When faced with any family law matter (especially in cases of divorce or separation and especially when children are involved), the best solution is one that takes us away from the courts.
Reaching an amicable solution is not only faster and cheaper, but 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 bets more and more on mediation in this type of cases.
In this way it is possible to alleviate the burden of the courts, to shorten processes and to reach more lasting solutions than those that pass through the hands of a judge.
And we must not forget that, in 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.
A few months ago we already talked about it in relation to the Preliminary Draft Bill for the Promotion of Mediation, a text that was approved by the Council of Ministers last January 10, 2019 and that promises to give a definitive boost to mandatory family mediation. We will also review some of the novelties that this text could bring by the hand. You may be interested in: Video: Family Lawyer Elena Crespo Lorenzo receives the Medal for Professional Merit from ‘Diario de Mediación’.
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 (two or more persons) avoiding the need to go to court.
There are multiple ways to implement 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.
A 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 neutrality towards the specific case…
We believe that this is the best formula for reaching agreements and we are committed to a practice of law that promotes dialogue and empathy to reach real solutions and as permanent 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 office.
We are specialists in family mediation in Barcelona.
In this sense, the Draft Bill for the Promotion of Mediation aims at the definitive implementation of mediation as a complementary figure of the Administration of Justice for the extrajudicial resolution of conflicts in the civil and commercial fields in a more agile way and with a lower economic and personal cost for the parties. The promotion of mediation also seeks to decongest the workload of the courts and thus shorten the response times of Justice.
Perhaps the most important bet of this legal text is to change from the model of mediation currently in force -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 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 work dynamics to be followed in the event that it is finally agreed to continue the 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 resorting to 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 to access the judicial process, but does not imply an obligation to undergo a full mediation process or to reach an agreement that puts an end to the dispute.
What is the purpose of family mediation?
Family mediation improves the quality of the judicial response and the future of the people, such as separated or divorced, who carry it out and, above all, that of their children.
In this sense, the purposes pursued with it, according to our General Council of the Judiciary (CGPJ), are the following:
- Building relationships and fostering communication, increasing psychological and personal satisfaction.
- To reduce tensions and promote peaceful behavior, encouraging cooperation.
- Limit negative consequences for children by facilitating:
- Assuming the new family situation.
- Your right and need to have both parents is guaranteed.
- Feelings of guilt are avoided.
- Provide them with age-appropriate information.
- Allow responsibilities to be assumed by the participants.
- Adjust agreements or options to actual needs.
- Avoid winner/loser sentiment.
- Encourage flexibility and collaboration in the face of change.
- To reduce the affective, economic and temporal cost.
- Achieve a high level of compliance with judicial decisions.
In which cases will family mediation be mandatory?
With the future regulation, in principle, the matters that can be subject to mediation are framed in the civil and commercial fields and are characterized by responding 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 marriage, separation, divorce or those relating to the guardianship and custody of minor children, alimony claimed by one parent against the other on behalf of minor children (unless a proceeding for a crime related to gender violence had been previously instituted);
- Liability for professional negligence;
- Successions;
- Judicial division of assets;
- Conflicts between partners and/or with the management bodies of commercial companies;
- Claims in tort liability matters not arising from a traffic event (protected by the Law on Civil Liability and Insurance in the Circulation of Motor Vehicles);
- Food between relatives;
- Horizontal property and communities of property;
- Rights in rem over something else;
- Distribution, agency, franchise, supply of goods and services contracts, provided 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 a consumer act (protected by the General Law for the Defense of Consumers and Users);
- Construction defects arising from a construction lease contract;
- Protection of the rights to honor, privacy and self-image;
- Lease proceedings to be heard through the ordinary trial.
What will the family mediation process be like?
As to how the out-of-court mediation procedure will be developed, it is left to the initiative of the plaintiff to propose the mediator and a transparent mechanism of appointment is articulated if the mediator is rejected by the opposing party.
There will be a maximum limit of three months for the complete development of the mediation process, during which the statute of limitations and expiration of the actions will be suspended.
Intra-judicial mediation is also established, which will take place when the judge or court, after analyzing the case, considers that an alternative to the trial may be more satisfactory for the parties, provided that no attempt at mediation had been made prior to the commencement of the process.
It is decided not to suspend the course of the judicial process. Turn to our family lawyers in Catalonia to resolve your family law issues.
