It could be stated that mediation without voluntariness is not mediation. It is one of the four fundamental principles, along with impartiality, confidentiality and neutrality. But why do we say that voluntariness is so important?
For mediation to be considered as such, it is necessary that the process be driven by the parties' own will to resolve their conflict (with the help of a mediator). And not only is the will needed to initiate a mediation procedure, but also to maintain the process and to conclude the agreement.
“Voluntariness as a principle of mediation is what restores freedom to the parties.”
As Ana Mª Carrascosa, Magistrate of the General Council of the Judiciary, pointed out in a conference she offered last week at the Pontifical University of Salamanca on 'The advantages of mediation', voluntariness gives the parties the power to decide for themselves the best for them.
If this principle is not met and the interest in resolving the conflict does not arise from the parties, then it falls on a third person, who would be a judge in the case of ordinary jurisdiction. “What a judge does is a conciliation, because the judge is always above the parties, the horizontal relationship is missing«, according to Carrascosa. However, mediation is based on equity between the parties and the mediator himself, without a relationship of authority.
The lawyer defended the profession and the figure of the mediator: “The lawyer, if he practices as such, cannot be partial, the mediator has to be equidistant from the parties,” she stated. "He who comes from the law to mediate has the conflicts so categorized and internalized that it is more difficult to act as a mediator." And it is that Mediators must always ensure that the agreement is beneficial for both parties, without any losing their rights and interests to the extent possible.
Mediation is a discipline that has its principles, as we have already mentioned. Mediation is governed by its own laws and regulations that must be complied with, both at a theoretical level of prior training of professional mediators and at a practical level within the procedures.
According to Carrascosa, mediators must be “professionals prepared to manage conflicts with both parties impartially and contemplate a structured, but flexible procedure defined by the science of mediation.” Luckily, it is a trade that can be learned through, for example, this university training program for access to the registry of mediators of the Ministry of Justice based on current regulations, which enable mediation to be exercised in our country.
Perhaps we find ourselves facing the new social and institutional need for modify the paradigm regarding litigation, since traditional justice is proving not to be adequate for all types of conflicts. Each problem is different and requires a different treatment to achieve a satisfactory solution.
