"People do not resort to mediation to decongest the courts, they go because they believe it is a good way to resolve their conflicts."
Eva Susana Fernandez He is a specialist in resolving family, civil, commercial, business and public administration conflicts. In addition, she is the founder of Tarc, the first private mediation center approved by the Generalitat of Catalonia, and completed a master's degree in Alternative Conflict Resolution. He is also a member of the Illustrious Bar Association of Barcelona and the Mediation Center of the Department of Justice, where he is also part of the group of experts in family and intrajudicial mediation. He has more than 10 years of professional experience in conflict management in the private and public spheres.
Can any mediator handle any conflict or are different specializations required for each type of confrontation?
A: There is an open debate about whether the specialization of the mediator is necessary or if, on the contrary, it is not. I think it is important that the mediator knows and feels comfortable in the area in which he is going to intervene, but In my opinion, it is not an essential requirement that it be specialized; In fact, this allows you to appreciate broader aspects that facilitate the resolution of the conflict. Nor should we forget that other professionals can intervene in mediation with the function of advising on any doubts that may arise.
What limitations could the figure of a mediator have in resolving a conflict?
A: If we talk about external limitations, I would highlight the following:
- Within a private office, it would refer to situations in which the request for mediation is only made by one of the parties in conflict and the mediator has to contact the other party and invite them to mediation.
- In Tarc We assume that in order to satisfactorily resolve a conflict, the parties must be well informed (what rights and obligations they have regarding the situation, what legal options they have, what the statutes of a company say in this situation, whether they can be done or not. a works, etc.). Sometimes, We find that the parties do not go to professionals for advice, and that sometimes limits and makes it difficult to manage the conflict..
- And finally, I would like to highlight the importance that all professionals who intervene directly or indirectly (lawyers, notaries, psychologists...) must be on the same line or philosophy regarding conflict resolution. In this sense, we establish collaboration synergies with different professionals who share this way of solving.
Regarding the internal limitations of the mediator, I would highlight the basic training. By this I mean that, if I am a lawyer, I have a tendency to see conflicts from a legal perspective (even though I have been trained in emotional management) just as a psychologist tends to see them from an emotional point of view (even if I have legal knowledge). . This is why we work with a multidisciplinary team, in this way we approach the conflict from all aspects.
What are the strengths and weaknesses of Law 5/2012 on civil and commercial mediation?
A: I consider that Law 5/2012 is a correct law that generally establishes the framework in which mediation must be developed, although we will have to wait for its development and detailed regulation through the Regulation. I would like to highlight as positive the effects on the expiration and prescription periods of actions regulated in Art. 4, since there was a resistance that existed to go to mediation from a procedural point of view.
I would like to clarify that the promulgation of this law has served to give an important boost to the development of mediation, as well as to extend the existence of this way of resolving conflicts, not only towards citizens in general, but also towards institutions and organizations ( whether public or private). Without forgetting that it has allowed institutions and authorities to, with legal support, refer conflicts they are aware of to mediation. It remains pending to coordinate the coexistence of this regulation with that existing in the different autonomous communities.
[quote style=»boxed» float=»left»]«Two companies in conflict discovered through mediation that both had been defrauded, something that would not have happened in a trial»[/quote]
In Art. 4 of the Mediation Law, a maximum period of 15 days is stipulated from the receipt of the mediation request until the holding of the session. Do you think that this period is sufficient? Do you consider that electronic media should be a commonly used instrument to expedite procedures?
A: In my opinion, the established period of 15 days is sufficient for the parties together with the mediator to begin the mediation. We must not forget that one of the benefits of mediation is agility.
Regarding the use of electronic media, there are detractors based on the very personal nature of mediation, since in-person communication between the parties is vital; However, I consider that The use of technologies can be very useful and, of course, they can speed up certain procedures. However, we will have to see how it is developed and in what cases it is used in order to evaluate its use.
What expenses are usually the most common during a mediation process (leaving aside the mediator's own remuneration)?
A: The expenses that may arise from a mediation process will depend on the area we are talking about, a family mediation in which the parties reside in the same municipality is not the same as a cross-border mediation; and the professionals involved in it (lawyers, experts, psychologists, administrators, notaries...).
Will this law influence the saturation of the courts in Spain?
A: It is quite common to say that the reason why mediation is being promoted is to decongest the Courts and Tribunals, but I think that approaching mediation from that point of view is wrong. It is evident that if conflicts are resolved outside of judicial bodies, the courts will become less congested. However, People do not resort to mediation to decongest them, they come because they believe it is a good way to resolve their conflicts.. The reasons for this can be diverse: because there is a relationship that must last over time, because they want to have control over the conflict themselves, or simply because the person who has recommended it to them generates trust.
Could you relate a case of success in the exercise of your profession?
A: In mediation sometimes things happen that surprise the parties themselves. A commercial case came to our office in which two companies had been involved in civil lawsuits for more than a year and were preparing to initiate criminal proceedings, but at the judge's suggestion they decided to participate in a mediation process. In her They discovered and acknowledged that both had been victims of a scam by a third person. This allowed them to reach an agreement in less than a month.. This information surely would not have emerged in a trial.
[quote style=»boxed» float=»right»]«It is important that the mediator knows and feels comfortable in the area in which he is going to intervene»[/quote]
Do citizens have enough information about what mediation is to consider this alternative before going to court?
A: The development of mediation in Spain, in recent years, is unquestionable. It is true that there is still some resistance to going to it as the first option when you have a problem, which responds to different factors; and one of them, but not the only one, may be that there is indeed a lack of knowledge about mediation and the role of the professionals who develop it.
Today, what types of conflicts are the most frequent in mediation?
A: Beyond talking about a specific type of conflict, I believe that what the conflicts that reach mediation have in common is continuity over time. In general, mediation is attended by those people, companies or organizations that have a conflict and, for whatever reason, there is a relationship of interdependence, that is, cases of divorce if we talk about family, compliance with contracts in the business field, problems within teams if we talk about organizations…
Is it difficult to get the parties to trust the neutrality and work of the mediator?
A: One of the skills or functions that the mediator has is to generate trust.
If we talk about trust in the process and in the professional, it is not especially difficult to achieve it when “the rules of the game” are clearly explained to people. That is why it is very important that these aspects are clear in the first session.
Much more complicated is to restore the parties in conflict to a degree of trust between them that allows them to constructively manage their conflict.
Finally, what job expectations do you think the Mediation Law generates?
A: As I mentioned at the beginning, mediation has developed a lot in recent years. We are in a period in which professionals, institutions and authorities are betting on its implementation. However, Today it is not a consolidated profession. As Antonio Machado said, “walker, there is no path, the path is made by walking,” and that is what I believe is happening with mediation, we are walking to build the path.
