Juan Manuel de Faramiñán Gilbert
If we want to classify mediation as a renewed conflict resolution paradigm for the 21st century, we must start from the basis that, although the mediation model has existed since human beings made the effort to resolve conflicts via dialog, we can now resize the model.
Given the current circumstances in which the international community moves and the confusion that has been generated in the society of the 21st century in which, as we can verify daily, it is not possible to solve the confrontations by peaceful means more in line with a civilizing conscience, new models are demanded for a humanity that is supposed to be mature. For this reason, I understand that a model such as mediation should be rescued and integrated into our legal advice services as a renewed prototype within the framework of a new paradigm.
In this line, and to explain this idea of a new paradigm, I turn to the philosopher of science Thomas Kuhn, when he points us in his work “Structure of scientific revolutions”, when he defines the idea of paradigm as “universally recognized scientific achievements that , for a time, provide models of problems and solutions to a scientific community. In this way, he considers that science is a process that evolves and in which solutions must be sought to the problems that arise in the advance of these evolutionary processes.
For Kuhn, the structure of scientific revolutions is established according to the following steps: at the beginning, the prototypes of a normal science emerge that govern the investigations for a certain time and that configure scenarios where the course of the investigations takes place within some preset molds; and that as such constitute their paradigm and from which it is difficult to get out. Time comes when the old paradigm reaches a crisis situation, the opportunity arises to look for a new paradigm, since the previous one no longer solves or insufficiently solves the problems facing the scientific society. It is at this point, where for Kuhn the scientific revolution arises that begins to be identified with a new paradigm restarting a new cycle for normal science.
Until now, we have moved above all within the paradigm of iura novit curia, as a presumption or legal principle in which the judge is the one who knows the law applicable to the litigation, for which the aforementioned aphorism acts as a normative principle that imposes Judges the duty to resolve disputes according to the law. It is in this model that the institutional framework of the legal system is structured, which is increasingly overloaded and generates delays in the preparation of sentences.
However, currently, in view of the stagnation of the judicial structure, new horizons are opening up for conflict resolution, in such a way that, in accordance with the idea that systems evolve, paradigms do as well. Let us see, then, that within the framework of the traditional legal system, the paradigm of iura novit curia has deposited in the legal knowledge of the judge the ability to pronounce and resolve a conflict based on law and, however, given the need to evolve towards systems more dynamic opens the possibility of searching, together with the paradigm of iura novit curia, other paradigmatic models, which amplify the channels of conflict resolution and generate new epistemological and cognitive pathways.
We could speak, then, of the possibility of coexistence of paradigms that seek safer and more participatory legal paths and that are consolidated during the 21st century. That they provide better responses to new scenarios and new conflicts, both in individual relationships and in those of a collective nature. In other words, the search for a new paradigm that achieves a more effective model of justice, given that, although national courts continue to play a fundamental role, they are not the only model for achieving effective solutions. It is along these lines that new movements are born, such as ADR (Alternative Dispute Resolution) in order to open alternative paths, generating mechanisms that try to resolve disputes outside the courts, through non-judicial means.
Faced with this new reality, we are faced with two postulates that must be taken into account. On the one hand, the most classic heterocompositive model, which implies that a third party outside the conflict acts supra partes and imposes the solution on the parties involved. These heterocompositive ways are the judicial process and arbitration, since in the first the judge is the one who imposes the solution and in the second he is the arbitrator, in contradictory procedures. Instead, on the other hand, through the mediation that is based on the autocompositive argument, the third party that intervenes does so inter partes, helping them to be the ones who definitively reach the agreement that ends the conflict. In such a way that it is the same subjects who, with the help of the third party compounder, reach the solution of the existing differences, self- composing themselves in a consensual solution. In this way, an agreement is reached that has been obtained through reciprocal assignments, in which the third party does not impose the solution on the parties, but they are the ones who decide with the help and guidance provided by a third party.
The advantage of the autocompositive method, that is, of the mediation model, is evident in the fact that it has become established in our society as an emblem of a new paradigm, which, although it is not new, is extremely useful. Given that with the self-compositing method, the solution of the conflict is achieved through more peaceful means, in which the parties seek among themselves to resolve the contradictions; so it is becoming a model on the rise, with a great impact on sectors such as family, business, neighborhood relations or insurance, to name a few more prominent examples.
It should be noted that the success of the model is based on its methodology, which, with the help of a third party unrelated to the conflict, is organized through a series of steps and the exchange of information. And although the negotiation is initially faced with mistrust, this must be ironed out with the serene intervention of the mediator, involving the parties in the mediation technique, unraveling the problem, creating options and proposing ideas, reducing tensions and proposing a solution that the parties must agree on. Therefore, we can indicate that it is an informal and private procedure based on the principle of autonomy of the will and that it constitutes an extra-procedural and extra-jurisdictional formula. Therefore, we can indicate that in mediation there is not a process but a procedure, since its function is not to judge and enforce what is judged, but to bring the parties closer together so that they are the ones who reach the solution. It is based on the flexibility and neutrality of the mediator and, therefore, on the confidence that he gives off with which he makes the parties feel comfortable in order to negotiate, yield and agree on a consensual solution.
These profiles make mediation the ideal instrument to reinforce the new paradigms of the 21st century, since it is based on criteria and principles that have currently been reinforced in the mentality of the new century. Such as the principle of voluntariness, which is based on the idea that the parties in conflict come willingly and without coercion to resolve the dispute; the device principle, which implies that all kinds of conflicts can be brought to mediation; the principle of equality, according to which the subjects involved must be guaranteed full equality of opportunities; the principle of impartiality of the mediator, since they must maintain their neutrality without taking a stand for any of the parties; and the principle of confidentiality, given that it is one of the essential elements of the mediation procedure and not only refers to the discretion of the mediator, but to all the subjects who attend the development of this procedure.
In short, mediation will gradually become one of the most precious instruments for resolving conflicts in areas such as the judiciary, in which the overload of processes delays the resolution of disputes, where through mediation the human beings in a self-compositive way find the way for mutual understanding.