On March 6, the Royal Decree 5 / 2012 which introduces mediation in civil and commercial matters.
This norm incorporates Directive 2008/52 into Spanish law, which was already attempted in the previous legislature, although the project did not reach parliamentary debate. The norm now approved is much more liberal or less interventionist than the previous one. As in the previous project, it goes beyond the pure implementation of the Directive, to integrate mediation within Spanish civil and commercial procedures. However, the obligation to attend mediation established in the previous project for certain cases has disappeared, leaving mediation as a voluntary process. Likewise, the procedure has been made significantly more flexible, as have the conditions that both mediators and mediation institutions must meet. It is noted that the Government wants to encourage the participation of civil society entities such as Chambers of Commerce and others similar, to encourage conflict resolution through mediation.
For brand owners this is good news. The Civil Procedure Law is modified to integrate mediation as a conflict resolution mechanism, giving the judge powers to invite the parties to resolve a dispute by this means, when in his opinion there are possibilities of doing so. In this way, civil procedures for infringement as well as those for nullity or expiration can be resolved in a much shorter period of time. Furthermore, the mediation agreement reached is presented to the Court handling the lawsuit, being incorporated into the records and closed. But the mediation agreement is considered an enforceable title and this is important if a breach occurs. In fact, if this occurs, it is not necessary to restart the procedure but it is enough to request its immediate execution before the same Court that approved it. In terms of trademarks, it will be important that the agreement reflects clear, concrete obligations that do not require the action of the non-compliant party. In this way, the Court will be able to proceed with rapid and effective execution even if the non-compliant party opposes it.
