De la mediación a los medios adecuados de solución de controversias (MASC), ida y vuela (o el mito de sísifo)

Resumo

A legislative initiative to strengthen the use of mediation and other ADR in the Spanish Administration of Justice has recently been frustrated. Expectations for this second attempt at legislative reform were high and the discouragement of many mediation professional could seem like the legendary punisment of Sisyplus. However, it is not clear that such high expectations were justified either. There is an English idiom: "If it ain´t broke, don´t fix it" And it has been adapted to become the first rule for programmers or computer engineers who proclaim "if it works don´t touch it". Both phrases can be useful for us to conclude that in mediation we should only try to fix or reform what does not work, and that what works should not be touched. As we know, mediation is a llegally regulated institution at international, national and regional level, with a wide range of expeciences, and with great recognition of the professionals (many with a high degree of theoretical and practical training) who have been practising it for decades, althoug the need and demand still do not correspond. Mediation needs to take advantage of the opportunity offered by the new legislature so that the proedural requirement puts it in the okace it deserves and for wich it has been preparing for decades (the last one with greater awareness). Certainly, a legislative reform introducing the procedural requirement would help mediation. However, we must be aware that any help would be useless if the mediation process did not result in the satisfaction of the interests and needs of the persons involved. Lesgilation can do little or nothing about the success of this work, and it is in the effort to achieve this that we must continue to persevere without fearing that it will roll to the bottom of the valley.