INSTITUTION OF MEDIATION
In our society, we find many and different problems, because the conflict is inherent in the human being, it is the human condition, because the differences of opinions, interests and wishes are unavoidable between people, and they don´t always have an adequate answer, so it is necessary to provide instruments that help to manage the solution in a dispute, either familiar, social, neighborhood, communal, commercial, …trying to minimize the negative effects of the dispute.
To sort out the conflicts, it can be mention the following strategies used.
1-Survival of the fittest.
2-The first rules which apply drastic sanctions, such as The Lex Talionis.
3-The decision by the Authority , empowered to a third party, The Lord, The Cesar, The king, who was granted the decision between their subjects.
4- With the separation of executive, legislative and judicial powers, this authority is given to a different entity, allowing to the person in charge of the judicial power to resolve the conflicts based on the laws created by other branch of the Government, the legislative.
5-The alternative resolution, the Mediation. This method is based on a change of attitude of the human being towards conflict, because the evolutionary step since a competitive attitude to a collaboration one.
A basic concept of mediation would be, that it is "the voluntary procedure by which two or more people involved in a controversy or conflict, seek and construct a satisfactory solution for it, with the assistance of an impartial third party called a mediator".
It is explained by the orange story, which have different versions, and make us understand the positions and interests roles and how with the dialogue a satisfactory solution for everyone can be found. Two brothers dispute for an orange. As there was just one, the obvious solution would be split it in half, but with that solution the boys are not satisfied. They go with their mother to resolve the dispute. After talking with them, she peels the orange and gives the fruit interior to the boy who wants to eat it and the exterior to the other one, who wants to play with it by making little shapes. Here we find an optimal mediation, to talk, to understand, look for the real interest and give a satisfactory solution to both parts.
The use of dialogue is basic for the resolution of the conflicts, through the mediation it seeks to promote the operational activity between the parties involved ( I win/you win), it helps them to develop an aptitude of comprehension and empathy. As well as foment the self-management skills, the self-regulation and practice democratic participation.
The mediator works as an enabler of the process. It is a neutral third party, expert in communication, that creates an area, the opportunity and conditions to facilitate the dialogue between the parties, so they reach an acceptable mutually agreement, as we say in Spain, “by talking we come to understand people”. It is just to give a chance to the dialogue.
In difficult or conflicting situations, by the parties’ request, the mediator stands in the middle of those involved for, through the communication techniques, help them to find out their interests and their needs, and in this way, try to satisfy everyone´s interest, going ahead with a relationship based on the respect and the mutual recognition.
The mediation is a conflict resolution of voluntary procedure, an alternative method to the court proceeding, in which the parties ask for and accept the professional, impartial, neutral mediators’ intervention. The mediation helps to look for useful answer to the conflict and allow an approach to the persons real needs. The parties maintain the control of the negotiations and the dispute.
In mediation, the persons in conflict do not delegate their power to a third (a Judge, Arbiter…who is in a further stage, triangular frame) but they are the ones who set the agreements and those are going to be their wills reflect. The agreements have a bigger probability of compliance because they are the result of a personal decision of the parties, decision that create the obligation or commitment. The mediation will be possible if both parts agree to cooperate with mediators to resolve the conflict, as to respect each other during and after the process, and they agree to meet the agreements they sign at the end of the process.
Although we are used to the court proceeding as the traditional channel for trying to resolve the conflicts, avoiding dialogue with our interlocutor because when we have problems we go directly to our lawyer, and without denying the importance of this way, as for the right to the actual judicial protection as a fundamental right of all the citizens (art 24 of the Constitution), it has many deficiencies on its resolution. With a high economical and emotional cost.
So the main differences that we can find between a judicial process and the mediation will be;
- While the judicial process has mandatory complaints even coercive on the parties, and the decisions taken in it are going to be of obligatory compliance, at the Mediation the will of the parties prevails, on a voluntary basis, and the decisions taken are going to be created by the parties.
- While the judicial process is an adversarial process, in other words, the parties see each other as enemies, in the Mediation, the process is totally collaborative, the parties accept the agreements collaborating, the vision of the other is not now as an enemy.
- While the judicial process the decisions are taken by an external third party( a judge) who is in a further stage, over the base of two opposing positions, one of them being winner and the other the losing party. In the Mediation, by contrast, involves an autonomous decision of the parties, decision made by the parties themselves, and does not exist the winner or loser sensation, because the decision is not taken by a third party, but by themselves.
- While in the judicial process the parties really lack prominence, since in addition to the judge, a third party alien to the parties who makes the decision for them, there is also the presence of the lawyers of each of the parties, who will be present to them. represent and those who really have the leading role in this process, in Mediation on the contrary, the protagonists are the parties, there is a direct participation in the process, something that does not happen in the process judicial.
- While the judicial process is rigid and standardized, the Mediation is much flexible and creative.
The Mediation is a key element and necessary for the solution of the conflicts in any area, for the benefits that this method gives to the members of the society. Although, is true that little by little it is being established as an advisable and beneficial option, it still is the great unknown for the citizen, who is which, as a last resort, will enjoy this service.
It´s about time to change the approach of the resolutions and disputes, different to the traditional litigating or lawsuit, we have to be the developers of consensus, for the benefit of our society.
All you should know about the Mediation:
Law 5/2012 from July 6th, the mediation on civil and commercial matters 
Articles of Mediation of the COAPI of Alicante
Get in Touch:
Telephone Contact +34 965 984 125 o by email coapi@apialicante.com