Volume 13 – 2020, Nº. 2

This paper attempts to analyse the impact of the health crisis we are currently going through on the empowerment of voices advocating for the promotion of mediation for conflict resolution. In many cases, and anticipating the increase in litigation, for instance in consumer matters, horizontal property, banking, leases, small claims, modifications of measures, executions in family proceedings, etc., using mediation may contribute to quick and effective resolution between individuals and even professionals. However, the promotion of mediation should not be envisaged exclusively to face this health crisis, but it should be used as a measure that should be maintained in the future to the detriment of the current juridification, contributing, thus, to relieve courts and tribunals, submitted long to a lack of human and material means to face an excessive work load.

Since 2003, the author has been practicing, as an integral part of his mediation model for deep-seated interpersonal conflicts, what he thought was the active listening model taught by Carl Rogers. But after many years he discovered that he has been practicing a very positive alteration of the model based on his wrong understanding of Rogers’ seminal book, Client-Centered Therapy (1951). In essence, it is a king of fluid empathic listening in which the mediator does not interrupt an individual’s venting (this takes place during a pre-caucus, with each individual separately). Empathic reflection occurs when the mediator allows the parties to be heard in a non-judgmental way. Being heard in such a manner enables them to see things more clearly and consider how they might have contributed to the conflict. Also, this gives them strength to put pride aside and see the other person in a more positive way. This innovative practice yields valuable results within the context of interpersonal conflicts.

Human diversity might have a significant impact on mediation processes; however, the linear, transformative and narrative models widely used in the West were not created to determine such an influence. Giménez Romero’s Multifactorial Approach is the only methodological tool identifying the diversity of the personal, cultural and situational factors in a mediation process in order to target their influence. For this reason, the question one might ask is: Is it possible to identify the personal, cultural and situational factors that significantly impact a mediation process by integrating Giménez Romero’s Multifactorial Approach into the linear, transformative and narrative models? Results shown that integrating the multifactorial approach to the narrative model was more efficient as it allows to identify the personal, situational and cultural factors linked to how the conflict originated and persisted, as well as the entire communication process and long term relationships.

Power is a fundamental concept to analyse social and relational processes, therefore, it plays a key role in conflicts. The relationship of people involved in a conflict is also influenced by power dynamics, rank and privilege. Using rank and power by the parties in a conflict determines the evolution of the conflict, and they also have an impact on escalation and de-escalation actions, and the mediation or conflict management process. Learning how to integrate and live with diversity means managing rank and power in relationships.

This paper aims to deal briefly with the meaning of so-called Restorative Justice; differentiate it from one of its manifestations, penal mediation (the most relevant and most currently used process, with greater possibilities to be implemented in our criminal justice system in the future); as well as rebut some of the usual objections that the procedural and penal doctrine adhere to when facing the possibility of having our legal system accept this instance in a significant way. We gather that the traditional assumption of ADR (Alternative Dispute Resolutions) should be nuanced in the Spanish Criminal System and opt for the expression Adequate Dispute Resolution, thus assuming this form of penal mediation as integrated into the criminal process and not considered separately as a substitution or alternative.

Over the last years, the European victims’ policy has been promoting access to Restorative Justice as a useful tool able to produce positive outcomes by creating a space that is receptive to the victims’ interests, particularly in terms of economic and moral reparation, whose achievement is not entirely guaranteed through criminal proceedings. After long years of experience, this paper aims to analyse and underscore the actions lines set out in the latest Council of Europe legislation, Recommendation CM/Rec(2018)8 on Restorative Justice in Criminal Matters, as well as, on an national level, point out some of the items that might be slowing down the progress of Restorative Justice and Penal Mediation in Spain.