Family Mediation and Dispute Resolution

20 December, 2020
The transcendence of family conflicts has evolved and more and more of them become entangled in legal conflicts. This is why there's a focus on the issue of family mediation under these circumstances.

Family mediation is a conflict resolution method characterized by its simplicity and flexibility. Especially considering that social conflicts are unavoidable nowadays.

Family is one of the fundamental pillars of society. However, it isn’t free from problematic situations that seriously affect its members’ well-being. Furthermore, the significance of family conflicts in recent decades has evolved and increased.

The focus shouldn’t be on the prevention or elimination of these circumstances but on how to address and solve them.

“If you spend your time hoping someone will suffer the consequences for what they did to your heart, then you’re allowing them to hurt you a second time in your mind.”

-Shannon L. Alder-

Mediation in family processes

The traditional way of resolving conflicts is usually to go to court. However, this system is increasingly removed from the reality of this era. In particular, because it doesn’t offer effective answers to the needs of modern society.

Legislators, aware of the situation, have proposed alternative methods of conflict resolution to respond to these needs. This is because they want to provide a solution to the collapse of the courts that produced them.

Two people shaking hands.

In this context, the main goal of some governments is to improve the quality of justice. In fact, some of them already have family mediation of civil and commercial matters in place.

It’s important to distinguish extrajudicial from intra-judicial mediation. Extrajudicial mediation develops outside the judicial process. On the contrary, intra-judicial mediation takes place once the process has begun.

Family mediation will be an extrajudicial or intra-judicial process for the resolution of family conflicts. In it, an impartial third party helps family members find a solution to their problems.

The impartial third party or mediator will always try to bring people closer together. Their goal is to reach an agreement that’s satisfactory to all at all times.

Family mediation and the role of the mediator

This is a third-person with a technical background who, from a position of neutrality and without decision-making capacity, intervenes in the conflict between two parties. Their purpose is to get the people involved in the dispute to rationalize a negotiated solution. One that’ll end the dispute.

It’s important to understand that the mediator can’t make decisions nor has legal power, as a judge would have when resolving the dispute. Their goal is to facilitate communication and help parties reach an agreement that’s satisfactory to all.

Thus, the mediator is basically a natural person in full exercise of their civil rights and in possession of a college degree or higher professional training. Also, they must have insurance or an equivalent guarantee to cover their civil responsibility.

Two dummies shaking hands.

Mediation process versus the judicial process

It’s relevant to say that litigation tends to generate confrontation and imposition. This means there’s always a winner and a loser and doesn’t intend to favor both.

For that reason, family mediation in cases of divorce or separation can be advantageous for both parties. Above all, because the mediator will always work to base it on equality.

Also, keep in mind that the judicial process is rigid, its solutions limited, and their fulfillment mandatory. In contrast, the solutions reached through mediation are usually creative, fast, and satisfactory.

In addition, children, if any, must participate in the process because it’s important to consider them throughout. The mediator’s actions in this regard must also be effective.

Finally, you must understand that the purpose of mediation isn’t to solve the problems of justice. In fact, the scope of action is rather limited despite its advantages even though its expansive potential is wide.

Thus, depending on your situation, it’ll be positive to evaluate the use of one procedure over another. Always take into account the facilities that mediation can provide.

  • Mª del Carmen Cazorla, “La mediación familiar como solución a los conflictos de crisis de pareja”, Aranzadi.
  • Ley estatal 5/2012, de 6 de julio, de mediación de asuntos civiles y mercantiles, https://www.boe.es/buscar/act.php?id=BOE-A-2012-9112