Propuestas de mejora del acuerdo de mediación familiar intrajudicial

Abstract

The present work is dedicated to the study of the intra-judicial mediation agreement which is defined as the mediation process’ final part, in which are enshrined. Also, it is “intra-judicial” in this way because it is played in the interior of the separation or divorced legal process, reducing the familiar conflicts in them. Related with the agreement, we can studied the mediation, which is defined, like “the structured negotiation according to this law’ principles, in which two or more parts in conflict are trying voluntarily to get an arrangement by own themselves to solve the conflict with the involvement of a third part, called organs mediators” (LMACM). In the other hand, authors in the doctrine consider that the concept means “a way, a third one tries parts, outside the subject, reach an arrangement to solve their troubles, in order to put an end to the conflict”, as Barona Vilar, S. mentions.81 Also it can be considered like a “volunteer process to solve familiar conflicts, in especial, in matter of couples with children, of recently application in our que se ha legal context”, in Afonso Rodríguez, M.E’s, words82. Afterwards, it be indicated the context where the mediation agreement is celebrated, that is in the matrimonial ordinary divorce or separation proceedings. The dictionary of the Royal Spanish Academy defines this term as “the breakdown of the marriage stablished by judicial statement with effective cessation of marital cohabitation”; while separation was conceptualized by the RAE as the “disruption of conjugal life for conformity of the parties or court ruling, without leaving it extinguished the link matrimonial”. The differences between separation and divorce are that the first is interrupted the married life, by the parties or by court ruling, and the second is extinguished the marriage linked by a ruling of the competent judge. Then, highlight that the mediation agreement is the most important part of the procedure of mediation because it serves for that process to be as fruitful for parties 81 BARONA VILAR, S., «Integration of mediation…», cit., p. 22. 82 AFONSO RODRÍGUEZ, M.E., «Family mediation …», cit., p.55. - 52 - and affected third parties, and also, it can be implemented the advantages of mediation procedure to the contraries. At that point, we refer to the principles which govern the mediation agreement, which are the same as the whole process. Such principles are regulated establishing that "the Government will send to the courts a draft law on mediation based on the principles laid down in the provisions of the European Union ", and in any case on voluntariness, fairness, neutrality and confidentiality and respect for the mediation services created by the autonomous communities" (art.3 Law 15/2005). The principles applicable to the mediation highlighted are studied and analysed by García Villaluenga,I. in the next terms83: In first place, the confidentiality, applicable to all discussed during mediation sessions. It is defined as the obligation to remain silent regarding what is known during the procedure, to be binding for the mediator who will participate in the process by performing an activity mediating between the parties. In second place, the voluntary is conceived as the lack of compulsatoriedad both the process and the adoption of the agreement conciliator, in base to which parties may voluntarily choose to go or not to such conciliation instrument. But, if the parties opt to go to it, it is necessary that they commit themselves to comply with the adopted in the mediation agreement. Added to the before, it’s stipulates that "the mediation referred to in the present directive should be a voluntary procedure, insofar as the parties are responsible for it and can organise it as they want and give it to terminate at any time" ( E.M. paragraph 13 Directive 2008/52). In the next place, we can emphasize the impartiality which is the principle that applies to the mediator and that is that in acting, the parties should avoid making it with partisan interests to facilitate the parties to adopt a conciliatory solution, objective and serious. In the last place, we can indicate the mediator neutrality, which is a feature related to the above principle and it is defined as the need for the mediator to act as 83 GARCÍA VILLALUENGA, l., «Mediation through its principles…», cit., p. 722. - 53 - arbitrator, avoiding opting for the adoption of an agreement that provides one of the parties to the detriment of the other. Therefore, the mediator must act merely as a facilitator of the adoption of the agreement settling the procedure. Besides, the legal framework of family mediation which is characterisation of mediation agreements is established in: - The Spanish Constitution, in particular, article 29 CE. - Recommendation 1/98 of the Council of Europe on family mediation, and in particular, in its paragraph 11 which States that "encourages the Governments of the Member States introduce or promote mediation family or, where appropriate, strengthen the existing family mediation" and sets forth the principles that govern the family mediation. -The "green paper on alternative modalities of conflict resolution in the civil and commercial field" of 19 April 2002 of the Commission, which aims to respond to consultations on legal issues about the alternative methods of dispute settlement in the field of civil and commercial law. -Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, which has transposed into Spanish law, due to the article 96 EC. - Regulation 2201/2003 of 27 November 2003 of the Council of Europe, concerning jurisdiction, recognition and enforcement of judgments in matrimonial matters and parental responsibility, whereby the way of protecting the child is expected in case of put an end to the marital cohabitation. - Articles 770.7, 777.2 LEC that establishes how to deal with the processes of separation and divorce in cases where there is the possibility to go to mediation to settle the dispute of the parties. -Law 5/2012, July 6, mediation in civil and commercial matters that will transpose to Spanish law rules contained in the Directive 2008/52 and it regulates the mediation agreement pointing material and temporal limits and mandatory content of such an instrument (art. 23 LMACM). -The regulation by different laws handed down to regional level. - 54 - On the other hand, in relation to the aspects on which deals with the mediation agreement, noted that they are economic-loyal and educational matters. The economic-loyal aspects are referred to the mention of the judicial consequences that cause family breakdown processes, because the family is an important social institution. In particular, economic and loyal aspects of the mediation are linked to the guardianship and custody of the children, the regime of visits, the food, the spousal, parental, and others, the conflict situations can be derived. But there are matters which are excluded from the mediation and cases where not one can attend to it due to the severity of them, such as cases of ill-treatment, violence or sexual abuse and the lack of free consent, given that it's crimes punishable by the Penal Code and it excludes such matters of mediation (art. 2 LMACM). Instead following, in terms of the educational aspects, mediation is destined to reducing the damages that occur in the separation and that it can affect to children. Besides, other aspects to study of the mediation are, according to Romero Navarro, F84.: -The distribution of the responsibilities of the separated parents. -The guidelines that separated spouses must be respected. -The educational criteria and guidelines according to the ages and conditions of children. Then, we can observe in relation to the objectives that will aim to achieve by adopting the agreement provided for in the directive of the 2008 are several; including as says Ortuño Muñoz, P.85: - Reach practical agreements in such a way that with the mediation to facilitate a quick and suitable response to the differences between the parties in a position of equality before the conflict that are being resolved. - Ensure a lower costs because the aim is to avoid "the huge costs that usually bring a judicial process", but does not imply that it should be free, because in Spain despite consideration of the principle of gratuitousness, mediation is financed by the 84 ROMERO NAVARRO, F. «Family …», cit., p. 45. 85 ORTUÑO MUÑOZ, P., «The judicial approval …",cit., p. 74. - 55 - State, putting such an instrument at the disposal of individuals to resolve disputes between parties. - Provided a quick solution needed to avoid the conflicts of the matrimonial litigation proceedings. -Promoting agreements to maintain a viable relationship. The legal regulation of the obligational and procedural effects doesn’t appear regulated expressly in the LMACM because it makes a referral to the transaction and the contractual common law. However, it regulates the executive effect provides that "when the agreement is reached in developed mediation after initiating a judicial process, the parties may request the court approval in accordance with the provisions of the Civil procedure law" demanding as to constitute the executive title, which is effected by means of public deed or judicial approval of the agreement (art. 25.4 LMACM). For its part, the obligational effect of the agreement is contracted in reference to the rules of the common law that sets arising from the same obligations for both parties (art. 1091 CC). Therefore, when they have perfected, "the agreement will oblige parties to comply with it seriously in accordance with good faith, to use and in the case of non-compliance, it can go to the courts for resolution”. In addition, decisions which are contrary to it is agreed in mediation will be considered ineffective specifying that "against what was agreed in the mediation agreement only nullification may exercise will cause invalidating contracts" (art. 23.4 LMACM), referring to the common law on invalidity of contracts, in which one can distinguish between the radical nullity, in the absence of the essential contracts and invalidity in cases which are referred to inessential requirements. Highlight also that the agreement takes procedural efficiency so it will be taken into account by the judge who handed down resolution in the case, approving it as a procedural exception (art. 1816 CC). In terms of the need to use such an instrument, we can observe as the jurisprudence of way reiterated at the heart of the conflicts of divorce and separation is pronounced to please attend this conciliation mechanism, as well as the doctrine, and even the which justifies the need for such an instrument to attend mediator, showing in - 56 - the table appearing in the work the differences between attending the consensual way and contentious via, and the advantages that derive from the first86. Following the exhibition of the work, we can see that the procedures listed to follow in the procedure taking into account, as it indicates the Supreme Court which points out the importance of such an instrument to prevent conflicts that could affect third parties, especially to the children, "all decisions of importance for the child to be taken in a consensual way, resorting to mediation procedures in case of disagreement87. We can affirm according with the mediation that is a form of collaboration of the citizens in the administration of Justice, by participating in the solution of its problems and is carried out with a staff of trained acting in the process by facilitating the adoption of an agreement by the parties. Such a process, cited in a schematic way is characterized by the following features according to Fabrega Ruiz, C. F. and M. Heredia Puente, M.88: Referral to mediation, it is said by the Court that the request to the parties to attend an information session and according to the doctrine in certain matters such as marital conflicts with minors and it should be compulsory (art. 158.6 CC). The second is the phase of session informative, that is used to explain the benefits and rules of mediation to the parties, which can appear assisted by their lawyers and, ultimately, if they wish to continue will sign an informed consent. Then, the parts can continue the process, suspending the course of orders for the period provided for sixty days or by deriving a measurement without such suspension, but after the deadline, the parties must be able to request an extension to continue mediation (art. 19 LEC). The next phase in the process is the communication in which each party must send to the mediator their perception of the problem and can participate the other party always that do not interrupt and hold a position of active listening, which can come the lawyers. 86 URIA ETXEBARRIA, M. «Intrajudicial mediation… », cit., p. 50-53. 87 F. J. Tercero, STS. TS Sala 1ª, núm. 579/2011, 22 de julio de 2011. 88 FABREGA RUIZ, C. F, «Intrajudicial mediation… », cit., p.7-8. - 57 - The phase of negotiation continues, which may also consist of several sessions and in which the parties can contact directly the word or discuss under the control and direction of the mediator, trying to propose solutions. The other phase of the agreement, it is in which aims at the adoption of specific agreements which the mediator writes and delivers to the parties and their lawyers so they formulate proposals and counterproposals relevant. The phase of ratification of the agreement is the following, which is held separately with the corresponding period of reflection and consultation for the parties. The other phase, is the execution or voluntary compliance with what has been agreed, is that is then. In last place we can sign the monitoring process of which is the agreement to adapt to every circumstance of the parties. After the completion of phases, can happen different situations, as outlined in the work: If the agreement is not achieved, stands the suspension of the process at the request of either party and resumes the orders in the procedure in which it is located, still recommended that such matters have priority in the signs in order to compensate for the delay which the mediational attempt to generate. In the event that the agreement is partial, the parties must notify the Court to continue the procedure with respect to issues not agreed in the exposed form and issued final resolution, auto or judgment, collected reached measures and resolved in that there is a discrepancy. But, in the case of the agreement is complete, the judge approved it and will give the same the value of executable judicial resolution via the forced to comply voluntarily. On the other hand, the work explores the organs facilitators of the agreement, which are mediators. Besides, there is a consideration intrajudicial family mediation services, formed by mediators that should comply with the principles cited in the work by referring to the mediation agreement In this regard, which it can be can observed in the CGPJ’s notes89. - 58 - Such bodies have improved their performance over time and they have provided that the conflicting parties, whether they are in a situation of divorce as separation become to reach a satisfactory agreement, given the advantages that arise as pointed out by the doctrine and jurisprudence to study this question. In the next place, we can indicate that it is the team of mediators, which must meet a series of features like the experience, training and professionalism and that must be entered in the register of mediators in Spain, as continues by pointing out the guide of the CGPJ. In this regard it is provided the possibility of exercising the work of mediation by more than one person jointly; pointing out that "can be effect through the intervention of one or more persons mediating, who will act in a coordinated way, depending on the complexity of the subject or the convenience of the parties to the same. When there will be more than one mediator, one of them must act as a coordinating mediator" (art. 11 LMACM). According with the standard, it is stipulated the number of members, even though they have to act more to help adopt the solution most relevant to the case and in such a situation, they must act together, being a person if it was necessary, which should serve as coordinator of the different measures to adopt as well as between the parties, to help them to solve the case of the more timely manner both to persons who have dependants. The rule also says that several people will be who participate as mediators if so require the specific issue concerning or according to the convenience of the parties, thus excluding the possibility that such a measure is applied widely in all situations. Also the standard provides the possibility of proposition of lawyers by the mediators in the mediation sessions. The third basic element is the collaboration agreement, which will be signed by the judge or court and the team of mediators. Once formulated the agreement, everything it should be communicated to the CGPJ, the main member of Government of the High Court of Justice, The Director of 89 URIA ETXEBARRIA, M. «Intrajudicial mediation… », cit., p. 41-45. - 59 - Public Prosecutions of the Court of Justice, deans of colleges of lawyers and social services of the municipalities, according to the guide of the CGPJ. Next to the previous basic elements, the following elements of the procedure are: First, the Secretary and the judicial office, guarantee information, summon the parties and the administrative control. Second, the psychosocial team that is important because its function is to establish the benefits and advantages that mediation produces depending on the case, and thus causing towards the staff of the courts the conviction of what best suits. Finally, the public prosecutor's Office is essential to intervene in the protection of the minor children and for divorce or separation in which can be affected the minors rights, because this organ has the function of Act on the protection of children, and there is that of power start mediation when the prosecutor considers that it is more satisfactory for the minors, according to the law 50/1981 which regulates the Organic Statute of the public prosecutor and his functions. In the next place, we can observe the autonomic rules pay more attention to the set of laws of family mediation which have been enacted in the autonomous communities, and also, the mediation organs. It’s necessary stressing that the mediators specialize in the work after completing a Bachelor's degree which provides that "the professional of family mediation, unless the specific qualification which enable to carry out such activity, provided by legal regulations must have university training in the disciplines of law Psychology or Social work, Social education or Social graduate, … in order to register in the mediating family’s register” (art. 7 LMACM). The training of mediators is regulated both at the national level, by the laws of the different autonomous communities which refer to them, lacking in some regions, like the Navarre of such regulation. In addition, the same one also appears stipulated in standards at Community level, as shown by the Directive 2008/52 and the Forum European standards of training in family mediation, made up of more than 60 associations from eight European countries, including Spain, which has established as minimum standard of training in family mediation of 180 hours of theoretical and practical training, which includes legal notions especially in family law, tax basic knowledge, such as the preparation of budgets, interview techniques and others. - 60 - Referring to the proposal of improvements, point out that they indicated which is considered necessary to adopt in the system Spanish given that the Directive 2008/52 leaves without addressing matters concerning mediation, although Member States have full legislative autonomy to such work. In addition, in which they have a federal or autonomous system, they also involved territorial entities, as in the Spanish system which has been made by the majority of the autonomous communities, focusing on administrative, procedural aspects and others matters which are professional mediators configuration, the legal regime that will be of application and in particular the responsibility that may be payable, according to Ortuño Muñoz, P90. Also, the definition of the "models" of mediation following the basic principles of the directive, will be at the discretion of the States or, where appropriate, of the different schools of mediators without being enforceable by the Board a unique model. As well as the effectiveness of the terms of submission to mediation, the same can be inserted in contracts and agreements and the scope and intensity of the judicial or administrative referrals to mediation, and the obligatory nature of such practices. In the next place, there are measures to improve the guarantees of the procedure, consideration of the special nature of mediation agreements and agreements of impugn regime. Finally, we must do allusion also to the conclusions, that component last part of work, in which we can observe that the work has sought to expose the legal regulation of mediation within the national and regional normative framework agreement, on the basis of Community rules in the existing connection, which has been transposed into the Spanish legal system by LMACM, trying to see the possibility of improving the application of mediation in the Spanish system and formulating proposals to improve their practical application due to the relevance of the voluntary mechanism conciliator in family matters.