Mediation: besides a technique
- A tool for understanding judicial
demands in family law

BORBOSA A.A
GROENINGA DE ALMEIDA G.
NAZARETH E.R.

ABSTRACT

Country:
Brazil

Language:
English

This paper intends to show how important Interdisciplinary Mediation is as a method to provide efficient, effective and humane treatment to the subjects that arrive at Family Law. As Mediation allows the discrimination of different levels of conflict, it helps with the definition of the social roles, as well as with the recognition and valorization, not only of the parties involved, but also of the professionals who deal with law. It is also useful to examine the Judiciary System in relation to the disciplines indirectly involved in the procedures. Moreover it helps to think about the relations of this system with the rest of society.

To the extent that Mediation can work as a "listener" of the real needs, it permits a direct contact with the Subjects of the Law without the unavoidable and unsuitable translation of the emotional conflict into juridical language. Thus, it is possible to use another form for obtaining a feedback from the operation of the Judiciary System itself and from the subjective meaning of the Laws. We define Mediation as: "a theoretically and technically based social practice by means of which, a neutral and especially trained third person, collaborates with the parties in dispute, the 'mediands'.

Consequently, they try to cooperate to transform their conflicts in a way that they can reach an agreement that benefits them." Mediation is an important tool for the exercise of citizenship as much as it implies a wider understanding of rights and duties and the development of autonomy. In this sense, Family Mediation is not understood as an Alternative Dispute Resolution ADR, but as an appropriate way of transforming conflicts and not an "alternative" for solving them. Interdisciplinary Mediation allows viewing Family Law through the optics of other disciplines, mainly Psychoanalysis, Theory of Communication and of the General Theory of Systems. Their contribution would be examined. For example from psychoanalysis: definition and construction of inter and intrapersonal conflicts; the importance of the unconscious elements; the paternal and maternal functions.

From the Theory of Communication: explicit and implicit, verbal and non verbal communication; the construction of misunderstandings; double-bind messages, etc.. From the General Theory of Systems: the laws of the human systems operation, etc.. Such contributions applied to Family Law by means of Interdisciplinary Mediation facilitate a larger understanding of the role of the laws and of the Judiciary itself that can also be considered a symbolic and ritual place; there is an imperious need to replace the, sometimes discredited, Judiciary System in society. This system should protect the individual as well as the family - a privileged place for the existence of subjectivity. Such contributions also help to face the problems which the modern family comes across when it meets situations such as separation and divorce, guardianship disputes, adoption, artificial insemination, abortion, investigation of paternity, and so on. These are moments when a new family identity must be formed. The traditional way which the professionals who deal with Law and the Judiciary System have been working with, has sometimes been inefficient and insufficient.

BORBOSA A.A.
Lawyer, Mediator, Director of International Relations of the Instituto Brasileiro de Direito de Família - IBDFAM Member of the Association Internationale de Femmes des Carrières Juridiques

GROENINGA DE ALMEIDA G. - NAZARETH E.R.,
Psychoanalyst, Family Therapist, Mediator Instituto Brasileiro de Direito de Família - IBDFAM