Bases romanísticas de la mediación como expediente intrajudicial y extrajudicial de resolución de conflictos y su proyección en el derecho actual

Abstract

This Thesis approaches the analysis of the Roman bases of mediation through a comprehensive research of the existing antecedents in Roman law, so enriching the study of a present-day topic. It commences as an in depth study of consilium domesticum, precedent of present day mediation, a group of relatives that a paterfamilias was expected to consult by custom compensating his absolute power over the members of his family. After an illegal or harmful fact for the interests of the family happened, an in-house judgement with direct participation of certain family members evaluating the wrong behaviors was carried out and an opinion was communicated to the responsible of the patria potestas, the paterfamilias before his final decision. Existing doctrinal divisions, even regarding the existence of consilium domesticum, also known as iudicium domesticum, are accurately shown and put in perspective according to the existent sources. There is a clear conclusion: consilium domesticum must be considered an advisory organ, as an instrument serving to the family for mediation of certain conflicts but always in-house, without any value as a real court. Other antecedents are considered such as the agreement, the transaction and the most important, the arbitration. My mentor and professor D. Antonio Fernández de Buján, considered the best Spanish specialist on the matter, states that although Greece should be considered the origin of arbitration, it is consolidated as a special and exemplary technique for solving conflicts during Rome age. The distancing from the transaction, original essence of arbitration, allowed the development of its own character and regulation that it is still useful nowadays as a mean to solve conflicts. Regarding present legislation, an extensive and detailed journey through ADR (Alternative Dispute Resolution) in Spanish law is performed, including explicit references to European regulation and obligations within the national context, clarifying the role, competences, duties, rights, legal status and finally, responsibilities, of the mediators in the course of carrying out their functions. Furthermore, a precise evaluation of the principles of the mediation process is carried out explaining its voluntary nature in Spanish law in contrast to Italian law where, under certain circumstances, is compulsory. Additionally, in court and extra court mediations are considered, highlighting the appropriate models for mediation agreements as well as the advantages compared to other ADR methods. The disadvantages of any mediation are analyzed with a special emphasis on family mediation. The Thesis, which even question the future of mediation, concludes that mediators should be more and better qualified for the performance of their jobs and that the Ministry of Justice, as administration, should better comply with the supervision and control of mediation to warrant the legal guarantee of the whole mediation process.