Until recently, conciliation acts were regulated by the Civil Procedure Act of 1881, originally being a condition for the admissibility of the claim, and it was with the procedural reform implemented by Law 34/1984 that it became an optional procedure.
The Civil Procedure Act of 2000 did not regulate conciliation proceedings, considering, as its explanatory statement indicated, that this was a matter of voluntary jurisdiction and should be regulated by another separate law. For this reason, it left the provisions of the 1881 Act in force until the voluntary jurisdiction law was approved, for which its eighteenth final provision provided that within one year from the entry into force of the Act, the Government would submit a draft law to the Cortes.
Regarding the regulation of conciliation acts, and before the Voluntary Jurisdiction Act was approved, Law 19/2003 of 23 December had a notable influence, which attributed to judicial secretaries the authority to carry out conciliation acts, which previously fell exclusively to the corresponding first instance judges or justices of the peace.
The regulation of conciliation acts is currently contained in articles 139 and following of the Law on Voluntary Jurisdiction, which refers to the conciliations that are processed before the Justice of the Peace or the judicial secretary of the Court of First Instance or the Commercial Court. But in this law, The Notarial Law has also been modified, regulating conciliation before a Notary, in articles 81 and following., which we are going to refer to in these lines and the Mortgage Law that allows in certain cases, conciliations before the Property or Commercial Registrars
1.-What is conciliation?
Conciliation is an attempt to resolve a conflict without having to go to court. It is one of the different Alternative Systems for Conflict Resolution, such as arbitration and mediation. The difference with arbitration is clear, since in arbitration, the parties to a conflict submit to the decision of a third party, instead of submitting to the decision of the judge.
The difference between conciliation and mediation is much more difficult to establish, to the point that some people deny that it exists, because in both cases, a third party intervenes between the parties who tries to get the parties to reach an agreement on a dispute, but without having decision-making capacity. In the event that the conciliation is carried out before a Notary, it will be the Notary who will try to get the parties to reach an agreement, but without carrying out a strictly legal activity.
2.- For what type of conflicts can notarial conciliation be used?
The Law allows for the use of notarial conciliation in order to reach an out-of-court agreement on any contractual, commercial, inheritance or family dispute, provided that it does not involve unavailable matters.
That is to say, the scope of conciliation is so broad that it is preferable to make a negative delimitation of those cases in which it cannot be used and such cases are the following:
a) Issues in which minors and persons with judicially modified capacity for the free administration of their assets are interested.
b) Issues in which the State, the Autonomous Communities and other public administrations, corporations or institutions of a similar nature are interested.
c) Trials on civil liability against judges and magistrates.
d) In general, agreements intended on matters not susceptible to transaction or compromise.
On the other hand, conciliation in the bankruptcy field is governed by bankruptcy law, in particular through out-of-court payment agreements, which in the case of non-business individuals, allow the Notary to act as bankruptcy mediator.
3.- How does notarial conciliation begin?
There is no specific rule. It may arise from a notarial request addressed by one of the parties to the other, so that they appear in person at the Notary's office, setting a day and time, or it may arise from a common initiative, in which case it would be convenient to have a request to the notary, signed by all the parties, to initiate the conciliation.
4.- Which Notary should I go to?
There is no rule on competition. But two considerations can be pointed out:
1.- Must have a professional address in a place that is easily accessible to all parties.
2.- Unlike mediation, the Notary does not have to have a specific qualification, in addition to the title of Notary. That said, it is convenient for him to be familiar with conflict resolution techniques, to be able to identify the latent conflict and for the parties to be able to understand it, because at that point, the solution will be simple.
5 What effects does the initiation of the conciliation procedure produce?
The Notarial Law does not indicate any effect, but I see no reason not to extend to notarial conciliations the effect predicted for judicial conciliations, that the admission of the request for conciliation will interrupt the prescription, both acquisitive and extinctive, in the terms and with the effects established in the law, from the moment of its presentation.
6- How is the conciliation file developed?
There is no set standard for procedure and it is up to each Notary to determine the hours, number of summons, duration of the procedure to reach an agreement... and in general all the circumstances that he considers necessary.
7- Is the intervention of a lawyer and attorney necessary?
It is not necessary, but it may be convenient, since the Notary's role is not to attribute reason to one of the parties, but to encourage them to reach an agreement, especially through a cost-benefit analysis, which would result from not reaching an agreement.
8- When does conciliation end?
At the discretion of the parties, either because they do not reach an agreement, in which case the Notary will record this; or because there is agreement between the interested parties on all or part of the object of the conciliation, in which case everything agreed upon will be recorded in detail in the public deed.
9- What if the agreement is not fulfilled?
The notarial public deed formalizing the conciliation will be endowed with executive efficacy in accordance with the terms of number 9 of section 2 of article 517 of the Civil Procedure Law. The execution will be carried out in accordance with the provisions for extrajudicial executive titles.
10- How much does conciliation cost?
To date, the notarial fees for this procedure have not been approved, but it will certainly be much more profitable than going to court.
11- Why resort to conciliation?
I think it is an exercise in responsibility for each of us to face the problems we have and find solutions. Delegating the decision to a third party is often a way of avoiding the consequences of our own actions.
On the other hand, the tendency of judges and courts to seek solutions based on arguments of material justice makes the results of lawsuits increasingly unpredictable.
In Lleida on November 9, 2015.
