Mediation is a method of resolving out-of-court disputes in which a third party – the mediator – facilitates the achievement of an agreement between the parties. In family disputes, mediation is called “family mediation”.
Mediation is an out-of-court procedure, meaning that the procedure takes place outside the scope of a court, and is therefore more personal, simple and informal. However, the parties may be accompanied by a lawyer.
Mediation, despite the emphasis given to it by the law in recent legislative changes, remains residual in a system where conflict resolution generally focuses on the court.
In Portugal, mediation is voluntary and cannot be imposed coactively (by a court, for example), and ending as soon as one or both Parties express such a wish. In some European countries, mediation, in the context of family/parental conflict, is mandatory and is a preliminary stage of the judicial process.
The procedures are confidential, so the content of the talks that have been held cannot be disclosed either by the parties themselves or by the mediator.
The mediator is neutral and impartial, merely “facilitating” the consensus to be reached by the Parties themselves.
Mediation is of particular use in the context of parental/family conflicts, since the intervention of the State – and, consequently, of the courts – within the lives of families must be governed by the principle of minimum intervention, searching for consensual solutions to which the parties themselves arrive.
It is very common, in the context of my professional practice – either as a lawyer or as a family mediator – to alert my clients involved in parental conflicts to the need to be able to enter into consensual solutions with the other, otherwise it will become a third party – the court, the judge – to decide the future of their children… Now, and indeed, the alternative is clear: either we can solve our problems, or others will do it for us, by force if necessary!
It should be noted, on the other hand, that a consensual solution – and, consequently, desired by both parties – is easier to internalize and accept, making less likely future violations or non-compliances.
Mediation, of recent introduction to our justice system, has come to stay and it is urgent to disclose and vulgarize it, removing from our courts many cases that would best seat in a mediation room, where the toga and the compendiums of law stand at the door.