Mediation in Consumer Matters. An Approach in European and Spanish Law

Abstract

Given the obvious inadequacy of ordinary legal procedures to resolve consumer disputes, it is necessary to look for alternative models which, without excluding administrative and judicial proceedings, are more accessible to consumers. Although arbitration is the most widely used model, consumer mediation is becoming increasingly more important. Consumer mediation lacks a systematic organisation in Spanish law and the rules on consumer arbitration only refer to mediation, remitting to regulation by the autonomous communities, some of which have exclusive competence in mediation in their Statutes of Autonomy. Although mediation in consumer affairs often falls within arbitration procedures, the optimal solution would be to separate mediation linked to arbitration procedures (intra-arbitration) from consumer mediation detached from arbitration (extra-arbitration) to offer more alternatives for out-of-court conflict resolution, taking into account that a resolution obtained in a process of mediation will be enforceable if it is in the form of a court settlement or if it is recorded by a notary. The conclusion is that consumer affairs are especially suitable for mediation, although the rules on consumer arbitration are inadequate for normalisation, making it necessary to introduce specific regulations on mediation for their application in this field.