1 Regulation of mediation
Family mediation is governed by Law 5/12 of 6 July 2012 on mediation in civil and commercial matters, Organic Law 1/2025 of 2 January 2025 on measures concerning the efficiency of the justice system (‘LOEP’), and the Code of Civil Procedure (‘LEC’).
Some autonomous communities which have jurisdiction in this area have also regulated mediation in a way that is quite similar to national legislation. All legislation on mediation at Autonomous Community level is available here
Mediation is included in the LOEP under the ‘appropriate means of dispute resolution’ (medios adecuados para la solución de controversias – ‘MASC’), defined as ‘any type of negotiation process, recognised in this or other national or Autonomous Community laws, to which the parties to a dispute come in good faith with the aim of finding an out-of-court solution to the dispute, either by themselves or with the intervention of a neutral third person’ (Article 2).
The MASC include mediation, conciliation or the neutral opinion of an independent expert, the confidential binding offer or any other form of negotiation process that may be conducted directly by the parties or between their lawyers or lawyers acting under their instructions and with their consent, as well as recourse to a collaborative law process (as defined in Article 3).
These rules also apply to cross-border proceedings, the definition of which is included under the Mediation Act.
Proceedings in which a party is a victim of gender-based violence or acts of sexual violence are excluded from MASC.
As a prerequisite for admissibility in family proceedings (as set forth in Article 5), prior to filing a claim, the parties must first have used an appropriate means of dispute resolution, for the same subject matter as that of the claim in question. Mediation is one of these means. This is required for applications submitted after 3 April 2025.
Exceptions are made when the service is not available or because interim protection is required: civil legal protection for fundamental rights; the adoption of precautionary measures for the protection of minors; the adoption of judicial support measures for persons with disabilities; the establishment of parentage, paternity and maternity; the placement of minors with behavioural difficulties in specialised protection facilities; entry into homes and other premises for the enforcement of child protection measures; and the restitution or return of minors in cases of international child abduction.
The following procedures are exempt: appeals against administrative decisions issued by the public authority responsible for child protection, applications for the recognition of the legal effect of ecclesiastical judgments, enforcement claims, requests for pre-action interim measures, applications for preliminary proceedings, or the initiation of non-contentious proceedings.
However, this requirement does apply within non-contentious proceedings in cases of conjugal disagreement, the administration of joint matrimonial property, and judicial intervention in disputes over the exercise of parental authority.
The failure to comply with this procedural requirement will result in the application not being allowed to proceed (see Article 403(2) LEC). Where mediation is the chosen means of dispute resolution, the admissibility requirement is considered to have been satisfied following the holding of an initial session with the mediator, provided that the subject matter of the dispute is formally recorded during that session. Certification by the mediator of the parties’ attendance at the initial session, or evidence of the commencement of mediation undertaken in good faith – even if the process is subsequently abandoned due to the withdrawal of either party – is sufficient to satisfy the admissibility requirement.
Once judicial proceedings have commenced, the court may order the unsuccessful party to pay costs if they failed, without justifiable cause, to engage in an appropriate means of dispute resolution (MASC) where such engagement was either legally mandatory or ordered by the court in a reasoned decision, even if the claim is only partially successful (see Article 394(2) LEC).
During the proceedings, the parties may be referred to an information session on mediation at first and second instance. Referral to mediation is possible in proceedings that are exempt from this admissibility requirement, such as interim measures involving minors, international child abduction and the appointment of a person responsible for implementing support measures on grounds of disability, provided that it does not lead to undue delays in the proceedings.
2 Family Mediation Procedure
Family mediation is governed, inter alia, by the principles of confidentiality, equality of the parties and mediator impartiality and neutrality.
Judicial bodies have the power to report on the mediation process and to invite or instruct the parties to attend an information session. They can also include mediation as a measure in a court decision so that this process is used as a prerequisite to initiate another procedure or dispute on the matter being dealt with. Some Autonomous Community legislation allows judicial bodies to send the parties to an information session on a mandatory basis, and provides for the possibility for the parties to include clauses for attending mediation in successive proceedings (see Article 233-6 of the Civil Code of Catalonia [Codi Civil de Cataluña]).
In order to facilitate mediation in cases involving, inter alia, cross-border family mediation, general legislation on mediation expressly allows it to be carried out by videoconference or other electronic means that allow voice or image transmission.
The mediation procedure is relatively simple, regardless of when it takes place. The parties contact the mediator of their choice, or, if they are involved in ongoing family proceedings, the mediator who has been appointed by the judge. First, an information session is held so that the parties can learn about the mediation procedure, and if both agree to the procedure, it can begin. The mediator leads the mediation sessions to enable each of the parties to set out its positions and try to reach agreement. The procedure ends with or without agreement on all or some of the issues. The result is recorded in a report and if there is an agreement, it must be submitted to the judicial authority for approval or, if there are no minor or disabled children involved, the report can be submitted to the notary, who can record it in a public deed. It can then be enforced.
If the parties reach an agreement during the course of mediation prior to judicial proceedings, or when such an agreement results from negotiation in the context of any type of MASC, the LOEP requires, in order for the agreement to be valid, that the document must state the identity and address of the parties, the place and date, the specific obligations assumed by each party, a declaration that a negotiation procedure compliant with the LOEP has been followed, and the parties’ signatures. For the agreement to be enforceable, judicial approval is required when it concerns minor children or persons with disabilities. If this is not the case, it may be formalised through a notarial deed. The minutes of the first and the final mediation sessions are required. In cases of mutual agreement, the negotiation process is usually set out in a settlement agreement attached to a joint petition, and the legal process is expedited because the parties go through a simplified procedure where both parties submit the agreement to court, which approves the agreement if it is not contrary to the law or to the interests of any minor or disabled children the couple may have (See Article 777 of the Code of Civil Procedure).
If no agreement has been reached prior to the start of court proceedings, the judge, taking into account the circumstances of the case, may agree that the parties should go to mediation and a court will refer them to a free information session. If they decide to go to mediation, the legal proceedings are not suspended, unless the parties request a stay of proceedings, and if an agreement is ultimately reached, it is approved by the court. However, if no agreement is reached or the parties did not want to use mediation, judgment is made on all those points on which the parties disagree. (See Article 770 of the Code of Civil Procedure)
The information session is free, but the mediation itself involves a cost to be borne by the parties unless they qualify for legal aid. All the information about the content and requirements for obtaining legal aid is available at:https://www.mjusticia.gob.es/es/ciudadania/tramites/asistencia-juridica-gratuita
3 Profession of family mediator and access to a mediator
The mediator must have a university degree or higher vocational training and, in addition, must have specific training to practise mediation that is given in institutions accredited for that purpose.
In order to act as a mediator, it is necessary to register in the Register of Mediators and Mediation Institutions (Registro de Mediadores e Instituciones de Mediación) at the Ministry of Justice or, where applicable, in the registers of mediators authorised by the Autonomous Communities.
At the latter level, almost all the Autonomous Communities have created a public mediation service. For information about this, simply go to the mediation section of their institutional websites where they explain in varying degrees of detail how the mediation system works and provide information on and a link to the Registry of Mediators, where such a registry exists. The websites also usually have mediation request forms that refer to the specialised agencies they have set up to carry out the mediation.
Information on Registers:
- The Register of Mediators and Mediation Institutions at national level referred to previously:
https://remediabuscador.mjusticia.gob.es/remediabuscador/RegistroMediador
- The following institutions indicated by the Ministry of Justice:
https://remediabuscador.mjusticia.gob.es/remediabuscador/RegistroInstitucion
- The Mediation Services indicated for each province by the General Council of the Judiciary (Consejo General del Poder Judicial):
- The Mediation Services set up by the different Autonomous Communities. The institutional websites of the Autonomous Communities usually contain information.
In addition to the above, more information on the family mediation procedure, the applicable legislation, the mediation services existing in the different Autonomous Communities and the relevant formalities are available on the website of the General Council of the Judiciary http://www.poderjudicial.es/cgpj/es/Temas/Mediacion