Mediation is gaining greater relevance every day as an alternative system for conflict resolution.
With mediation, the parties, through dialogue and with the help of the mediator, reach the agreements that they consider most satisfactory for the resolution of their disputes.
The Informative session It is one in which the mediator receives the parties in conflict, separately or jointly, and explains to them in a simple way what mediation consists of and all aspects related to the process.
How to prepare an information session?
In my opinion, the three basic objectives What we must keep in mind to prepare an effective briefing are:
- Get information.
- Provide information.
– Create trust in the mediation process and the mediator.
The briefing is the first step that must be carried out in a mediation procedure. It is regulated in article 17 of Law 5/2012 on Mediation in civil and commercial matters, and according to this precept, in the information session, the mediator will inform the parties of:
- The possible causes that may affect its impartiality.
- Your profession, training and experience.
- The characteristics of mediation.
- Its cost.
- The organization of the procedure.
- The legal consequences of the agreement that could be reached.
- If applicable, the deadline to sign the minutes of the constitutive session.
As we see, it is a minimum regulation so it is in the hands of the experience and good work of the mediator, the proceed with the utmost skill to build trust in the mediator and the mediation and that they are encouraged to bet on it to resolve their conflict.
At the beginning of the session, after the initial greeting, we will invite the people who are going to be informed to sit down and the mediator will proceed to introduce himself.
He physical space where the information session takes place, is a factor that we must take into account to help the parties decide to opt for mediation. An adequate temperature, warm spaces... will help people feel comfortable.
It is important to take care of the location of the parties, I consider it advisable to avoid opposing positions, with the round table being the predominant format. We must look for a seating arrangement that encourages communication and direct eye contact between them.
It is advisable to do the seating distribution before the parties arrive and prepare as many chairs as there are people we know are going to attend. The choice about How to place each assistant will depend on each mediatorFor example, Marinés Suares prefers to encourage the parties to choose their seats first and the co-mediators or the mediator occupy the remaining seats.
The distance between the parties must also be assessed, because if the distance is minimal the situation can become violent at a given moment, but on the contrary, if the distance is excessive the discussion will be carried out in overly formal terms.
At the beginning of the mediation…
After sitting down, we can start with a question that helps us break the ice, such as: Have you managed to get there easily? and later, the The mediator may introduce himself to the parties, informing about his professional experience and training., both as a mediator and on another profession that you develop, such as, for example, indicating if you are also a psychologist, lawyer, social worker, engineer...
At this point it is important for the mediator to clarify that the professional role of mediator is the only one he or she will play throughout the mediation process.
Afterwards, we can move forward with questions such as: do you know anything about mediation? Do you know what a mediation process consists of? This will help us, as we said, to reduce the tension and start the session, and it will also provide us with important information about the knowledge level that the parties have about mediation and how to better focus information What are we going to give them?
We will not be able to focus the session in the same way with people who know nothing about mediation, as with those who already know it, nor will the focus be the same when one of them knows a lot about mediation and the other, for example , he completely ignores her.
Sometimes…
We will find that the parties try to tell us about their conflict in depth, make mutual reproaches, etc..., to avoid this, it will be of great help to clarify from the beginning that the objective of the briefing session is to inform them about the process and that in subsequent sessions, that is, in the mediation itself, It is where they will be able to explain everything that is important to them and that concerns them.. This means that they cannot briefly explain to us what the conflict is that has brought them to us, but we will have to ensure that it is a brief reference, which allows us to situate ourselves in the conflict and also helps us to analyze whether it is mediable.
In addition to addressing all aspects related to the process and emphasizing the principles of mediation and especially its voluntariness; Personally, I like it positively reinforce the parties' decision to attend the briefing, to convey from the beginning that in mediation They are the ones who make the decisions, in addition to appreciating that they have taken that first step, which is sometimes very hard for some due to the specific circumstances of the case.
A good way to start is to explain to them, for example, that through mediation very good results are being achieved in cases like theirs and other more complicated ones, and that although it is a fairly new system in Spain, it has been used with great success for years. in other countries. From there we can go on to explain the many advantages of resolving your dispute through mediation.
Advantages of mediation
As some of the advantages of mediation, we can point out:
- Flexibility and prominence of the parties. The mediation process must be flexible in order to adapt to the specific circumstances of the case and the subjects, the parts are the real protagonists. Mediation offers an agreement adapted to the particular needs of the parties in conflict. They know their specific needs better than anyone, avoiding, in whole or in part, the imposition of rules or norms by an outside third party, such as the judge, in cases in which the conflict is judicialized for resolution. It is proven that the agreements reached voluntarily are more durable And furthermore, if any other conflict arises in the future, the parties are more prepared to face and resolve them.
- Allows the reestablishment of communication between the parties. Mediation reduces tension and confrontation, facilitating understanding of the other and improving relationships between the parties, thus favoring the reestablishment or improvement of communication between them, both during the mediation process and in the face of the future.
- Offers the parties a neutral and confidential space, where to talk about the problems that concern them.
- Save time and money. Mediation will always be a cheaper alternative than the option of going to the expensive judicial process, and a faster solution than long and tedious judicial processes, which depending on the city, can last up to years.
- There are no winners or losers, there are conflicts resolved. Everyone wins. The agreements reached in mediation are more satisfactory for all participants, thus ending the conflict in a more profound and lasting way.
- Professionalism. Mediation is a dialogue process assisted and managed by a professional, the mediator, with multidisciplinary training.
It will be of great help to us to explain the benefits that mediation would bring in your specific case, for example, in a family conflict due to a divorce, we will be able to highlight things such as that mediation prevents the conflict from recurring and negatively affecting the children, that It prevents children from anguish due to constant arguments that can affect their feelings, their relationships and their school performance...
It is important that during the information session, the mediator strives to convey all these advantages to the interested parties, as well as to create a climate capable of generating trust, both in the process itself and in himself as mediator.
The first impression and our explanations are essential so that they can understand the meaning and value of mediation and how it can help them resolve their conflict. It is about transmitting confidence in mediation and giving them hope that they can manage their situation in a constructive and beneficial way for them.
In addition to making known the advantages that mediation offers, the mediator must explain to the interested parties all the aspects related to the process, such as the principles that govern it, its cost, the procedure to follow, its consequences...
Principles of mediation
Regarding the Principles of mediation, these are included in articles 6 to 9 of Law 5/2012:
1. Mediation is volunteer and no one is obliged to remain in the mediation procedure or to conclude an agreement. After explaining it, we can ask them: do you agree that you have come voluntarily? and wait for everyone to respond.
2. Equality of the parties and impartiality of the mediators. In the mediation procedure, it will be guaranteed that the parties intervene with full equality of opportunity, maintaining a balance between their positions and respect for the points of view expressed by them, without the mediator being able to act to the detriment or interest of any of them.
3. Neutrality. The mediation actions will be carried out in a way that allows the parties in conflict to reach a mediation agreement on their own.
4. Confidentiality. The mediation procedure and the documentation used in it is confidential. The obligation of confidentiality extends to the mediator, who will be protected by professional secrecy, to the mediation institutions and to the intervening parties so that they will not be able to reveal the information that they may have obtained derived from the procedure.
The confidentiality of the mediation and its content prevents the mediators or the people who participate in the mediation procedure from being obliged to declare or provide documentation in a judicial procedure or in an arbitration regarding the information and documentation derived from or related to a mediation procedure, except:
a) When the parties expressly and in writing waive the duty of confidentiality.
b) When, through a reasoned judicial resolution, it is requested by the judges of the criminal jurisdiction.
After explaining it, we can ask them: do you agree that everything you say in the mediation sessions will be confidential? and wait for everyone to respond.
Also, it is essential that the mediator explains the basic rules that must be respected during the mediation process.
We could tell them something like this: it is necessary that we respect some rules that I am going to tell you now, and on which we must all agree. In addition to these, which are essential for mediation to function correctly, you can also suggest some other rules that you think we should take into account.
Fundamental rules of mediation
These are the fundamental rules I was talking about:
– Mutual respect. No insults, offensive language, shouting or violence are allowed. It is convenient to ask: do you agree not to insult each other, or to use offensive language to address each other?
– Respect turns to speak. You should avoid interrupting the other person until your turn is granted. It is appropriate to ask: do you agree to listen to each other and not interrupt each other?
– Collaboration and good faith. In order for an agreement to be reached through mediation, it is essential that the parties get involved in the process. We can seek a “statement of intent” from the parties by asking them: do you agree to make an effort to resolve the problem, being as honest and sincere as you can?
Steps of the mediation process
Regarding the mediation process, it is regulated in articles 16 to 24 of Law 5/2012 on mediation in civil and commercial matters.
The mediation procedure will begin with a constitutive session in which the parties will express their desire to develop mediation and will record in the minutes of constituent session, of the following aspects:
a) Identification of the parties.
b) The designation of the mediator and, where appropriate, the mediation institution or the acceptance of the one designated by one of the parties.
c) The object of the conflict that is submitted to the mediation procedure.
d) The program of actions and maximum duration planned for the development of the procedure, without prejudice to its possible modification.
e) Information on the cost of mediation or the bases for its determination, with a separate indication of the mediator's fees and other possible expenses.
f) The declaration of voluntary acceptance by the parties of the mediation and that they assume the obligations derived from it.
g) The place of celebration and the language of the procedure.
The minutes must be signed by both the parties and the mediator or mediators. When the parties or any of them do not wish to carry out mediation, said minutes will declare that mediation has been attempted without effect.
In addition, The mediator must explain how the mediation actions will be carried out, indicating to them, for example, that you will call them for each session with the necessary advance notice, that you will direct the sessions as well as that you will facilitate the presentation of their positions and their communication in an equal and balanced manner.
It must also clarify that communications between the mediator and the people in conflict may or may not be simultaneous and that it will inform all parties of the holding of meetings that take place separately with any of them, without prejudice to the confidentiality of what was discussed. . The mediator may not communicate or distribute the information or documentation that the party has provided, unless expressly authorized by the party.
Depending on the availability of the parties, a price may be set from the beginning. calendar with session dates that a priori the mediator considers necessary to carry out, or the date on which the next mediation session will take place may also be set in each session..
The cost and duration of mediation sessions
In relation to this point, Law 5/2012 establishes that whether or not the mediation has concluded with the result of an agreement, its cost will be divided equally between the parties, unless otherwise agreed.
Both the mediators and the mediation institution may require the parties to provide funds that they deem necessary to cover the cost of the mediation.
If the parties or any of them will not make the requested provision of funds on time, the mediator or the institution may terminate the mediation. However, if any of the parties have not made their provision, the mediator or the institution, before agreeing to the conclusion, will inform the other parties, in case they have an interest in supplying it within the period that has been set.
The minutes of the constitutive session must include information on the cost of mediation or the bases for its determination, with a separate indication of the mediator's fees and other possible expenses.
How the mediator should act
- He language and expressions that the mediator uses, they must be as clear and simple possible, avoiding the use of technicalities that the parties may not understand.
– Use a appropriate tone of voice.
- The Empathy, It is essential to generate trust between the mediator and the parties. The mediator, Through active listening, you must ensure that the parties perceive that you hear what they say and that you understand what they say. Through empathy, understanding and sympathy is generated between the parties and the mediator, facilitating dialogue.
– The mediator must ensure that at the end of the information session, the parties feel able to resolve your conflict by themselves.
Objectives of the briefing
In summary, we can point out the objectives of the information session:
- Inform the parties in detail about the principles and process of mediation.
- Transmit to the parties the values and advantages of mediation.
- Let the parties briefly present the problem that has led them there.
- That the mediator has the opportunity to assess whether the parties are suitable for mediation.
- Resolve doubts.
- Illusion and responsibility. The best solution is the one they can find for themselves. At the briefing the mediator empowers the parties, They can positively overcome the conflict through mediation.
- Obtain from the parties their commitment to participate in mediation.
Meet the author of this post, Ms. Emilia Ramirez, lawyer and teacher at the International School of Mediation.
