Mediation is a method of conflict management, which includes a neutral third party mediator, with the task of helping the parties to a conflict to negotiate from the partnership, a resolution the same, satisfactory to all. It consists of a voluntary, flexible and participatory peaceful conflict resolution through which the parties meet with a third party (the mediator) who assists them in negotiating the agreement that addresses the interests of each.
It is an excellent method to solve problems in familiar areas, business, educational, institutional and community because it avoids the lawsuit meets the needs of the parties and strengthens cooperation and consensus.
One of the most important areas of intervention of mediation is, without doubt, the family, the main reason is the diversity of times when mediation can be useful in resolving conflicts in family systems, since the solution problems between the various subsystems of an extended family, for example, hierarchical problems, even the most familiar, which is redefining the nuclear family separations caused by intercourse.
Like any other technique, mediation has its limitations and in some cases may not be possible, ie, viable. From the viewpoint of stakeholders, the most common causes may be that some of those involved considered it might obtain better results in litigation and therefore has no willingness to negotiate, that consciously or unconsciously, use the conflict to maintain The link with the other, that the object of interest not resolve a specific conflict, but redirect a relationship in crisis.
And from the standpoint of the mediator, mediation may not be feasible due to the difference in resources and skills of some of the stakeholders; existence of abuse. Another of the limits of mediation is mandatory or voluntary nature of the use of the resource.
Objectives and principles of the mediation process
Among the main objectives pursued by this technique emphasize:
- Facilitate the establishment of a new relationship between the parties in conflict.
- Increase the respect and confidence between them.
- Correct perceptions and misinformation that may have regard to the conflict and / or between those involved in this.
- Create a framework to facilitate communication between the parties and conflict transformation.
The principles of the mediation process are:
a) The power is exercised by the parties themselves: Are the participants themselves who control the process and decisions. It is a process that begins in a certain way and is evolving and progressing through stages interspersed with steps.
b) neutrality and impartiality of the mediator: The mediator may not take sides with one party, even in the event that one of them occupies the position of the weak. In this case the mediator will seek to balance power between the parties through the use of appropriate communication techniques. Before starting a mediation the mediator should ask about the existence of any circumstance likely to create bias in the conduct thereof.
With this neutral and impartial mediator helps decenter the conflict in his dual position, face to face confrontation, and opens a space that is neither one nor the other, but belongs to both, where they can see the point of view of others, to redefine their own positions and finding common interests.
c) Confidentiality: During mediation the participants (both the individuals concerned, the mediator) maintain absolute privacy and have the assurance that what is said in a mediation session may not be used in court.
d) Voluntariness: Mediation requires the free and explicit agreement of the participants. Mediation may not be imposed. You can not force people to establish relationships or to reach agreements.
The voluntary nature also affects the mediator in two ways:
- It legitimizes the role and power of the mediator, giving him permission to act.
- Allow the mediator to suspend mediation if it considers it appropriate on grounds advised to do so.
Stages of mediation
In general, as studies show mediation, we can distinguish five stages in the mediation process:
1. Identifying the problem: Stakeholders recognize the existence of the conflict and its willingness to solve it. Both need to understand that the problem affects both and need to negotiate, without this mediation is not possible.
2. Choosing mediation to resolve the conflict: The most widespread form of establishing the conditions of a separation or divorce is going to the litigation through a legal representative who, when possible, is responsible for negotiating with the couple .
When choosing one route or another, must be clear that mediation is complementary to the litigation and that in no way implies waived and that the choice of this route does not mean giving up your legal advisor.
The choice of mediator should be shared. In Spain, the offer is still low, but begin to have public services throughout the country and private practitioners are beginning to offer their services.
The mediator explains the parts of the process characteristics (duration, fees, role of external consultants, etc.), rules to follow (respect, role of the mediator, confidentiality, etc.), the parties define their goals and are asked for their express waiver claim the mediator's testimony in court. All this is contained in a document signed by the three to which a copy is given to each.
3. Problem Identification: This is a compilation of the parties, in the presence of another, thereby defining know that the other does the conflict as well as its content. The mediator, using appropriate techniques, directs and supervises the process that there is a loss of control that can lead to a dynamic threat and counter, taking into account any imbalances between the parties.
It is obtaining a shared narrative of the conflict, for which the mediator helps them decide what are the issues they want and do not want to negotiate and in what order.
At the same time, the mediator must take care that the parties respect the speech that the treatment is correct and follow their instructions. You are invited to make proposals and alternatives not be prejudged, even assessing their consistency and feasibility.
4. Negotiation: During the process, the parties will accept the legitimacy of private interests of others as a step to accept the settlement of the conflict as a shared interest, I win, you win ", which enables both cooperate in good order. Is negotiated case by case. In each of them performing a brainsmtorming subsequently discarded less interesting ideas, and is prepared and negotiated each of those accepted.
5. Drafting of the agreement: The mediator drafts the document which sets out the agreements reached, trying to use the forms of expression of the parties. Be signed by both and by the mediator, giving a copy to each. Provided that, before signing, they are reminded of the opportunity to consult with his lawyer. Finally, counsel agreed to translate the legal terms for processing at the courthouse.