They say that the family is the compass that guides our steps and the greatest consolation when something goes wrong; And yes, the love of a family is forever, because beyond blood, it is also united by bonds of affection and understanding.
However, no family – or almost no family, not to be absolute – is exempt from having differences at some point in life, and sometimes these problems become so deep, so “badly handled”, that they end up breaking, damaging that family bond.
But if there is a better way to solve such conflicts, in an environment in which people can freely, without pressure, in a harmonious way, reach agreements that solve these problems, why not do it then?
Mediation, explains Dr. Yamila González Ferrer, vice president of the National Union of Jurists of Cuba (unjc), is an alternative method of conflict resolution, through which a trained professional makes it easier for people who have a problem to improve the communication and reach partial or total agreements, which are proposed by those involved.
It is also a novel mechanism within the practice of family law in Cuba, and that the Family Code incorporates, as a response to a social need and in line with constitutional precepts.
In this sense, he recalled that Article 93 of the Magna Carta opens the way to use alternative methods in the various matters and issues that can be resolved from this perspective; and the family space is, precisely, one of the areas with the greatest possibilities to work on mediation.
One characteristic of mediation is that it is an extrajudicial procedure –and this is what the Code collects–, which means that it occurs outside the space of the courts, said Dr. González Ferrer.
The latter, he maintains, is something very positive, since a space of freedom and autonomy is being given so that people can resolve their situations within the family.
Another element that characterizes this procedure is the voluntariness of the parties that are in conflict. “If there is no such voluntary participation, then mediation simply cannot happen,” he pointed out.
He stressed that voluntariness must be seen in two ways: to go to mediation and communicate, listen, propose solutions, but also taking into account that the agreements will be fulfilled to the extent that the people themselves wish. “It’s not just going to the mediation table, but having the will and responsibility to subsequently fulfill those agreements,” he said.
The new possibility offered by the Code of Procedures, approved last year, is that it allows these mediation agreements to be homologated before the court, and there is also a way to take them to notarial deed.
With these two ways, the agreements adopted will have that mantle of legal certainty that is required, if people so wish, so that in case of future breaches they can go to court to demand compliance with them, he said.
On the other hand, he underlined, article 444 of the Family Code is clear in this regard, when it states that matters that can be mediated are all those in which the public interest is not affected, nor discrimination and violence in any of its manifestations are encouraged, and in those in which there are no power imbalances that could affect communication, voluntariness and effective compliance with those agreements.
Such an delimitation is of vital importance, since it gives the measure of how far mediation can go and, based on this, a Decree-Law is currently being worked on that institutionalizes mediation, that properly focuses the requirements and other essential elements within this proceed, such as the spaces in which it can be given, the professional registry and the training of mediators, among other aspects.
NEGOTIATE AND YIELD, THE WAY FOR EVERYONE TO WIN
Within mediation, says Dr. Yamila González Ferrer, there is another very important principle: the balance of power. We are talking about the fact that, in order to enter into this negotiation, both parties have to be in the same conditions, with the same capacity to negotiate, to be empowered, to evaluate and understand what the other party wants and wants.
We usually say that in mediation we all win, but to get there you also have to give in. «It is not about a competition, nor about seeing who achieves his goal over the other; What mediation seeks is for all parties to benefit, and that is achieved with consensus, with respect, without discrimination and learning to yield », he pointed out.
For this reason, he stressed, when a mediator – who is a fundamental figure in this procedure – appreciates that there are imbalances of power between the parties in conflict, he cannot promote mediation, since there is a principle that is being violated.
Another important aspect is that all the agreements that result from this mediation must be in accordance with the law. For example, he details, if a conflict related to parental responsibility is being mediated, in no way can one of the parents -understood mother or father- say that they are going to completely disregard their child and that the other will assume all the obligations in forward it.
“That cannot happen, obviously, since the content of parental responsibility cannot be affected or ignored. What can be reconciled is, to cite one case, how parents who are undergoing a separation are going to organize the lives of their children », she specified.
The Family Code itself provides for the possibility of parental agreements, and “if these agreements are not reached, in the first instance, between those who bear parental responsibility, then with the help of a mediator the parents can decide on the custody and care of the children, the communication regime, how to organize the vacations, who is going to pick up the child at school, who is going to stay with them on holidays, etc.”, he exemplified.
Regarding matters that are not mediable, the Code establishes the filatory claims, those related to the suspension and deprivation of parental responsibility and the waiver of the right to claim maintenance, among other elements.
Regarding the right that a person has to claim food, Dr. González Ferrer clarified that the rights are not negotiable, what can be reached is how the obligation is going to be fulfilled, and how the pension is going to be established depending on of the needs, how often, if it will be in kind or in money, etc.
In cases of violence and discrimination, in which, obviously, there is an imbalance of power, mediation is not possible either, said the Cuban jurist.
This does not mean, he stressed, that in situations in which there has been violence, but the people in conflict have already managed to overcome that reality, it is not possible to mediate on certain aspects such as the liquidation of the marital community of property or communication with the sons; what will never be done is to mediate on the violence itself or its behavior patterns.
The Vice President of the National Union of Jurists of Cuba also commented that even though the Family Code introduces mediation for the resolution of conflicts in the family sphere, it is necessary to give greater publicity to the use of these alternative methods.
As part of that effort, he said, since 2011, in a joint effort between the National Union of Jurists of Cuba, the Federation of Cuban Women and the Faculty of Law of the University of Havana, we began to prepare professionals, fundamentally jurists, on mediation issues, from a gender perspective.
However, there are also other attention spaces, such as the collective law firms themselves and the conflict resolution offices, which exist in some UNJC social houses.
Thinking about well-being, communication, not affecting the relationship between family members due to a specific conflict, is what mediation pursues, and beyond what the law establishes, it is necessary to promote these principles of respect in society, and that people know that there are other ways to solve problems, without this implying going to court or irremediably breaking the ties of a family.