Professional mediation services
Although family mediation services can be very favourable, especially in judicial separation and divorce processes, it is also possible to go to the mediator for other family conflicts related to property, adoption, etc. In general, a period of three months is foreseen for the couple to reach the agreements that, if any, will be included in the final act drawn up by the mediator. However, the ratification of these agreements within the judicial process are the competence of the judicial authority or, in any case, according to the procedures of the relevant legislation in the respective autonomous community. It is also contemplated in some autonomous legislations that mediation can be included in free legal aid as long as the requirements to access it are met. It should be borne in mind that mediation is not family therapy, but rather seeks that through a neutral person the parties themselves reach the agreement. In this sense, the mediator does not impose agreements on the parties, nor does it seek to determine who is the “culprit” and who is the “victim”. On the contrary, it is a matter of the parties listening to the interests of the other and that both of them choose the option that best defends both their own interests and those of others.
Types of Mediation
According to Folberg et al. (2004) several types of mediation that differ both in their methodology and in their objectives, but that can be combined and create hybrid models. Two main models of mediation are facilitative and evaluative. Facilitative mediation was the first form of family mediation services and divorce. As its name implies, this mediation model facilitates in a dialogue process the parties take responsibility for the decisions that will affect their lives. In this model, the mediator tries to refrain from making recommendations to the parties, nor does she predict the effects of the agreements in court, since it is the parties who must take responsibility for the final agreements and their judicial effects. Evaluative mediation focuses more on the negotiation of agreements and requires the mediator a deep knowledge of the legislation, of the economic aspects, etc. The mediator seeks in this case to evaluate the position of each party and seeks to expose what would hypothetically happen if such and such agreements are adopted. Given that in both types of mediation the will of the parties is required to dialogue and personally reach an agreement, mediation in cases of family violence is not recommended, given that there is an extreme situation of threat, control and power between the couple, which can lead the threatened or abused party to consent to all the requests of the aggressor (cf. Folberg et al. 2004).
Divorcing is a painful, expensive and complicated step, although it is less so since the reform of the law in 2005. Then the obligation to go through a separation process prior to divorce was abolished and a new figure was created family mediation. , designed to help settle the divorce in the least conflictive way possible.
Apart from state law, most of the autonomous communities have been developing and defining more precisely the figure of mediation, so that this service is provided with nuances in each of them. But the ends pursued by mediation are the same everywhere, to reduce the emotional and economic damages derived from divorce, to protect the interests of the minors that may be involved, and to minimize disagreements between the spouses, creating the conditions for them to dialogue and communicate.
But apart from the courts, family mediation is a process that the couple who is going to divorce voluntarily goes to, to mutually agree on the terms of their divorce, with the help of a mediator and without the need to go to a trial where it would be the judge who would make the decisions.
If the mediation is fruitful and the members of the couple reach an agreement, the mediator will write a document that reflects it. This document, a draft regulatory agreement, will then have to be attached to the divorce petition that is brought before the courts and will be examined by a judge, who will ensure that the law is respected and that none of those involved (spouses or children, if any) has been harmed.
If the judge approves and approves it, the agreement will have the same validity as if it had been issued by it after a contentious process. But an important question arises: are the personnel qualified?
Mediation is supervised by a qualified person (the mediator) to guide two people who have difficulty understanding each other towards solutions that satisfy both of them as much as possible and respect legality.
The law requires the mediator to be active and to be impartial and neutral. In other words, he is not a mere spectator, but must stimulate and direct the negotiations, without taking sides and without imposing his own solutions. In addition, you are required to maintain confidentiality about the process and to be faithful to your task.
If you fail to comply with these principles and damages are derived for other people, the injured parties may demand compensation for civil liability. The law also requires that the mediator be specifically qualified to mediate.
The regional regulations are more precise than the state regulations and require specific degrees, which vary from one to the other: law degree, psychology or pedagogy, diploma in social work, social education … If we stop to think seriously about mediation, all are advantages. The agreements obtained under the auspices of a family mediator have them.
As it is a mutually agreed arrangement it is less traumatic, as each party sees their will reflected to some extent. This favours the fulfilment of the agreements, which nevertheless fails more frequently when the judge decides for the contenders, especially what they previously shared (property, housing, businesses and, above all, children), without leaving any of them satisfied.
The agreement must be reached in a short period that varies from region to region, generally lasting three months, exceptionally renewable for another three, although there are differences between communities (the process can take at most three months in the Balearic Islands, four in Cantabria or five in Valencia).
Mediation often makes divorce very cheap, at least when compared to contentious processes, in which each spouse needs a lawyer and a solicitor. There are no fixed rates, but they are agreed in advance with those who request it. Typically, the price varies depending on the number of sessions necessary to reach an agreement, how many professionals intervene, etc. However, given the advantages of the system, some communities and entities are promoting free mediation services. To the cost of mediation, it is necessary to add the cost of a single lawyer and a prosecutor, who process the divorce petition before the judge, attaching the agreement obtained thanks to mediation, since it is not possible to file a demand of this type without the intervention of these professionals.
In short, if you and your spouse have decided to dissolve your marriage and you are able to define the coordinates of the divorce by mutual agreement, it is best to ask the social services of your community for the existing family mediation services and their cost.
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