such cases the mediator may only accept or continue the mediation
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when total impartiality can be guaranteed and provided that the
parties give their express consent.
This obligation shall be in force throughout the entire mediation
proceedings.
5. By accepting the appointment, the prospective mediator undertakes
to spend sufficient time to allow the mediation to be conducted
quickly and efficiently.
Article 7. Representation of the parties
a) The parties may be represented or assisted in their meetings with
the mediator. The representatives of the parties shall hold a power
of attorney.
b) Following the appointment of the mediator and before the
commencement of the mediation, each party shall give notice
to the other party, the mediator and in any case the Mediation
Service of AEADE, about the names and addresses of the authorized
representatives and the names and positions of the individuals
attending meetings with the mediator on behalf of such party.
Article 8. Mediation proceedings. Principles
1. The mediation shall be conducted in the manner agreed by the
parties. If, and to the extent that, the parties have not made such
agreement, the mediator shall, in accordance with these Rules,
determine the manner in which the mediation shall be conducted.
2. Each party shall cooperate in good faith with the mediator for
the mediation to be conducted as expeditiously and effectively as
possible. During the mediation process the parties shall not bring
any court or out-of-court action related to the subject matter of the
mediation.
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3. The mediator shall be free to meet and to communicate separately
with a party on the clear understanding that information given at
such meetings and in such communications shall not be disclosed to
the other party without the express authorization of the party giving
the information.
Article 9. Briefings. Commencement minutes
1. The appointed mediator or mediation institution may summon
the parties to the briefing. The unexcused absence of any of the
parties to the briefing shall be considered a waiver of the requested
mediation.
In such briefing, the mediator shall inform the parties of the possible
causes regarding his/her career, training and experience which may
affect impartiality, as well as the characteristics, cost and organization
of the mediation proceedings and the legal consequences of the
prospective agreement.
2. If deemed appropriate, a deadline shall be set for the parties to
submit their case to the mediator, together with the documents and
other forms of evidence which will substantiate their claims.
3. At any point of the mediation process, the mediator may request
the parties additional information or additional statements which may
be accompanied by other documents and evidence which the parties
may consider necessary to be taken into account by the mediator.
Article 10. Mediation proceedings
a) The mediator shall freely conduct the mediation proceedings,
consistent with the principles of impartiality, neutrality, independence
and good faith.
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b) Participation in mediation is always voluntary. Any party or
mediator shall be free to withdraw at any time, without the need
of any approval. If in the course of the mediation proceedings, the
mediator considers that any of the parties, for any reason, cannot
govern itself or is not willing to freely participate in the proceedings,
the mediator may raise the issue with the parties and/or suspend the
mediation temporarily or permanently.
c) The mediator may terminate the mediation if any of the parties
fails to fulfill the rules set in the proceedings or in the Mediation
Agreement or if the mediator notices that any of the parties is
hindering the mediation process or acting with abuse of law.
d) Any party may at any time submit to the mediator, for consideration
by the mediator only, written information or materials which it
considers confidential. The mediator shall not disclose, without the
written consent of that party, such information or materials to the
other party.
e) If the mediator considers that any issues in dispute between the
parties are not likely to be resolved through mediation, the mediator
may propose, for consideration by the parties, the procedures or
methods he/she considers most appropriate to resolve such issues,
taking into account the circumstances of the dispute and any business
relationship between the parties in the most effective, less costly and
most productive way. The mediator may suggest in particular:
i) expert determination of one or more specific issues;
ii) arbitration;
iii) the submission of last offers of settlement by each party and,
in the absence of a settlement through mediation, the conduction
of arbitration proceedings on the basis of those last offers and
according to an arbitral procedure in which the mission of the
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arbitration tribunal is confined to determining which of the last
offers shall prevail;
iv) arbitration proceedings where the mediator acts with the
express written consent of the parties, as sole arbitrator. In the
arbitration proceedings, the arbitrator may take into account the
information received during the mediation if all parties give their
written consent.
v) any other possible way of settling disputes other than those
mentioned above and accepted by the parties.
Article 11. Confidentiality
a) Mediation will be absolutely confidential. Every person involved in
the proceedings must respect confidentiality.
b) The information and documents provided by the parties to the
mediation process shall only be subsequently disclosed to any third
party by the party which has provided it.
c) No recording of any kind shall be made of any meetings of the
parties with the mediator.
d) In case of holding individual meetings with the parties, the mediator
shall clarify in advance the limits of confidentiality regarding the
information which might be disclosed during such meetings.
e) Mediators shall not act as experts or witnesses in any court or
arbitration proceedings carried out by the parties for the same claims
submitted to mediation.
f) Each person involved in the mediation, including, in particular,
the mediator, the parties and their representatives and advisors,
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any independent experts and any other persons present during
the meetings of the parties with the mediator, shall respect the
confidentiality of the mediation and may not, unless otherwise
agreed by the parties and the mediator, use or disclose to any outside
party any information concerning, or obtained in the course of, the
mediation. Each such person shall sign an appropriate confidentiality
agreement prior to taking part in the mediation.
Article 12. Confidentiality of documents
Unless otherwise agreed by the parties, each person involved in the
mediation shall, on the termination of the mediation, return, to the
party providing it, any brief, document or other materials supplied
by a party, without retaining any copy thereof. Any notes taken by a
person concerning the meetings of the parties with the mediator shall
be destroyed on the termination of the mediation.
AEADE shall keep and guard for a period of six months a record with the
documents which do not need to be returned to the parties.
Article 13. Confidentiality of opinions, agreements and admissions
Unless otherwise agreed by the parties, the parties shall not introduce
as evidence, or in any manner whatsoever in any court or arbitration
proceeding, information about:
i) any views expressed or suggestions made by a party regarding a
possible settlement of the dispute;
ii) any admissions made by a party in the course of the mediation;
iii) any proposals made or views expressed by the mediator;
iv) the fact that a party had or had not indicated willingness to accept
any proposal for settlement made by the mediator or by the other
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party.
Article 14. Termination of the Mediation
Upon the termination of the mediation, the mediator shall send to
the Mediation Service of AEADE a notice in writing that the mediation
is terminated. The notice shall determine the termination of the
proceedings and, where appropriate, shall explain the agreements
reached in a clear and understandable way, or the termination for any
other reason. The notice shall be signed by all parties and the mediator
or mediators and one original copy shall be provided to each.
Upon the termination of the mediation, documents shall be returned
to the party which had submitted them. The Mediation Service of
AEADE shall keep and guard for a period of six months a record with the
documents which do not need to be returned to the parties.
a) The Mediation Service of AEADE shall keep the confidentiality of
the notification issued by the mediator and shall not disclose the
existence or the result of the mediation without the written consent
of the parties.
b) However, the Mediation Service of AEADE may include information
regarding mediation in the global statistics about the activity of the
association, provided that such information does not disclose the
identity of the parties or the particular circumstances of the dispute.
c) The mediation proceedings shall be terminated by any of the
following circumstances:
I)By the signing by the parties of an agreement binding them from
the time of signature or from the time the parties entered into the
agreement.
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II)By a written certificate in which the mediator shall state the
failure of the mediation.
III) By notice to the Mediator by any of the parties withdrawing
from further mediation proceedings.
IV) By decision of the mediator who may terminate the mediation
proceedings, following the consultations with the parties, on any
of the following assumptions:
a) Lack of cooperation by either party.
b) Failure to fulfil mediation rules previously set.
c) Unexcused absence of either party.
d) Unlikelihood of the proceedings to achieve the intended
purposes.
e) The mediator detects that the conflict should be approached
from a different form of intervention or treatment.
f) The mediator considers that the agreement to be reached is
illegal or unenforceable.
g) The mediator considers that he or she is no longer able
to guarantee the impartiality needed to continue with the
proceedings.
h) The mediator considers that either party is unable to decide
and/or assume the commitments.
i) Any other circumstance found by the mediator contravening
the principles of mediation.
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In such circumstances, the mediator shall discuss with the parties the
possibility to modify or solve the impediments. Otherwise, the parties
may be offered to continue with the proceedings with a different
mediator or may be suggested to choose a different professional service
deemed appropriate to the circumstances in accordance with article
10.e) of these Rules.
Article 15. Exclusive mediator
Unless required by a court of law or authorized in writing by the parties,
the mediator shall not act in any capacity whatsoever, otherwise than
as a mediator, in any pending or future proceedings, whether judicial,
arbitral or otherwise, relating to the subject matter of the dispute.
Article 16. Administration fee of the Mediation Service of AEADE
The Request for Mediation shall be subject to the payment of the
administration fee to the Mediation Service of AEADE according to the
following rules:
a) The amount of the registration fee shall be determined in accordance
with the Schedule of Fees of the Mediation Service of AEADE in force
at the date of the Request for Mediation.
b) The administration fee shall not be refundable.
c) No action shall be taken by the Mediation Service of AEADE on a
Request for Mediation until the administration fee has been paid.
d) If the party who has filed a Request for Mediation fails, within 15
days after the second reminder in writing from the Mediation Service
of AEADE, to pay the administration fee, it shall be deemed to have
withdrawn its Request for Mediation.
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Article 17. Fees of the mediator
The fees of the mediator shall be subject to the following rules:
a) The amount and currency of the fees of the mediator and the
modalities and timing of their payment shall be fixed by the Mediation
Service of AEADE, in accordance with the present article and after
consultation with the mediator and the parties.
b) Unless otherwise agreed by the parties and the mediator, the
amount of the fees shall be calculated on the basis of the hourly rates,
or day rates where applicable, set out in the schedule of fees of the
mediator applicable on the date of the Request for Mediation, taking
into account the amount in dispute, the complexity of the subject
matter of the dispute and any other relevant circumstances of the
case.
Article 18. Deposits
Deposits shall be requested on the following assumptions:
a) At the time of the appointment of the mediator, the Mediation
Service of AEADE may require each party to deposit an equal amount
as an advance for the costs of the mediation, including, in particular, the
estimated fees of the mediator and the other expenses of the mediation.
The amount of the deposit shall be determined by the Mediation Service
of AEADE.
b) The Mediation Service of AEADE may require the parties to make
supplementary deposits.
c) If a party fails, within 15 days after the second reminder in writing
from the Mediation Service of AEADE, to pay the required deposit, the
mediation shall be deemed to be terminated. The Mediation Service of
AEADE shall give written notice to the parties and the mediator stating
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the date of termination. However, if either party fails to pay the deposit,
the mediator or official body shall inform the other parties before
declaring the termination in case such party is interested in depositing
the sum within the set period of time.
d) After the mediation, the Mediation Service AEADE shall provide the
parties with an statement of the deposits made and shall return any
unexpended balance or require the payment of any sum due to the
parties.
Article 19. Costs
Unless otherwise agreed by the parties, the administration fee, the
fees of the mediator and all other expenses of mediation including, in
particular, the required travel expenses of the mediator and any expenses
incurred to obtain expert advice shall be borne equally by the parties.
Article 20. Liability
The acceptance of the appointment binds the mediators to faithfully carry
out the mediation. The failure to fulfil such obligation shall result in the
mediator being liable for damages caused by him/her due to bad faith,
recklessness or willful misconduct. The affected party shall be entitled to
take direct action against the mediator and AEADE notwithstanding any
reimbursement actions pending on the mediators.
Article 21. Suspension of prescriptions
The commencement of mediation shall suspend the prescription or
expiration of legal actions from the date of Request for Mediation until
the date of signature of the Mediation Agreement, or failing that, until
the date of the notification causing the termination of mediation in any
of the circumstances provided in Article 14 of these rules.
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SCALE OF CHARGES AND FEES
Administration fee
1. The amount of the administration fee shall be 0,10% of the value of
the mediation, subject to a maximum administration fee of €10,000.
As an example, the following registration fees shall be paid when the
value of mediation reaches the following amounts (in EURO):
Value of Mediation Tasa de registro
registration fee
50.000 500
100.000 1.000
500.000 5.000
a partir de 1.000.000 10.000
(Amounts expressed in EURO)
2. The value of the mediation is determined by the total value of the
amounts claimed.
3. Where the Request for Mediation does not indicate any claims
for a monetary amount or the dispute concerns issues that are not
quantifiable in monetary amounts, an administration fee of €350 shall
be payable, subject to adjustment. The adjustment shall be made by
according to the circumstances of the case and after consultation
with the parties and the mediator.
4. For the purposes of calculating the administration fee, any monetary
amounts in dispute expressed in a currency other than EURO shall
be converted into EURO on the basis of the official United Nations
exchange rate prevailing on the date of submission of the Request for
Mediation.
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Mediator fees
Indicative fees per hour and day:
Minimum Maximun
Per hour 150 500
Per day 500 3.500
(Amounts expressed in EURO)
Note: The Mediation Service of AEADE may retain and collect up to 15%
of its fees from the mediator for the service provided to the mediator.
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20. AEADE
European Association of Arbitration, AEADE
Campoamor, 18 3º 28004 Madrid
Tel.: (+34) 914 322 800
www.aeade.org
comunicacion@aeade.org
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