The Constitution of the Republic of Cuba of 2019 in its article 93 recognizes the use of alternative methods of conflict resolution in any field as a viable formula on the way to promoting a culture of peace in our society.
Mediation is the method proposed by the Family Code for the organization of family life and for the harmonic solution of conflicts that occur within it, as one of the expressions of freedom and autonomy that this new Law presents us in its Title X, chapter I.
The aspiration, of course, is aimed at ensuring that the families themselves resolve their disputes on their own with respect, consideration, listening to each other, taking into account the criteria of each of its members and seeking alternatives that are beneficial to all. However, only by fostering a culture of peace will this be possible and in this way, the support of a third person, a facilitator, trained for it, is an excellent alternative to learn.
On the other hand, many people, no matter how much anguish they suffer in their family life, do not want to go to court, because they consider that this implies exposing who they are or were loved ones; or because they fear that this impact will worsen relationships and the effective solution of their problems. However, turning your back on the matter or trying to resolve it with impositions and without dialogue usually makes things worse, accumulates tensions and aggravates the outcomes. For those who think so, mediation is an intermediate option, where the good will to negotiate in the best terms can be put to the test, without going to court or before going to court. In short, this is today an opportunity of great value that opens up to us in the space of greatest sensitivity for each human being: the family.
What is mediation? What does it consist of?
In the words of Professor Dr. Armando Castanedo Abay, father of Mediation in our country "it is defined in a simple way as a facilitated understanding". “(…) means that you take on the responsibility of resolving your conflict. (...) a mediator helps you, by providing a private and informal method, to reflect on the interpersonal conflict or dispute (“discuss the matter”) and try to resolve it. The mediator is not a judge and does not decide who is guilty or innocent. (...) it is flexible and allows you to find your most important needs with the mediator”.
The professor affirms: “One of the fundamental questions to take into consideration to solve the interpersonal dispute consists of reestablishing, to the greatest possible degree, communication between the parties to the conflict, which is generally achieved from the understanding by these that there are conclusive or complementary interests between them (...) and that the "arrangement" is possible between them if they agree."
In the aforementioned sense, article 443 of the Code reflects that mediation is carried out through an extrajudicial procedure, in which qualified professionals, without decision-making power, facilitate communication and help people negotiate collaboratively and reach agreements.
For its part, article 444 addresses which are mediatable issues and which are not. In section 1 it determines that those claims that affect the public interest, or that encourage discrimination and violence in any of its manifestations and in which there are imbalances that affect communication, voluntariness and effective compliance with the law, may not be brought to mediation agreements. In section 2, it expressly establishes that "(...) filiation claims, those related to the suspension and deprivation of parental responsibility, the waiver of the right to claim maintenance and others that cannot be the subject of an agreement because they are outside the device scope of the persons in conflict according to the law are excluded from the possibility of agreement through mediation or conciliation”.
To understand what we are referring to, let us remember what is public interest or also called public order: It refers to the fundamentals that govern a collectivity or community at a given historical moment (say the norms of civic behavior) and the relationship of these with a certain legal institution, in the case at hand, the family institution. This family public order refers to the rules and legal norms dictated by the State of an imperative and obligatory nature in which the will of the people is limited because it refers to core issues that cannot be negotiated by family members. Let's take some concrete examples:Filiation claims: If you are a man and the paternity of a child is being imputed to you in a filiation process, it is not possible for you to negotiate with the mother of the child who has initiated this process so that she stops it because you do not want to recognize it, you do not want to be dad. She is exercising a right that assists her and that right is not negotiable.
The legal obligation to provide food: If you are one of the people obliged to provide food to a family member, whether it is a child or a parent, you cannot negotiate with the other responsible family members or with the person in need to exclude you from that legal responsibility because you don't want to fulfill it. That is a right that assists the person in need that not even he himself can give up. If you do not comply, your actions will have legal consequences to your detriment.
What is negotiable and can be taken to mediation is the way in which you are going to fulfill your obligation. If you are going to deliver "maintenance" as it is popularly known, in money or in kind, if you are going to give it in cash or make a bank transfer, if you are going to make your contribution at the beginning or end of the month, among many other options.
Ownership and exercise of parental responsibility: From the moment you recognize your child, give him "his surnames", you are the owner of parental responsibility with all the extensive content that it entails and that implies a series of faculties that, depending on the child's development and the well-being of your child, you must exercise continuously. The fulfillment or not of these responsibilities is not negotiable. The protection of your child is above all other issues.
Failure to comply with your responsibilities as a father or mother will have legal effects for you, which can reach up to your deprivation determined in a court ruling.
What is negotiable in mediation are the parenting agreements, how they are going to be organized for the care and attention of their child, if they are going to have shared or unilateral custody and care, how the communication of the person who does not have custody will be, how recreation times, or vacation periods, or birthday parties are going to be organized. In these aspects the use of mediation is highly beneficial.
A detailed analysis deserves the relevance of mediation in family spaces in which discrimination and violence are propitiated and in which there are imbalances. Mediation observes several guiding principles, some of which are determined in article 445 of the Code, but there are two that are fundamental in this regard: the balance of power and responsible voluntariness.
The balance of power is essential to carry out a mediation. It implies that the parties are empowered, that there are no fears, subordination or emotional dependency that could influence and affect the negotiation. This balance is expressed in the voluntariness from a double perspective, which implies, on the one hand, going to mediation with the interest of maintaining a respectful exchange and communication and, on the other, that the agreements reached are subsequently fulfilled. That is why we must speak of a responsible volunteerism.
Violence in itself cannot be mediated and is not justified in any case. The right to a life free of violence is not negotiable, it is a human right. It is not possible to negotiate on the amount, severity or frequency of screaming or hitting, or whether or not the causes that provoked them were "justified". There is no doubt that violence is an expression of abuse of power, disrespect, humiliation and lack of appreciation for the other party. For this reason, it is essential to ensure that mediation is not given in these circumstances, as it would put the victim in a position of great vulnerability, who in many cases will pretend to accept, but who in reality will be affected by fear and/or or dependence on the aggressor.
However, it may happen that at certain times stories or past family episodes are narrated with those particularities that, depending on the characteristics of the case and the assessment of the risk situation, the mediators can decide how to act and evaluate, if necessary. a situation overcome, to appreciate a true balance of power between the people involved, it is possible to mediate in other issues, for example, division of assets, communication regime, alimony, among others; without violations of the leading role of the parties.
It is therefore necessary that mediators be trained in gender perspective and violence prevention issues with the aim of recognizing and visualizing situations of this type, being able to decide what to do, always with the support of multidisciplinary teams and even denouncing the competent authorities when they know of the commission of an act that the Law typifies as a crime.
Mediation as an alternative method of conflict resolution cannot ignore the gender perspective. Men and women constantly manifest or show behaviors and ways of communicating that are unquestionably determined by the roles that society itself has assigned them throughout history. This also has a significant impact on relationships between women, between men and those linked to sexual orientation and gender identity.
In this sense, it is common to find in family mediations, men unable to assume roles that distance or break the patriarchal scheme and women who maintain or reproduce patterns of behavior or stereotypes assigned as feminine within the family, which inevitably transcend the rest of family members.
Those who want to break with these pre-established molds also find themselves rejected or questioned by their family, friends and colleagues. For example, men who want to fully fulfill their paternal role and are held back by archaic conceptions of their supposed inability to care, couples who agree to share domestic and care tasks harmoniously and are questioned in extended family nuclei. Moving away from these old formulas of facing life is difficult, centuries of presence of the hegemonic model of masculinity in our environment, demonstrate this. Patriarchal dynamics negatively affect the harmonious solution of conflicts.
Particularly difficult are the conflicts generated by the separation or divorce of the couple, especially when there are minor sons and daughters, and the consequences for the family and the normal psychological development of these children. This event convulses family life, brings to light many of the assumed sexist stereotypes, represents an affectation in the psychic and physical life of its members and in the face of this unpleasant situation there is no single formula that could be the most convenient to help solve and face marital breakup at the lowest possible “cost” for the people involved.
In family mediations in cases of separation and divorce where there are minor sons and daughters, the mediator must not only take into account the conflictive relationship between mother and father from a gender perspective, but must also estimate the degree of incidence of the conflict in the lives of minor sons and daughters and the significance of the result or the agreement obtained in this process in them, especially when they are often physically absent.
Reversing the crisis and turning it into a positive event, both for the couple and their offspring, is a rough process where the intervention of a third party could be very positive by making it easier for them to visualize the meeting points or common interests they have and how to assume them in a constructive manner for all members of the family, which is very convenient and constructive if one takes into account that these are relationships that will continue in the future.
This last aspect is of vital importance since the primary objective of family mediation must be to prevent the conflict from destroying the family and negatively affecting society. Family relationships are enduring over time and its members must be made to incorporate and internalize peaceful forms of conflict resolution. To the extent that families are informed about dispute resolution options in harmonious environments, particularly mediation, people will be educated to peacefully negotiate their problems and a future where peace prevails will be guaranteed.
Finally, we must highlight that the new Family Code provides for notarial instrumentation and judicial approval of mediation agreements, which means that people who have resolved their conflict in mediation, once the procedure is over, can implement the agreement reached. by notarial public deed or homologate it through the voluntary jurisdiction procedure that is regulated in the Code of Procedures, provided that they do not affect criteria of public order or violate the best interests of children and adolescents or the protection of people in a situation of vulnerability.
Similarly, in accordance with the provisions of the Code of Procedures, mediation can also derive from a judicial process or from the executive phase of a judicial process that has already concluded.