La transactio romana y el actual acuerdo de mediación

Abstract

The building of the solution by the parties in a dispute in an out of court settlement system depends largely on the activation of instruments that can provide a high degree of safety in the fullfilment of the built agreement. It is proposed an analysis from a historical point of view of the elements that have led the fullfilment of the agreement built by the parties, at this point, Roman law offers a basic example as it belongs to the magistrate’s court officium to provide a guide for the formation of consensus between the conflicting parties in order to reach agreement before the effective process. The 5/2012 Act about mediation in civil and commercial matters, regulates in its Title V the procedures to enforce the agreements resulting from mediation process. In connection with the mediation agreement as is stated in its article 23.3, to configure the agreement as an enforceable tittle it is necessary to give it public deed. The study raises the effectiveness of the mediation agreement as an enforceable tittle and analyzes the changes suffered by the Civil Procedure Act in Spain regarding the direct enforceability of the upon mentioned mediation agreement.