MEDIATION

Mediation can be defined as a voluntary structured process whereby a "mediator" facilitates communication between the parties to a coflict, enabling them to take responsability for finding a solution to their conflicto; and a Mediator can be an impartial third party, who is conducting the  mediation.

 

Respect of Hague Covention of 1980, Special Commision has commenced work on a Guide to Good Practice on the use of mediation in the context of 1980 Convention (Civil Aspects of the International Child Abduction).

According to the work paper, mediation may touch upon not only the issue of the return of the child but also other issues such as custody or maintenance. Well, meditation may touch it, but the meaning of the Convention is "the return of the child" and "ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State" ART.1

Issues such as "custody or maintenance" doesn't apply in the context of Hague Convention of 1980.

Another problem is concerning the enforceability of mediated agreements because they are lengthly, cumbersome and expensive process. Experts from the Convention have determined the need to explore the question to resolve it.

A new free-standing private international law instrument concerning mediated agreements in family law could also assit families more generally with respect to agreements containing a combination of different family law issues in a cross-border situation. A large number of experts expressed their support for mediation and for further work on enforcing mediated agreements, but some experts emphasised that Hague Convention of 1980 provides for the timely resolution of conflicts like "order the return of the child fortwith.

 

Experts from the European Unión have emphasised that Directive 2008/52 "on certain aspects of mediation in civil and comercial matters", facilitates access to alternative dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and judicial proceedings. The Directive applies between all Member States of European Unión with the exception of Denmark when a cross-border disputes in civil and commercial matters.
Directive 2008/52 requires all the Member States to establish a procedure whereby an agreement may, at the request of the parties, be confirmed in a judgment decision or authority act by a Court or public authority. Mutual recognition and enforcement of mediation agreements.

In Spain, 2012/5 Act of "Mediation on Civil and Commercial Matter" has incorporated Directive 2008/52. According to the 2012/5 Act, a cross-border conflict is made when one (or more) parties is domiciled in another State. To konw where a party is domiciled in that State, we apply ART 59 and 60 of  2001/44 Regulation Brussels 1. 
Respect of International Private Mediation, spanish norma establish that a mediation agreement from a foreign State only can be enforced  whereby a public authority or court have developed the same competence that spanish authorities. To recognise a mediation agreement is necessary to have an enforcement title.