In situations where reaching an agreement proves difficult, the parties have the opportunity to seek the assistance of a Mediator, who helps them define a solution to the issue on which they hold differing views. Mediation may address all matters arising from a divorce or separation, or it may focus solely on issues related to the regulation of parental responsibilities concerning a minor or adolescent.
Unlike court proceedings, where, in the absence of an agreement between the parties, the Judge and the Public Prosecutor impose a solution in accordance with what they deem most appropriate and lawful, in mediation the Mediator merely assists communication and facilitates the search for a solution in an impartial manner. The Mediator does not decide on behalf of the parties but instead enables them to reach a consensus together. In other words, the Mediator does not act as a decision-maker, but rather as a neutral facilitator, acting independently and impartially.
Furthermore, mediation is governed by essential principles that allow the parties to feel as comfortable as possible when discussing the matter that divides them, in an open and honest manner and without constraints.
Accordingly, mediation is confidential in nature, meaning that what occurs during the mediation process cannot be disclosed, not even in court as evidence, unless it is strictly necessary for the protection of any minors involved and their physical and/or psychological integrity.
It is also important to note that mediation sessions may take place jointly with both parties or separately, if requested by one or both parties, or if the Mediator considers that such an approach would be more beneficial.
Mediation is a voluntary procedure that requires the consent of the parties to participate, as well as their informed understanding of the process. Such consent may, however, be withdrawn by either party at any time. Therefore, refusal to participate in mediation does not constitute a breach of the duty of cooperation, unlike what occurs in judicial proceedings.
The parties must be treated equally throughout the procedure and given the same opportunity to participate, with the Mediator maintaining the impartiality that is fundamental to the role.
It should be noted that, once an agreement is reached, the parties must comply with it effectively in order for the efforts invested in the mediation process to achieve their intended outcome. However, if one of the parties fails to comply with the agreed terms, the agreement reached through mediation may have enforceable effect, equivalent to a Court judgment, meaning that it may be valid in enforcement proceedings for the purpose of immediate compliance, in the following circumstances:
- Where judicial approval is not legally required;
- Where the parties have the legal capacity to enter into the agreement;
- Where the agreement does not breach public policy;
- Where it has been reached through mediation conducted in accordance with the law;
- Where the Mediator is registered on the List of Mediators organised by the Directorate-General for Justice Policy or is part of the Public Family Mediation System, having received specialised training for this purpose.
Similarly to judicial proceedings, children and adolescents may be involved in the mediation process, as they are central figures in cases of divorce or separation. For this purpose, it is essential that the Mediator has the sensitivity to assess whether the presence of the child or adolescent will be beneficial for the specific case and for the minor concerned.
Factors such as age and maturity must be taken into account, and appropriate techniques should be used to work with children and adolescents in situations of parental divorce or separation. The Mediator may also determine, as in judicial proceedings, that the child or adolescent should be heard individually, for example, where there is a possibility that they may feel inhibited in the presence of their parents.
Another positive aspect of mediation is that the process can be relatively swift and the associated costs considerably lower. The approximate duration of such procedures is around three months, and the fee payable by each party is €50.00, regardless of the number of sessions required.
In conclusion, family mediation establishes itself as an effective, accessible and human-centred mechanism for resolving conflicts, prioritising dialogue, cooperation and the autonomy of the parties in building consensual solutions. By fostering a confidential, impartial and voluntary environment, mediation not only offers a faster and more cost-effective response to family disputes, but also helps preserve personal relationships, particularly when children and adolescents are involved.