The statute of civil and commercial mediators

Abridged version in English of the original


This article analyses the many aspects related to the statute of mediators following the order of Section II of Act 5/2012, of July 6, on the Mediation in Civil and Commercial Matters, starting with the conditions required to practice mediation and the important role that intuitions must play in terms of mediation quality; then, the role of civil and commercial mediators is analysed and their action in the mediation process, to end talking about the liability mediators can incur in when practicing their professional tasks, as well as the mediation institutions they provide services to.


Keywords: mediator, training, quality, professionalism, liability

This article addresses, first, the importance of legalised family conflicts and the need to provide a quality response to these conflicts by the legal system. The authors detail the initiatives started by the Family Court 5 in Malaga to meet this goal, and how there are grouped in a larger programme that received in 2010 the Justice Quality Award of the General Council of the Judiciary. One of the initiatives proposed that was implemented is the creation of the In-court Family Mediation Service this article refers to.

This section describes how the Malaga In-court Family Mediation Services works since it was created in 2000 to date, and how it evolved in the last 14 years. The legal framework of this kind of services is dealt with from a procedural point of view and the organic point of view so that its implementation has an appropriate legal coverage, underlying the importance of passing Act 5/ 2012 on the Mediation in Civil and Commercial Maters. The topics covered are: how information about the Service is spread, and how selection is made of the cases to which an informative on site meeting invitation is made, before making an analysis of the vast experience of dealing with over 500 these informative on site meetings.

An informative on site meeting is a key element in the service that is used to inform about the mediation and its advantages, and where other relevant topics are addressed

  • The informative on site meeting is justified by the accountability towards children: it is a moment in which citizens see the consequences of what is happening, the way they are “discussing” and how this affects their children.
  • The informative on site meeting is considered a space for communication and dialogue: given that the informative on site meeting is conducted in a room prepared for the intervention with children, decorated with child furniture, the parties do not expect to meet in an environment that reminds them of their children.
  • The informative on site meeting has an educational and learning function as new terminology is transmitted: co-parenthood, time distribution, parental accountability, joint custody, shared responsibility, rights and obligations of the parental authority, which are normally not known by them.
  • The informative on site meeting eliminates the unjustified fear of mediation lawyers have when it is perceived as possible unfair competition or as professional encroachment. Often informative on site meetings can be used as a “meeting point” for legal counsellors to start negotiating, as they meet for the first time at that moment.

Special attention is given to the variables proper to in-court mediation detected in an informative on site meeting in the framework of the mediation and there is an attempt to compensate or balance them during the mediation process itself:

  • The previous expectations each party had concerning the process.
  • Biases concerning decisions made by the citizens themselves (consensual process) versus the overvaluing of the judicial decision as a preferred solution (non-consensual process).
  • Previous creation of procedural strategy by the lawyer, reaffirming the fixed position of his client.
  • Previous attempts of negotiation by the lawyers that prolong in time, leading to excessively hard conflicts between the parties, holding to positions and with an urgent need to find an “imposition” solution.
  • Fear to lose if they give things up.
  • The existence of a certain degree of previous uneven burn-out and unpleasantness.
  • Unbalance of one of the parties between what is judicially requested in an initial position and what the party really wants or can do, which increases the gap and mistrust between the parties.
  • Overvaluing one’s own situation, exclusively proposing unilateral solutions.
  • High level of previous confrontation, blackmail and use of the judicial system as a “threat”.
  • Mediation requires to be developed in “its own time” which is not always procedurally possible. The strong initial resistance of these legalised conflicts need time to “move”, time that is not always given by the parties who blame mediation for this failure.
  • The previous expectations each party has created concerning the process.

To conclude with informative on site meetings it is worth noting that the collaboration of lawyers to use mediation is important as they are normally the first person to be contacted by those who want to separate. At informative on site meetings we have encountered all kinds of lawyers: collaborative, sceptical, spoiling, instigating, negative, directive, competitive, authoritarian, mistrusting, negotiator, passive, conciliating, committed. However, an increasing number of lawyers perceive and detect that mediation in judicial processes make these to be less conflictive, that their fees are not affected and that it is beneficial for them as processes are shorter and their fees are paid earlier.

The first section of the articles ends with an explanation of how issues in which an informative on site meeting was offered are referred/returned, according to the different hypothesis that might occur: the couple does not attend the informative on site meeting, the couple attends but does not want to use mediation, or the couple attends, accepts mediation and once it ends no agreement was reached or a total or partial agreement was reached. In the latter cases, the article explains how the family mediation process is articulated depending on the fact that the process was suspended or not and if the process is in the depositional phase (before a decision is made) or in the implementation phase.

In the second section of the article, the most relevant statistical data of the Service of the years 2010-2013 are presented: subpoenas to informative on site meetings, the number of couples that attended, issues referred to mediators associations, and the number of agreements reached. A second table presents the survey carried out on the procedural effects of the mediation activities conducted at the Service, and verification is made of how this activity generates favourable procedural “effects” in the mutual agreement or partial agreement cases. Also, it is explained that part of the mediator’s work success is hidden behind the statistical item called “no agreement” when actually an agreement is reached and it is included in the process itself where the mediation is integrated. Using colloquial terms, we could say that the seed the mediator sows blooms not in his own garden by in someone else’s.

The article ends pinpointing that the following conclusions can be drawn from the experience gained:

  • Only information about mediation and its advantages, using brochures, audiovisual material and conduction the informative on site meeting, generates a clear favourable effect in the process. In this connection, the idea is reinforced that mediation can contribute to initiate or unblock a “negotiation” outside the mediation between the parties, especially when the informative on site meeting is attended by the respective legal counsellors.
  • The important number of issues that become consensual processes or total agreement between the parties is an indication that there is a certain “resistance” to sign the mediation agreement before the mediator.
  • According to the above, and as we suspected, we can see that some of the results of the mediation (beyond the result achieved because of the transformation and improvement in interpersonal relations) are not reflected in usual statistics, as these are normally focused on the agreements that were reached.
  • It would be necessary that at least in the field of in-court mediation, statistics or studies on the impact of mediation should somehow reflect this variable.
  • In-court family mediations are indispensable to be able to give a quality response to family conflicts.
  • Assessing the success of the in-court family mediation must go beyond counting the number of agreements reached.
  • The in-court nature of this kind of mediation provides it with special characteristics that imply specialised training of mediators.

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