I have considered it necessary to make a brief reference to the general aspects that must govern all Mediation, whether family, business, community or neighborhood, to later address the singularities that a mediator must face when faced with the most disparate conflicts. that the neighborhood communities raise.
From a legal point of view, the concept of mediation is offered by article 1 of Law 5/2012 of July 6, providing what mediation is understood to mean. “that means of dispute resolution, whatever its name, in which two or more parties voluntarily attempt to reach an agreement by themselves with the intervention of a mediator.”
For its part, Directive 2008/52/EC, in its article 3, defines it as “a structured procedure, whatever its name or denomination, in which two or more parties to a dispute voluntarily attempt to reach an agreement on the resolution of their dispute with the help of a mediator. This procedure may be initiated by the parties, suggested or ordered by a court or prescribed by the law of a Member State.
In this sense, it is common in both definitions that mediation is a way of resolving conflicts between two or more people, with the help of an impartial third person, the mediator, who does not impose solutions or give an opinion on who has the truth, what seeks is to satisfy the needs of the parties in dispute, regulating the communication process and conducting it through a few simple steps in which, if the parties collaborate, it is possible reach a solution in which everyone wins or, at least, is satisfied.
A characteristic of mediation is that it is a cooperative negotiation, to the extent that it promotes a solution in which the parties involved win or obtain a benefit, and not just one of them. That is why it is considered a non-adversarial path, because it avoids the winner-loser posture. For this reason, it is also an ideal process for the type of conflict in which the opposing parties must or wish to continue the relationship.
For the mediation process to be possible, it is necessary that the parties are motivated, because they must agree to cooperate with the mediator to resolve their dispute, as well as to respect each other during and after the process, and respect the agreements that are reached. have been achieved, a circumstance that occurs with a high rate of compliance, because they are those that the interested parties themselves have proposed and have committed to comply with.
Communication is an essential element in conflict resolution. In fact, we could define the mediation process as consisting of providing the parties in conflict with quality communicative resources so that they can solve the conflict at hand. Throughout the entire process, the parties talk about reproaches, positions, opinions, desires, needs, feelings, and the mediators must help them to express themselves constructively and to listen to each other, in such a way that the communication they establish can be help them resolve the conflict.
Depending on the parties that are at odds, we may be talking about extrajudicial or intrajudicial Mediation.
Extrajudicial Mediation is where the opposing parties, without the need to start a judicial process, go to a qualified Mediator to resolve their differences, reaching a possible agreement, avoiding going to Court and starting a procedure that generally tends to take a long time. time with the economic and emotional cost that this entails.
For its part, Intrajudicial Mediation occurs when the opposing parties that have already initiated a judicial process are directed by the Judge to resolve their differences in a Mediation procedure with a qualified Mediator and outside of the judicial process. If an agreement is reached, it will be presented before the Judge who directed the parties to the Mediation procedure to validate said agreement, which once validated will be enforceable before the Courts if someone breaches it.
It is also necessary to make a second typology based on geographic scope, distinguishing between national and cross-border.
We speak of cross-border Mediation, as indicated in article 3.1 LM, when either one of the parties is domiciled or habitually resides in a State other than the one in which any of the other parties affected are domiciled when they agree to use mediation. , or it is mandatory to attend it in accordance with the applicable law.
A clear example of this type of Mediation would be found with respect to second homes, in which the majority of its occupants are foreigners who come in the summer season to enjoy their vacations, while they are domiciled in their countries of origin, in In this case and following the provisions of the aforementioned article, we would speak of cross-border mediation.
Conflicts foreseen or resolved by a mediation agreement are also considered cross-border, regardless of the place in which they took place, when as a consequence of the transfer of domicile of one of the parties, the agreement or some of its consequences are intended to be executed in the territory of a different State.
Mediations will be national when the circumstances described in article 3.1 LM do not occur.
Articles 6 to 10 of Law 5/2012 list the informing principles of mediation.
1.- Voluntariness and free disposition.
This principle is contained in article 6 of Law 5/2012, essentially indicating that the voluntariness that must govern mediation covers both the beginning of the procedure and its course and completion.
Regarding its initiation, only when there is a written agreement that expresses the commitment to submit to mediation the controversies that have arisen or may arise, should the agreed procedure be attempted in good faith, before resorting to the jurisdiction or another extra-jurisdictional solution ( article 6.2 LM). In the latter case, the obligation to attend mediation in advance depends exclusively on the agreement that the parties have previously reached in this regard, and therefore, does not represent any exception to the rule of voluntariness.
The initiation of the mediation procedure is also voluntary in cases of judicial mediation, since although it is mandatory for the judge to refer the parties to mediation, it is not mandatory for them to accept mediation, as is clear from the aforementioned articles of the LEC. to this extreme.
Regarding the course of the procedure and its completion, article 6.3 LM is exhaustive in providing that «no one is obliged to remain in the mediation procedure or to conclude an agreement».
That is to say, this principle implies that every person who attends mediation must do so from the willfulness and you must be aware that you can request to leave the Mediation at any time during the process, without consequences of any kind.
Article 7 of Law 5/2012 provides that “in the mediation procedure it will be guaranteed that the parties intervene with full equality of opportunity, maintaining a balance between their positions and respect for the points of view expressed by them without the mediator being able to act to the detriment or interest of any of them” .
- Impartiality and neutrality
The final paragraph of article 7 LM refers to the impartiality of the mediators by providing that everything previously established regarding the equality of the parties will be carried out. “without the mediator being able to act to the detriment or interest of any of them”. That is to say, the necessary equality of the parties with the impartial performance of the mediator is closely connected in the text of this article 7.
This implies that the mediator will not at any time evaluate the attitude or actions of the parties in conflict, it is not his responsibility to make value judgments of any kind, so he will be impartial at all times.
For its part, article 8 provides that “The mediation actions will be carried out in a way that allows the parties in conflict to reach a mediation agreement themselves, with the mediator acting in accordance with the provisions of article 13”.
That is to say, the mediator must always respect the point of view of those involved in the conflict, as well as the result of the Mediation. At no time will it impose its own criteria, although it will actively help the parties in the search and formulation of alternatives.
Impartiality and neutrality are both requirements required of the mediator, who must not decide in the conflict but only mediate.
As stated in article 13.2 LM “the mediator will develop active behavior aimed at achieving rapprochement between the parties (…)”. And throughout the entire procedure, the mediator will maintain an equidistant position from the parties because he or she should not have any personal interest in the procedure. Thus the impartiality and neutrality of the mediator complement each other.
For impartiality, article 13.4 LM provides that the mediator should not start or abandon his activity when circumstances arise that affect his impartiality. And then, section 5 of the same article establishes that before starting or continuing his task, the mediator must reveal any circumstance that may affect his impartiality or generate a conflict of interest. He then lists a series of objective circumstances that put the impartiality of the mediator at risk:
- Any type of personal, contractual or business relationship with one of the parties
- Any direct or indirect interest in the outcome of the mediation
- That the mediator or a member of his or her company or organization has previously acted in favor of one or more of the parties in any circumstance, with the exception of mediation.
In these cases the mediator may only accept or continue with his task when he ensures that he can do so with total impartiality and provided that the parties consent and expressly state it, with the duty to reveal this information remaining constant throughout the entire procedure.
The neutrality of mediators may be required via liability once the rule contained in article 14 LM is developed.
Confidentiality refers to article 9 LM, more than a guiding principle of mediation, it constitutes an essential guarantee for the success of mediation, to the point of being considered a condition sine qua no N for the proper functioning of ADR, because it contributes to guaranteeing the frankness of the parties and the sincerity of communications during the procedure.
And this is because if the objective is to achieve a sincere attitude on the part of the parties that allows reaching an agreement between them, the guarantee of confidentiality, both of the statements made during the sessions with the mediator, and of the information that the parties present. in support of their interests, it will generate sufficient trust and security in the parties so that they express their true intentions and desires, without fear that what was expressed during said procedure may later be used against them, and will encourage that the agreement reached between them obeys certainly to the will of the parties freely expressed and without coercion, so that there will be a greater probability that the agreement between the parties truly reflects the solution that they want for their conflict.
However, said sincerity can also be a reason for fraudulent actions, since this frankness of the parties with a view to reaching a solution to their conflict gives rise to both the parties and the mediator having access to information that, even a judge or a arbitrator would obtain during a jurisdictional or arbitration process. Therefore, if such sincerity and frankness is to be ensured, it is also necessary to guarantee the parties that the information and statements provided during the mediation will not subsequently be used against them in a hypothetical contentious judicial process.
Finally, remember that there are two exceptions to the confidentiality indicated in article 9.2 LM when the parties waive this duty expressly and in writing and when the criminal judge reasonably requests it.
Violation of the duty of confidentiality will generate liability in the terms provided in the legal system (article 9.3 LM).