26 Mar Private conciliation or mediation?

Keys to Choosing the Best Path to Resolve a Conflict

With the entry into force of Organic Law 1/2025, which reforms key aspects of the functioning of Spanish justice, a strong commitment to Alternative Dispute Resolution Methods (ADR) is consolidated as a preliminary —and sometimes mandatory— step before resorting to the courts. In this context, both mediation and private conciliation emerge as valuable options, with specific regulations such as Law 5/2012, regarding mediation in civil and commercial matters, and the Catalan Law 15/2009, regarding mediation in the field of private law.

But what is the difference between these two approaches? And in which cases is it more advisable to choose one over the other?

Private Conciliation: An External Solution Proposal

Private conciliation is a dispute resolution mechanism in which a third-party impartial person (the conciliator) proposes a solution to the parties, who can either accept or reject it. This approach is characterized by:

• Greater directive power: the conciliator can make concrete proposals.
• Speed: it is common in conflicts that do not require in-depth emotional work.
• Usefulness: ideal for specific disagreements of an economic, contractual, or minor civil liability nature.

Mediation: A Space for Dialogue and Conflict Transformation

Mediation, on the other hand, is based on the willingness of the parties to collaboratively build a solution to the conflict, with the help of a neutral professional (the mediator) who facilitates communication and supports the process. Its main features are:

• Active participation of the parties: the mediator does not impose or propose solutions, but helps in constructing them.
• Suitable for ongoing relationships: in family, neighborhood, associative, or commercial partnerships.
• Appropriate for complex situations, where emotions, interests, and needs need to be addressed.

Neutrality and Impartiality

In mediation, the professional must be both neutral and impartial: they cannot influence the content of the conflict (neutrality) or take sides with either party (impartiality). Their role is to facilitate communication and autonomy for the parties.

In private conciliation, the conciliator must be impartial but is not necessarily required to be neutral. They can actively intervene, make concrete solution proposals, and guide the process toward an agreement, while maintaining fair treatment of all parties.

Important: If requested by the parties, the mediator may make proposals, as long as it does not compromise neutrality or impartiality. Article 6.2 of Law 15/2009 does not prohibit this: “The mediator must help the participants reach commitments and decisions on their own, without imposing any solution or specific measure and without taking sides.”

Which One to Choose?

There is no universal answer. The key lies in evaluating the nature of the conflict, the relationship between the parties, and their willingness to engage in dialogue. In general terms:

• For specific and punctual conflicts, with little relationship between the parties: conciliation.
• For relational conflicts, where communication is broken or the relationship needs to be preserved: mediation.

The new Organic Law 1/2025 and the current regulatory framework promote a culture of dialogue-based resolution, where each tool has its place. Conciliation and mediation are not rivals, but distinct paths to the same goal: social peace and justice beyond litigation.