When faced with any family law issue (especially divorce or separation cases and especially when children are involved), the best solution is one that takes us away from the courts. #Mediation #Family #Divorce
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Reaching an amicable solution is not only quicker and cheaper, it is also much friendlier for the parties involved and becomes a real necessity if there are children in common. That is why our legislator increasingly relies on mediation in such cases. In this way, the burden on the courts can be eased, processes can be shortened and more lasting solutions can be reached than those that go through the hands of a judge.
It should not be forgotten that, in the case of contentious divorce or separation (i.e. those in which there is no agreement between the parties), it is the judge who makes the final decision based on the requests of each party, and this solution does not always find the perfect intermediate formula for the couple.
That is why in this post we explain what family mediation is and, specifically, how it helps in case of divorce or separation.
In 2021, the Draft Bill for the Promotion of Mediation was published, a text that was approved by the Council of Ministers on 10 January 2019 and which promises to give a definitive boost to compulsory family mediation. We will also review some of the new features that this text could bring.
What is family mediation?
Family mediation consists of the use of this alternative method of conflict resolution in the field of family law. The objective is to reach a comprehensive solution to a conflict between parties (it can be two or more people) avoiding going to court.
There are many ways of implementing this type of process, and different countries around the world apply it in different ways, always pursuing the same goal: to reach a lasting and fair agreement, the result of compromise and understanding between the parties.
Good family mediation should therefore be based on certain principles that help the parties, such as orality, full communication between the parties, the impartiality of the mediator and his or her neutrality with regard to the specific case...
We believe that this is the best formula for reaching agreements and we are committed to a legal practice that encourages dialogue and empathy in order to reach real and as permanent solutions as possible. Listening to the parties, trying to reach a middle ground, applying resources from the world of psychology to improve the process... are a constant and personal commitment in our firm.
In this sense, the Draft Bill for the Promotion of Mediation aims to definitively implement mediation as a complementary figure to the Administration of Justice for the extrajudicial resolution of conflicts in the civil and commercial fields in a more agile way and at a lower economic and personal cost for the parties. The promotion of mediation also seeks to reduce the workload of the courts and thus shorten the response times of the justice system.
Perhaps the most important aspect of this legal text is the change from the current model of mediation - based on its exclusively voluntary nature - to the so-called 'mitigated obligatory nature' model, which obliges the litigants to attend an informative and exploratory session in the six months prior to the filing of the lawsuit in a set number of matters.
This session will be conducted by a mediator and will be aimed at exploring both the matter in dispute and the initial positioning of the parties, who will receive clear and precise information on the procedure, the working dynamic to be followed in the event that it is finally agreed to continue with mediation and its benefits compared to the judicial process in terms of time and cost savings. Mediation does not require a lawyer or solicitor and the economic cost of using a mediator is estimated to be much lower than what the parties would incur if they opted to go to court.
This out-of-court mediation is therefore conceived as a necessary step before going to court, but it does not imply an obligation to undergo a full mediation process or to reach an agreement that puts an end to the dispute.
What are the aims of family mediation?
Family mediation improves the quality of the judicial response and the future of the people, such as separated or divorced people, who carry it out and, above all, that of their children.
In this sense, the aims pursued with it, as indicated by our General Council of the Judiciary (CGPJ), are the following:
To build relationships and encourage communication, increasing psychological and personal satisfaction.
To reduce tensions and promote peaceful behaviour, encouraging cooperation.
To limit the negative consequences for the children, facilitating:
Assuming the new family situation.
Their right and need to have both parents is guaranteed.
Avoiding feelings of guilt.
Providing them with information appropriate to their age.
Allowing responsibilities to be assumed by the participants.
Adjust agreements or options to real needs.
Avoid winner/loser feelings.
Encourage flexibility and collaboration in the face of change.
To reduce the emotional, economic and time costs.
To achieve a high degree of compliance with judicial decisions.
In which cases will it be compulsory to resort to family mediation?
With the future regulation, in principle, the matters that may be subject to mediation fall within the civil and commercial spheres and are characterised by the fact that they respond to conflicts arising from personal or commercial relationships sustained over time.
Thus, it will be necessary to try mediation before going to court in the following types of actions:
Measures adopted on the occasion of the declaration of nullity of the marriage, separation, divorce or those relating to the guardianship and custody of minor children, maintenance claimed by one parent against the other on behalf of the minor children (unless proceedings for a crime related to gender violence had been previously instituted);
Liability for professional negligence;
Inheritance;
Judicial division of assets;
Disputes between partners and/or with the management bodies of commercial companies;
Claims in matters of non-contractual liability not arising from a traffic event (protected by the Law on Civil Liability and Insurance in the Circulation of Motor Vehicles);
Maintenance between relatives;
Horizontal property and community of property;
Rights in rem over another's property;
Contracts of distribution, agency, franchising, supply of goods and services provided that they have been the subject of individual negotiation;
Claims for amounts of less than 2,000 euros between individuals when they do not arise from an act of consumption (protected by the General Law for the Defence of Consumers and Users);
Construction defects arising from a construction lease contract;
Protection of the rights to honour, privacy or one's own image;
Lease proceedings that have to be heard through the channels of the ordinary trial.
What will the family mediation process be like?
With regard to how the out-of-court mediation procedure will be developed, the task of proposing the mediator is left to the initiative of the plaintiff and a transparent appointment mechanism is articulated if the mediator is rejected by the opposing party. There will be a maximum limit of three months for the full development of the mediation process, during which the statute of limitations and the expiry of the time limit for actions will be suspended.
Intra-judicial mediation is also established, which will take place when the judge or court, once the case has been analysed, considers that an alternative to the trial may be more satisfactory for the parties, provided that there has not been an attempt at mediation prior to the start of the process. It is decided not to suspend the course of the judicial proceedings.
If you find yourself in a situation of divorce or separation, family mediation can be a valuable tool to resolve conflicts amicably and efficiently. Our law firm in Malaga is ready to help you understand how family mediation can benefit you in your situation and guide you through the process. Do not hesitate to contact us for more information and start resolving your conflicts peacefully today!