How many times have you heard me say that the most important moment of a mediation, and often the one we pay the least attention to, is the one in which we have the first contact with someone we don't know: our mediators.
We pay special attention to the initial speech, in fact, we emphasize to our students that they do not forget to inform them in the first session of the principles of mediation, voluntariness, confidentiality, etc. But we do not dedicate time to our personal work for three basic questions in that first moment: that they legitimize us to help them, that they legitimize the process that we are going to follow and that they legitimize the parties that are going to intervene.
That is why I consider this internal work more than important and even more so when it seems that the new regulations on procedural advances, to create quality justice, will surely require that many people with conflicts in the private sphere have to attend an informative and exploratory mediation session. , so that they can decide if they want to start that process voluntarily. We have the responsibility of ensuring that they can legitimize this mediation process and us as mediators.
Let us not forget that “legitimation is the power or right attributed to a person to claim something, there being a special relationship between the affected object and the person who actively claims (active legitimation) on the one hand and the person who is the recipient of said claim ( passive legitimation). Therefore, the parties involved in a conflict, whether it is a trial or not, as parties will act by active or passive legitimation, depending on which side they are on.” In our case we will always speak of “active legitimation”, since both parties and the mediator must be legitimized to initiate a process that must proactively lead to the search for a mutual agreement, which they must reach. the parties themselves, but in which the role of the mediator is essential for this to occur.
It is important to highlight that when we talk about “legitimation”, this is one of the most debated and most confusing terms in procedural law and if we are in other disciplines, what can we say about the terms: capacity to intervene in the process, need for assistance from lawyers in sessions, ability to intervene, validation of the parties and many others that may arise as synonyms of legitimation.
It is true that it is closely related to the idea of capacity, but it differs from it in that while capacity defines the general conditions to intervene in the process, that which is presumed in the mediator when he intervenes, but legitimation determines the conditions. necessary to be able to participate in a specific process and that arises from the fact that the parties in conflict believe in you, validate you, legitimize you, are convinced that you can be the key that will finally bring about negotiation, communication and the search for consensus. .
That is why many times, when we are aware of a conflict, one of the many that our society unfortunately experiences today, we do not consider who offers itself. as mediator to try to find a solution, but rather, who would the parties legitimize so that the desired meeting can occur?
For me it is as important as getting many times that someone looks for us, for references, or simply because they have talked about us and we ask them: what and how can I help you? Let's get the other party to come, legitimizing ourselves, because in an artisanal way, we have managed to get them to come, without us calling them ourselves. It is not the same to ask them the question before it is this second affected party, the one that tells us: why did you call me?
Difficult, right? That is why in my workshops I pay special attention to that moment, because it does not constitute a presupposition of the right to the mediation process, but rather a requirement of the action that is exercised in the process, which derives from the parties who are in conflict, They see in you the ideal professional, with the tools we have, to intervene in it.
Simplifying what I want to convey, I want to refer to legitimation ad causam and ad processum. In the first, it is the parties that legitimize each other to validate that the meeting for dialogue and debate can occur; In the second, they are the ones who legitimize us as supporters of the process that we are going to follow and as I say, not only of the process, but that we are the professional and the ideal person for it.
Therefore, legitimation and capacity will go hand in hand and require special attention from you, because it will be a large part of the base from which you can build something that allows them to improve their relationships, that they understand each other, even if they do not share and that they delve into a possible agreement. Welcome to the professional mediation.
¡If you want to open doors to the world of mediation, this is your place!
