Mediation is a process in which consensual agreements are reached for interpersonal conflicts, either intrajudicially or extrajudicially, with the mediator as a guide throughout the process.
The agreement reached in a mediation process has the same legal validity as a contract between parties, with which each person must comply with the conditions established in the mediated agreement, the terms of this agreement having a binding nature and therefore being mandatory for the parties.
If there has already been a previous lawsuit, that matter is judicialized and therefore the mediation would be intrajudicial. When the judicialized conflict ends with a mediated agreement, the parties can withdraw the lawsuit or continue with the judicial procedure by providing the agreement to the case file so that its terms can be included in a sentence. You can also go to a notary to elevate it to a public deed and give it the value of res judicata. Opting for one option or another will depend on the circumstances of the parties, since a divorce agreement with minor children requires going through court so that the prosecutor's office can review the agreements that will be included in the regulatory agreement, always keeping in mind to ensure the well-being of minor sons and daughters.
What happens if a mediated agreement is breached?
When a mediated agreement is breached, the ideal is to return to mediation to review the agreed conditions and adapt the agreements to the current circumstances of the parties. However, there are cases in which it is not possible to mediate again after repeated non-compliance and not justified of the agreement established in mediation. In these cases, it is especially important that the agreement has been passed through the court or notary, since this step gives the agreement more force in the event of non-compliance, and the court may be asked to force the other person to comply with the conditions agreed upon in mediation. .
This is the usual procedure, especially in cases of intrajudicial mediation and on many occasions also in cases that are not judicialized but whose passage through the court or notary office is used as a guarantor of compliance. Examples of these cases can be the separations or divorces with or without children, distributions of assets, family inheritances, agreements relating to the use of property or management of companies, commercial agreements, labor matters (especially dismissals), etc.
What matters are not raised to public deed?
On the other hand, there are certain types of cases that are not usually judicialized and in which the mediated agreements do not usually become a public deed or go through the court, remaining an agreement that has the effect of a contract between parties.
A large part of these cases tend to be family matters, which arrive through extrajudicial means and do not require homologation of the agreements reached and at the same time their protagonists do not intend to elevate them to public deed. These cases can be conflicts between fathers and mothers with teenage sons or daughters where rules of behavior are agreed upon or intra-family discipline is established, the distribution of tasks within a family or a family business, the redistribution of tasks among someone's relatives. who is temporarily in a situation of dependency, the establishment of an organizational system for the tasks that involve the arrival of a new member to the family or the assumption of tasks that were previously carried out by a relative who has died.
Outside the family sphere there is also a typology of cases in which mediated agreements are not usually raised, among them are neighborhood conflicts over the use of common spaces, noise, presence of pets, conditions of use of community areas (areas landscaped areas, swimming pools, sports courts, etc.). It also usually occurs with typical cases of school, intercultural, social or even work mediation. In all these cases, the conflicts can include a high emotional burden, the process is finalized with a consensual agreement but the established agreements are not usually raised to public deed.
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The article is very interesting and instructive. Regardless of the family matters and the agreements reached with the opposing party, whose approval, I believe, is essential for them to acquire executive force, for cases in which one of the parties fails to comply with them; Also, it would be recommended that agreements on neighborhood and social and cultural issues should be elevated to Public Deed (not to say homologate them judicially, which would entail more delay), so that the parties feel with a greater commitment and, therefore, , would be more forced to comply with those agreements.
Well, it is a very widespread custom that if there is no fear of harm or reproach, social, economic or any other type, people forget about their commitments and end up breaking them.