The truth is that the use of mediation has grown considerably in recent years. More and more people, companies and institutions are resorting to it to resolve conflicts to the detriment of the judicial route because it is more agile and less costly, among other advantages.
Below, we tell you what it consists of and what types of conflict mediation exist, what is the difference between mediation and arbitration, and the necessary training to practice this profession in the future.
What is mediation?
Mediation is a conflict management procedure in which a professional, neutral and impartial third party (called a mediator) helps the parties involved in a dispute to resolve it.
In any conflict mediation, the parties involved must come to the process of their own accord. Likewise, they are the real protagonists in the management and possible resolution of the problem, since they are the ones in charge of proposing the different options to reach an agreement and find the most satisfactory one for everyone.
This means that the role of a mediator is limited to helping the parties reach an agreement, facilitating communication and improving the existing relationship. In short, he or she has no authority to impose or offer a possible solution to the conflict.
As for the agreement, it has the same effect as a private contract. Even so, it can be elevated to public deed through a notary and, also, homologated judicially through a judge. In both cases, this document acquires an enforceable character, so that its execution could be requested before a judicial body if it is not complied with.
In Spain, conflict mediation is regulated by Law 5/2012, of July 6, on mediation in civil and commercial matters, in addition to different regional regulations.
Difference between mediation and arbitration
Although both are alternative means of dispute resolution (ADR) to which people resort to avoid a conventional judicial process, there is a difference between mediation and arbitration:
MEDIATIONARBITRATION
- The mediator is an independent professional and is not chosen by either party.
- The mediator merely brings the parties’ positions closer together.
- The parties engage in dialogue and exchange their positions with the intention of reaching a common point.
- The parties end the conflict voluntarily. The agreement is signed only if both parties agree.
- The parties may make the agreement enforceable by executing it in a public deed.
- Failure to comply with the agreement necessarily requires one of the parties to file an ordinary proceeding.
- The arbitrator is chosen by the parties.
- The arbitrator proposes solutions.
- The parties try to convince the arbitrator of each party’s position.
- The parties are bound by the decision made by the arbitrator, regardless of whether they agree with it or not.
- The Award (decision) issued by the arbitrator is enforceable.
- Failure to comply with the Award directly implies the filing of an enforcement proceeding.
Types of conflict mediation according to areas
- Civil and commercial: it takes place when conflicts arise from the breach of a contract.
- Family: this type of mediation takes place when disputes affect the family context: couple, parents and children, siblings, senior citizens, etc.
- Criminal: it consists of putting an end to a dispute in such a way that the victim is adequately compensated and the offender accepts responsibility.
- Labor: this involves reaching an agreement in a conflict that occurred in the work environment, either between the company’s management and its employees, between colleagues or between members of the management team.
- Health: is the alternative process for the resolution of health disagreements, especially those that occur between doctor and patient, between health professionals or between them and the health administration and / or companies in which they provide their services.
- School: it is the way to solve the disputes that appear in the educational environment, all this talking and without resorting to disciplinary sanctions.
- International: it is the diplomatic and peaceful means of settling cross-border disputes.
- Emerging contexts: contentious-administrative, sports, neighborhood, fiscal/tax, online dispute resolution (ODR), etc.