«Unlawful acts», or their perception in the sense of «direct violence acts», in other words, the violation of norms as «the accepted rules of the game», are not an exception but rather the legal requirement of all the legal «pharmacopeia» of ADR, including mediation, are another tool. The tasks of a mediator, like those of policymakers and many other that are not necessarily carried out by legal experts, is a legal task as they cooperate in that the parties settle to put an end to conflicts. Rejecting the norm because of the incorporation of mediator in the field of gender-based violence requires rethinking it from an axiological perspective, and this article is just a first approach to it.
Keywords: Gender-based Violence. Restorative Justice. Structural Violence. Mediator Code of Ethics. ADR
This article is a first approach to an axiological assessment of the legal ban of mediation in gender-based cases (Organic Law 1/2004, of December 28, on the Integral Protection Measures against Gender-based Violence. B.O.E. num. 313 of December 29, 2004).
Legislators consider that physical violence against women is nothing but the visible tip of the iceberg, like Galtung (1999) very well affirms, of gender-based discrimination; however, when establishing the jurisdiction of Courts, they have decided to not only limit the scope to retributive justice but to expressly ban mediation and eliminate all possibilities of restorative justice.
Mediation is a legal instrument made available to citizens through the courts for a better solution of differences. Due to its nature, the task of a mediator who works with ADR cannot be separated from the jurisdictional activity; therefore, the only mediation system possible for administrative and criminal cases seems to be the in-court one.
A Matter for Debate: The Spanish Law.
Organic Law 1/2004, of December 28, on the Integral Protection Measures against Gender-based Violence (B.O.E. num. 313 of December 29, 2004) establishes the jurisdiction concerning criminal and civil cases, expressly excluding mediation for all these cases and limiting the fight against discrimination to its physical and psychological aspects.
Johan Galtung (1999) affirms that direct violence (physical and psychological violence is only a part of it) is just «the tip of the iceberg» of the «Violence Triangle».
«Conflict» in the figurative sense of the word «fight», i.e. the dynamic balance between confronted forces, is the natural normal healthy state of any society or individual, and also the state of the matter itself, its molecular and atomic structure.
In order to find the main characteristic of an inevitable «conflict», the natural force of a «dispute», we need to rely on the scale of a specific legal system, i.e. when the forces in a «conflict» believe that one of them has breached one or several «rules of the game». This is what we call «legal system». A simple fight becomes a «dispute» that requires a solution; the list of solutions for «disputes» include, undoubtedly, ADR.
What we mean is that, for mediation to be used as any other ADR or in the jurisdictional activity, there must be someone that perceives one behaviour as the expression of a breach of the legal system, i.e., there must be some form of direct violence.
Violence, including physical violence, only opens the door of traditional or alternative solutions to conflict when these are defined as disputes concerning a specific legal system, i.e., concerning a specific status of the evolution of a community that sets its own rules of the game.
Retributive Justice vs. Restorative Justice.
Our legal system is based on the idea of one form of justice that has been called retributive justice. However, our cultural evolution made us to create the concept of restorative justice, which could be defined as a way that promotes a more involved role of the parties in managing the consequences occurred as a result of an unlawful act. The voluntary reparation of the victim acquires, according to this new concept, a decisive role, as it offers the perpetrator the opportunity to compensate the victim for the harm, and the victim to be compensated for in an effective way. In restorative justice, the perpetrator has the opportunity to move from a passive figure of the punishment to positively act to compensate the victim and the community for the harm caused (Fernandez & Solé 2011).
Mediation is the response used by society to this end. It works to transform the way people communicate with each other, to perceive the other as others, and to empower people to enhance their human dignity.
However, the legislator considers a multidisciplinary task and that physical violence against women is only the tip of the iceberg of gender-based discrimination, like Galtung (1999) very well explains which has hindered the possibilities offered by restorative justice like ADR and especially mediation. Is there any legal technical reason to explain that?
Civil and Commercial Law; Labour Law; Administrative Law; Criminal Law. The So-called «Law and Order».
At a local level, the Mediation Act deals with civil and commercial mediation, but this temporary situation in Spain cannot lead us to lose sight of any of the following elements:
- The field of application of ADR is broader than that of civil and commercial matters.
- As ADR are part of the legal instruments available they must naturally be adapted to the branch of the law they will be applied in.
Thus, while the abovementioned Act presents a regulation for free practicing mediation, and while there is no professional association of mediators to date although there is a Mediators Registry at the Ministry of Justice of Spain, there are practically no provision that regulates in detail the so-called «in-court mediations». It seems though that no mediation system is possible to deal with administrative and criminal matters other than the in-court system.
Indeed, there is no mediation without hostility; there is no mediation without violence. No legal instrument is activated to solve a dispute if there is no dispute. And all disputes are an expression of a perception of unlawfulness, of violence.
Does mediation lack tools to face gender-based violence? No, of course not. On the contrary, it is precisely up to mediation, which is multidisciplinary and flexible per se, to adapt tools such as the single document (perhaps the origin of mediation like we know today), that is, a document that contains a settlement written by the mediator without the parties, victim and perpetrator, having to simultaneously be present at any time.
Can we imagine what the reasons are to legally ban mediation?
The first reason that spring to mind to understand banning mediation in gender-based cases is not mistrusting the technical instrument but thinking that the end of mediation is simply settle, any kind of settlement.
The trite and repeated neutrality obligation of mediators, and the impartiality of judges, cannot be an excuse to endorse that in a mediation process any kind of settlement should be achieved; neither can judges shield themselves behind the text of the law to favour the strongest against the weakest and to legitimate extortion.
The Act that rejects the presence of mediation should be understood as the call of Odysseus trumpet to raise awareness among the mediators and reinforce their commitment to the Rule of Law, their role of main actors in the legal instrument of mediation, regardless of the basic profession of the person involved.
The fact that this stammering act passed by force of law as a minimum requirement in order to avoid sanctions from Europe, establishes settlements in a stage after the formal closing of the mediation process, and this must not make mediators think that they are alien to the substantive content of agreements and to the incorporation of these agreements into the axiological structure of society.
Mediators, as guarantors of the neutrality and balance between the parties, and also as guarantors of the legality of the settlements reached, cannot and must not turn a blind eye on abuse and extortion.
Putting mediators aside of their commitment to the democratic legal system that informs and regulates them is like creating a fifth column that endorses violence by giving it a façade of legality; this is anti-legal behaviour.
Mediators cannot become a stopgap for visible violence that laminates and informs the deep-rooted violence the legal system is called to correct and eliminate.
Because, if mediation is no longer a teaching creation or if it is the Taliban wonder in which it has tried to take refuge to enjoy false eternity, mediation must and could taste the troubled waters of prescriptiveness in proprietary or civil and commercial matters, and it should be extended to labour, administrative and criminal matters, not to achieve negative social peace, a mere absence of violent conflicts, but it must be directly, strongly and sincerely involved in seeking collaboration and mutual understanding relations to achieve positive peace, i.e., collaborating firmly and courageously with the social democratisation process we are all involved in.
Like the myth of Achilles, we risk to believe that mediation that came to life very recently, especially in our country, faces a dilemma: to remain closed and comply with the wishes of its wise ushers in the local environment, seeking unattainable excellence and purity, or to continue the path and expand horizons both among individuals and the Courts, especially in the field of criminal justice.
But this should involve also the commitment that is proper to all legal tools: an axiological involvement.
With this article we urge you all to follow this not very safe path, especially all these excellent legal operators that are called Mediators and whose voluntary Registry can be found at the Ministry of Justice of our nation.