Forum Mundial de Mediación - World Mediation Forum - Forum Mondial de Médiation

First of all it want to thank very sincerely in name of the World Mediation Forum that I represent and in that of the AIEEF and in mine own, to the ANMF, - Portugal , their associates, its executive board and to its  President Dr. Antonio Farinha by the accomplishment of this conference and for having had the consideration of inviting us to participate in it.

I hope the present paper honors their fine attentions and of all the present people.

Throughout these days we have listened very interesting motions with respect to experiences accomplished in other countries and right here in Portugal.  Each one of them has been the result of large efforts and fruit of many negotiations, since what is new  it opens its way in base to an arduous and difficult task by parts of those who believe in the project.  Then when the project is consolidated and has proven efficiency, the stage that continues  is not less arduous but I think something less tiring.

The World Mediation Forum wants be near all those that as the ANMF, member of the Forum, makes these efforts for the development of project in which they believe.

In Mrs. Lisa Parkinson' dissertation we have been able to listen some extremely interesting aspects on the mediation, with the authority given by her long experience in the field, therefore I would like to emphasize  some aspects that I understand are of special  interest:
Mrs. Parkinson expressed, that we still have difficulty with the concept of mediation .  This topic, that is to say this difficulty, has been  overlying all this II Conference and without pretension of clarifying it, because it still needs of much ink to be used on it, I would like to add to what it was said by Dra. Lisa Parkinson in relation to it.

The main lines that we use, and that now I will refer, serve us to,  following what she has so clearly expressed "define fields,  identify roles,  work together but not confused", that is to say in what we believe that  is an interdisciplinary proposal.

We all basically agree that the mediation requires at least two persons, legal or real, in conflict, and that in some moment of the development of such conflict, they choose to call a mediator, that it is independent to them, so that will help them to find some solution.  Therefore, it is also always written that the mediator controls only  the process and not the contents.

There is one of the first serious problems that we have found in these years devoted to the familiar mediators training.  How to make  that the intervention of the mediating does not,  in underhand form, unconsciously, in behalf of his best intention, include an indication on the contents?  How to do so that the mediator will not manipulate,  unconsciously or not, to persuade the parts as to force them into an agreement.  This is one of the important topics that  are being worked right now and in which several schools, from the systemic of Palo Alto, the transformer of Mr. Folger, the interdisciplinary of the AIEEF and so many other,  are procuring to develop  teaching technics as to avoid these situations and to permit mediator to acquire his essential abilities:

Being empathic, being flexible, being creative and having capacity of active listening .  We believe the way is to be able to recognized his/hers own prejudices and his/hers  projections in the task of mediating.

Mrs. Lisa Parkinson also mentioned that the people arrives very vulnerable to family mediation. All those that  have worked with families in separation or divorce crisis know that this is correct.
And that in addition to vulnerable are as a rule regressive, defensive and very but very ached.  In those circumstance is very easy tempting to offer help,  to jump us the control of the process and to enter in the control of the contents, that is to say to propose solutions, to induce them, since we are convinced that our proposal is very good.  It may be that it will not be the best one but at least we feel sure it is very good and above all simple.  But what occurs is that is our and their solution.

Thus we arrive in this same sense to excellent  exposition of  Dr. Caetano Valadao Serpa from USA, who in a very clear and deep way, showed us the complexity of the problems of the School Mediation.

He explained that there are conflicts just because we are different. He worked on the importance that the school has in the training process of a youth, of the quantity of time that he  passes and how important is to be able to generate a less violence climate and a learning process of the fact that the conflicts can be solved otherwise, and therefore he applies for mediation between pears or school mediation. He commented how the  students take care of the task themselves,  as how they are elected and trained to accomplish this task with the parents and teachers collaboration.  There are very interesting results and wished for success were given to Mrs. María Sao José Caldeira project that is being accomplished  in Lisbon.

Then we had a very interesting lecture offered by the Judge Mdme. Marie Claude Devois from France in which has described with great simplicity and clarity the judicial processes in France in relation to the victim offender mediation with minors, and how is used the technics of this process within court.  She explained that this work was being accomplished in the "Maison of the Justice" (house of justice as a difference with Courts) and that the encounter with the victim and the  repair process acted as a learning process for the minor.  We think that therefore resulted as  a better way of an "active appropriation of reality" in the  saying of Pichón Rivière with the direct consequence in responsibility and change.

Dr. Pere Led from Barcelona, Spain, showed us other project accomplished in this field with a totally different conception.  Based on the basic idea of separating as much  as possible the mediation act from  the judicial area, continuing thus the proposal of Dr. Bonafe-Schmitt that offers a total separated alternative.

It is timely to bring here the interventions of the Brazilian judges, situated among the public, who recall us of the limits and importance of the judicial defense concepts  of dignity and process guarantees in relation with mediation process.

We arrive thus to the exposition of Dr. Eleid Wolfsen from Holland, who in addition to show us that we are not working with  nothing new, he talked about a new project taken place in Holland.
He mentioned that in Holland since 1590 there are records of the appearance of pre-judicial obligatory mediation and that sine then they have had several experiences.  Then he mentioned with the application of French legal system in Holland, carried Judges to think that the contact with the parts could create prejedism , and that therefore these proximity methods were not acceptable any more.

Then he described a project underway by virtue of which in the familiar field the mediation will be able to be accomplished by any professional trained for being a mediator, but if it was not an attorney, it will have to carry the signature of a mediating attorney, since he must give legal advice, and it must therefore work with his/hers company , as to guarantee  that the parts have had legal information and that therefore had the freedom to accomplish the mediation agreement made.  In this case he  says that there would not be any type of control by the courts, even if there were children involved, being let thus, in hands of the mediators the total responsibility over the agreement.  We think may be it is being created the risk of converting the mediator into a supra-judge without any alternative of appeal.

We arrive thus to one of the most serious problems in the  task of being a mediator.  Who controls the capacity of the mediator to make such a  difficult work, since the people with whom  he works are going through a moment of great vulnerability?

The mediator is found thus before a serious deontological problem.  Since it is independent of which was his/her former profession,  psychologist, social worker, attorney or any other, were all of those activities are based on a  training in which intervention in contents is essential, working in what they believe is better and most  convenient for their clients.  Therefore, how can we  guaranteed a performance within the objectives of  mediation?

This is other of the  pending issues of mediation and of those who are  making large efforts in fulfilling them.  Since in Portugal mediation  activity  begun recently and so strongly, it can be a field to think for a better development of your project.

Finally I want to refer to round-table on Proximity Justice and the search  for an efficient and secure judiciary system,  since they perceive that continuously they are imputed inefficiency,  that the cases are eternal etc.

I want to show  some transparencies in  which I attempt to offer some reasons of the difference between mediation  and the mediation techniques used in courts.  They are based on the level of intervention.

In any normal judicial procedure, the communication roads are the following (shown by arrows in the graphs)

In the system of the proximity justice it is procured to rise  the clients to a higher levels to get direct contact with judges, putting in some way in that moments the clients at the same level as their lawyers.

Nevertheless the clients continue maintaining with respect to their lawyers the distance because they are their guaranty and they  know how the gain  the process.

When attorneys tend negotiations to solve conflicts, and as it was mentioned yesterday by our college Mr. Ferr we use some of the following communication models.

When a negotiator makes what is called shuttle negotiation what he does  is to go from one to other, keeping the power that  gives  him/her the fact of controlling information. With this reserved information procures to approach each parts saying what esteems that will approach them, and silences  what might not approach them as to  forward the information later or may be never. He  controls  contents in addition to process and this puts him/her in a place of power, where the parts have fear and confidence at the same time .

The proposal that we make for mediation and trying to bring some  ideas on these topics,  is to  propose working in a same level in which the communication process are established first in this direction (3), making it later in these others(4) and finally it is created a third place (5), the place of  the common interest, that is, a third symbolic place symbol of the interest of the  parts and not of their positions.

Said this, and having tried in some way of summarize these characteristics of  mediation, we see that transferring the scheme to the Judicial procedure, it results impossible because the power level in which the judicial system and  the judge are makes it that way. Therefore we strongly suggested to make, by means of an interdisciplinary effort, to share technics and experiences from mediators with  the largely developed legal principles and from there to begin creating a new jurisdictional order.

We are before a crucial moment of the life of the modern state. In Europe The States have made  important transfers of their powers in some areas that no one would have said it was possible not much time ago, changing substantially the game rules and the power of each one of them .
In this days, , the emission of a new currency, its control , the continental safety policies, the procedures of the European parliaments and its recommendations, the courts of Strasbourg and Luxembourg, all the phenomenon of the globalization, the common agrarian policies etc. indicate that it is not far the moment in which  essential changes will be produced in the State concept it self, and the way it has been understood  until now.

It will not be  strange that the judicial attributions will be delegated into the autonomous communities, regions, or territorial areas in which the proximity between the citizen and the legal system will be  greater.

Where it is installed the traditional judicial power in this new order? We will privatize the justice in all what is considered that it is not essential?, who will consider what is essential?, What will happen with all the concepts accumulated in so many centuries, such  as those of legal  safety, need of evidence enough to prove the facts, the form in which the judges will know the cases etc.

The mediation is presented as an alternative system of the judicial one causing the false idea that the mediation is the good one and the bad one the legal system.  From that perspective they are in a competitive model in a winning/losing alternative.  I think exactly the opposite, the mediation and the justice, they can go together resolving each one what is better according to its one procedures, giving the best possible service to the citizen, permitting a complementation, maintaining its identities without confusing roles so that together, all involved in conflicts resolution, not being only lawyers in laws, judges and prosecutors, we can find a cooperation way of a win/win solution .

I hope to have cooperated with the effort of the ANMF in this objective.
 
Thank you very much .

Daniel J Bustelo Eliçabe-Urriol
President of the WMF

Lisbon, Portugal.  May 9,  1998. -

++P.D. I request the excuses of the not mentioned speakers, because due to personal reasons, I have not been able to participate in their expositions and therefore I couldn’t  refer to their papers.
 
 

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