Family Mediation In Separation

Family mediation in separation is a conflict resolution method characterized by its simplicity and flexibility. Especially considering that, today, social conflicts are inevitable.

The family, even though it is considered one of the fundamental pillars of society, is not free from problematic situations that seriously affect the well-being of its members. In addition, the significance of family conflicts in recent decades has evolved, becoming ever greater.

In these circumstances, the focus should not be on preventing or eliminating them, but on the way in which these situations should be faced  in order to solve them.

Mediation in family proceedings

The traditional way of resolving conflicts has generally been to go to court. However, this system is becoming more and more remote from the reality of our days. Specifically, because it does not offer effective responses to the needs of the 21st century society.

The legislators, aware of the situation, have proposed alternative methods of conflict resolution to respond to these needs, as well as to provide a solution to the collapse of the courts that they produced.

In this context, Directive 2008/52 / EC, of ​​the European Parliament and Council of the European Union, of May 21, 2008, had as its main objective to improve the quality of justice. Likewise, in our country, state law 5/2012, of July 6, on mediation of civil and commercial matters, was approved , setting up family mediation in Spanish law.

It is important to distinguish between extrajudicial and intrajudicial mediation. The extrajudicial is that developed outside the judicial process. The intrajudicial one takes place once it has started.

Family mediation will be an extrajudicial or intrajudicial process for the resolution of family conflicts in which an impartial third party helps family members to find a solution to their problems.

Family mediation in separation: concept of mediator

The mediator is defined as a third person endowed with a technical preparation who, from a position of neutrality and without decision-making capacity, intervenes in the conflict between two parties. Its purpose is to get the people involved in the dispute to rationalize a negotiated solution that ends the dispute.

It is essential to understand that the mediator does not have decision-making or legal power, as the judge would have, when deciding. Its role is reduced to facilitating communication. As mentioned above, in order to reach an agreement that is satisfactory for both parties.

The medication law 5/2012 of July 6 regulates in Chapter III the so-called Statute of the mediator. Also, in its article 11, it regulates the conditions necessary to act as a mediator.

These can be summarized as being a natural person in the full exercise of their civil rights and having a university degree or higher professional training. Also, subscribe an insurance or equivalent guarantee that covers your civil liability.

Mediation process “versus” judicial process

The fact that the contentious process tends to generate confrontation and imposition is relevant. By this it is meant that there is always a winning and a losing party, in no case is it intended to favor both.

Therefore, in certain situations, family mediation in the separation can become an advantageous alternative for the parties. Above all, because the mediator will always work to base the procedure on equality.

It is also important to bear in mind that the judicial process is a rigid process, with limited and mandatory solutions. Instead, the solutions that can be reached through mediation are often creative, satisfying, and quick.

It is worth mentioning that, if they exist, the participation of the children in the process must be included. It is important that they are taken into account throughout the procedure. The mediator’s action in this regard must also be effective.

It is essential to understand that, in any case, mediation was not born to solve the problems of Justice. Despite its advantages, it has a very limited scope of action. Although it is true that its expansion potential is wide.

Thus, depending on the situation we face, it will be positive to assess the use of one procedure or another. Always taking into account  the facilities that mediation can provide.