As is known, in conjunction with the establishment of family courts and with the aim of helping to decongest them, as well as finding more appropriate solutions to family conflicts, a family mediation system was established as a voluntary procedure.

It is also an incontrovertible fact that shortly after this new justice system, a series of inefficiencies were found in the system, which was having the effect that instead of ending the situation with the collapse of the courts, it remained.

trial-mediation-conflict-legal-food

At this point, one of the criticisms pointed out that the mediation system established as an optional procedure for the parties was not fulfilling the purpose initially proposed.

The reasons that were given, on the one hand, were related to the lack of a culture of mediation -which meant that the user did not have the interest in using this procedure- and, on the other hand, with the little preparation of the system operators.

Taking into account the first element, that is, the lack of culture in the alternative system, and also considering the need to decongest a system that, under the creation of a new jurisdiction and procedure, maintained the situation of congestion, the -among other matters- the promotion of mediation, establishing it as a prior and mandatory procedure in three areas: food, direct and regular relationship and childcare.

Regarding the criticisms that pointed to the lack of training of the system operators, there was no major change at the legislative level. However, and relevant to our study, observing the comparative situation, we see that in Argentina the topic has been discussed, claiming that the Harvard School's models in Negotiation and Mediation have been adopted as the cause of “poor” mediator training, adding insufficiency as the only theoretical model in the matter, and which has generated unintended consequences by blurring its cultural characteristics (affecting its identity) for having been adapted to trans-Andean society. To this is added that, according to the latter, the mediator trained in the Federal Capital has the sole task of facilitating communication between the parties.

This being the case, I found it interesting to debate what would be the ideal system among the three models most usually applied or studied in classrooms, limited to the conflict over food.

Consequently, the purpose of this essay is to carry out reflective analysis of the three mediation models identified as the main ones, that of Harvard, the Narrative Circular and the Transformative, in the context of the conflict that occurs regarding the determination of forced foods. or legal.

We choose to reduce our analysis only in application to the food issue, fundamentally because according to current regulations, food law is one of those matters that must be submitted prior and mandatory to the mediation procedure, also because disputes in this matter are the most frequent occurrences in family courts, which necessarily leads me to deduce that the previous mediation failed or, in technical terms, was frustrated, perhaps choosing the model as one of the possible causes.

This project is inspired by the confrontational methodology adopted by the author Carlos Giménez Romero in his article available on the internet “Mediation Models and their application in Intercultural Mediation”, which motivated me to make this sectoral approach applied to food conflict.

To carry out this study methodologically, we will begin with a brief legal description of maintenance rights, subject to a double delimitation: limited only to legal maintenance and within these only those established in the Civil Code, using the work of author René Ramos Pazos "Family Law" volume II.

Once the description has been made and before turning to the mediation models, we will proceed to describe from the sociological perspective provided by the Theory of the Conflict, the nature and general characteristics of the divergences that arise regarding this right, preventing that, yes, that Even when we recognize that the conflictive dynamics in the family field is complex, for the purposes of this essay we will seek to limit the topic only to the problem of food.

Subsequently, a brief exposition of each of the mentioned mediation models will be made, mentioning their theoretical foundations and describing the main characteristics of each model, for which we will rely on the framework provided by the author Marines Suarez in her work. "Mediation. Dispute management, communication and techniques. ”(1996).

In the descriptive stage of each model we will approach the convenience of applying it to solve the food conflict.

Later, as a conclusive synthesis, the models will be confronted, especially in relation to our appreciations of the benefits and limitations of each one, which is done.

SYNTHESIS OF FOOD LAW

1.- Concept

The word "food" in the vulgar sense includes sustenance or food. This is, moreover, the meaning that the dictionary of the Spanish Royal Academy gives in its first meaning "a set of things that man and animals eat or drink to survive."

However, in the legal field, the word food includes not only this first scope, but also encompasses everything a person requires for his or her sustenance: namely, maintenance, clothing, housing, medical care, education, recreation, comprehensive training, etc. In general, we can point out that to definitively determine the scope of this institution, we will have to subject ourselves to a progressive interpretation of the norm according to the evolution or changes in social reality.

In what there is a certain consensus in the doctrine is that the right to maintenance is linked to the satisfaction of basic, real, unavoidable and urgent needs, and whose passive face is that of being a manifestation of a broader duty, the duty to relief, which forces family solidarity between people who maintain certain kinship ties.

The author René Ramos Pazo proposes a descriptive definition of the right to maintenance in accordance with art. 323 of the Civil Code and relating it to arts. 329 and 330 of the same text, noting that this right is: "the one that the law grants to a person to sue another, who has the means to provide them with what they need to subsist in a way corresponding to their social position, which it must cover at least the sustenance, room, clothes, health, mobilization, basic and secondary education, apprenticeship of some profession or trade. ”

2.- Classifications

Previously and sharing the opinion on the subject of the Argentine author Carlos Lasarte, it should be pointed out that when speaking of food law we must specify whether we speak of food law in general, that is, in the abstract, or on the contrary, of the obligatory nutritional relationship, that is expressed in a specific obligation.

In effect, the maintenance right in the abstract is the power that the legislator establishes to demand maintenance, or to say of the cited author “the latent duty-right.

On the other hand, the obligatory maintenance relationship accounts for a specific link, either by agreement of the parties, or by judicial resolution, and which produces the effects of the obligations in the patrimonial field.

The distinction is important because the legal regime is not coincident. This is because primarily the maintenance right has the attributes of being reciprocal and very personal, characteristics that the already determined maintenance obligation does not possess. We will see later the characteristics of each one.

2.1.- According to the Source

The first classification refers to the source of the maintenance obligation, which can be the law on the one hand or the declaration of the will on the other.

Legal maintenance, also called “forced”, is that which is due by law; instead the volunteers are those that are provided by the will of the man, manifested in a testamentary disposition, in a donation or in a contract.

The importance of this distinction, apart from the fact that both have different legal regulations, lies in the fact that the prohibitive or restrictive norms of forced food do not apply to volunteers, which are related to waivability, passability, transmissibility, seizure, among others., characteristics that are prohibited in legal foods.

2.2.- Future and accrued food

This distinction refers rather to alimony, which can be with respect to their birth in pending or accrued status.

We anticipate that an important fact to take into account in the mediation process is that future maintenance, as well as maintenance law, has the characteristic of a very personal right, that is: they are inalienable, non-transferable, non-transferrable, imprescriptible, non-compensable, not subject to arbitration and need judicial authorization to be compromised. In contrast, past-due alimony, that is, accrued and uncollected, do not have any of these attributes.

2.3.- Provisional and definitive food

Provisions are those that the judge orders to grant while the maintenance trial is aired, with the sole merit of the documents and background information attached to the case and that must be restored if the person who is sued obtains an acquittal. Ceasing this right to restitution, against which, in good faith and with some plausible basis, has tried the claim (art. 327 of the Civil Code).

Definitive maintenance is determined in a final definitive sentence or by agreement between the parties approved by the court.

3.- Provenance requirements of legal maintenance

Citing René Ramos Pazos, according to the Civil Code, the main source of food law, the existence of three provenance requirements is established:

a) State of need in food. This requirement is established by art. 330 of the Civil Code: "Food is not due except in the part in which the means of subsistence of the food are not enough to subsist in a way corresponding to their social position"

b) That the feeder has the necessary means to grant them. This is clear from art. 329 of the Civil Code: "In the appraisal of maintenance, the powers of the debtor and his domestic circumstances must always be taken into consideration." The proof is that the feeder has the means to provide food to those who demand it (food). As an exception, the Family Abandonment and Alimony Payment Law, Law 14,908, in its art. 3 °, final paragraph, presumes that the provider has the means to give food when a minor demands it from his father or mother. This is a simply legal assumption, which only operates when the indicated relationship exists between the feeder and food.

c) Legal source. As we are talking about legal maintenance, it is incontrovertible that there must be a legal regulation that requires the maintenance to be paid. The main rule is art. 321 of the Civil Code.

But it is not the only one. There are other cases: eg. the art. 2 of Law No. 14908, which confers food on the mother of the unborn child); Bankruptcy Law, art. 64, inc. 4th, etc.

4.- Holders of alimony

According to art. 321 of the Civil Code, "maintenance is due:

1 ° to the spouse;

2 ° To the descendants;

3 ° to ancestors;

4th to the brothers, and

5 ° To the one who made a large donation, if it had not been rescinded or revoked.

Donor action brought against the donee.

No maintenance is owed to the people designated here, in cases where an express law denies them.

5.- Order of precedence to demand increases

The Civil Code has regulated in art. 326 the situation that occurs when you have the right to demand food from different people, for example: a married woman has the right to demand food from her husband (art. 321, No. 1), but also from her ancestors (art. 321, No. 3); if she has descendants, she could sue them from them (art. 321, No. 2); and if you made a large donation, to the grantee (art. 321, No. 9), etc.

Says art. 326: «The one that to request food gathers several titles of those enumerated in art. 321, may only use one of them, in the following order: 1 ° The one that has according to number 5; 2º The one that has according to the number 1 °; 3º The one that has according to the number 2 °; 4 ° The one that has according to the number 3 °; 5º The number 4 will not take place except in the absence of the others ». "Among several ancestors or descendants, recourse must be made to those of the next degree. Among those of the same grade, as well as among several bound by the same title, the judge will distribute the obligation in proportion to their powers. If there are several alimony with respect to the same debtor, the judge will distribute the alimony in proportion to their needs ». "Only in the event of insufficiency of all those bound by the preferred title, may another be resorted to."

6.- Characteristics of the right to maintenance

As we pointed out, the right to maintenance is a reciprocal and very personal right, The reciprocity means that any of the subjects of the legal relationship food may be debtor or creditor position depends on random factors: necessity of a part and economic capacity of the other. That is, if a person has the right to claim alimony from another, he is also obliged to provide it, if the latter needs it. This rule of reciprocity is broken in some cases: for example from the donor, only the one who made a large donation can demand food; the reverse situation does not occur.

But an important case of exception is the one contemplated in art. 203 of the Civil Code that matters a true sanction for the father or mother who opposes the judicial determination of filiation. This rule implies that when the filiation has been judicially determined against the opposition of the father or mother, he or she will be deprived of all the rights that by the ministry of law are conferred on the person and property of the child or his descendants. Then the son can demand maintenance from her father or mother, but the latter cannot sue the son, except in the event that the son restores them in their rights.

The characteristic of being very personal means that this right is inherent to the person of the owner and is therefore of a social interest of public order. From this characteristic derive a series of consequences of the highest interest:

1) It is non-transferable and non-transferable (art. 334)

2) It is inalienable (art. 334)

3) It is imprescriptible (art. 2498). You can demand food at any time as long as the legal requirements are met at that time

4) It is unattachable (arts. 1618, No. 9 of the Civil Code and 445, No. 3 of the Code of Civil Procedure).

5) You cannot submit to compromise (art. 229 of the Organic Code of Courts), that is, your knowledge is forbidden to the arbitrators.

6) The transaction on the maintenance right must be judicially approved (art. 2.451 of the Civil Code).

The aforementioned characteristics are valid for future maintenance, a situation that the mediator must take into consideration, under penalty of the approval of the parties' agreement, the court rejecting it or being challenged at the request of the party.

7.- Characteristics of the maintenance obligation accrued or overdue

The specific obligations accrued or overdue become part of a common credit and not a very personal one, so they do not have the restrictions regarding future maintenance.

THE FOOD LAW CONFLICT

1.- Concept of conflict

Citing Suares's (1996) conceptual approach, we understand that a conflict is “an interactional process that is born, grows, develops and that, at times, can transform, disappear and / or dissolve, and other times remain relatively stationary. It occurs between two parts, between which antagonistic interactions predominate over attractive interactions. As a process, the conflict is co-constructed by the parties and, sometimes, it may be led by a third party. ”

Thus, in terms of food, we understand that the conflict occurs when one of the parties perceives that they are in a state of lacking the necessary goods to subsist modestly in a way corresponding to their social position and adopts an attitude tending to end this situation by requesting it in this way. to whom by law is obliged to go to their aid, encountering opposition from this part, which generates the state of antagonism that once resolved can be reborn to change the circumstances that originated it.

2.- Characteristic of the food conflict

Applying the Christopher Moore (1995) classification, we classify this conflict within the class “ conflict of interests or needs conceived as incompatible ”, which is characterized by the fact that the parties conceive that to satisfy their own interest, they must necessarily sacrifice that of the other, inexorably producing a competitive dynamic.

Despite the subsumption made, and especially in the context of the breakdown of a couple relationship, it should not be forgotten that the conflict could be due to deeper and even different reasons than economic need. All this can only be evidenced once the matter is investigated in more detail.

Thus, for example, we could find ourselves in the presence of a relational problem as a result of negative emotional charges or false or stereotyped perceptions, which turns the food problem into a secondary conflict and sometimes unreal or apparent when there is no state of need.

Likewise, it may happen that the problem is due to an erroneous, false or different interpretation of the same reality, as for example when the alimony thinks that the pension he is receiving is too low in relation to the income of the alimony.

It is important to attend to the remote causes of the conflict because there is the possibility that they will stiffen positions even against the interests or needs of those who are part of the conflict.

3.- Description of the conflicting ether

According to the concept of conflict that we have pointed out and answer with the general opinion of the doctrine, we have that the conflict as an interactional process is not a single or spontaneous fact, but it develops over time.

Based mainly on the methodology proposed by Highton and Álvarez (1995), we will make a brief description of the conflict development process in application to our theme.

3.1.- Existence of a conflictive situation

In a strict sense, the problematic situation that originates the conflict over food and the sine qua non of the right to food will always be given by the existence of a state of economic need.

Thus, one of the parties to the conflict, "the food" perceives a state of insufficient or economic lack of goods necessary for their subsistence, called " state of need ". This circumstance prompts him to request, with respect to whom he considers to have a duty, " the food provider ", the necessary financial assistance, called " Alimony ".

3.2.- Manifest conflict

Seeking the satisfaction of the interest of each party, the conflict goes to the stage of manifestation when a triggering event occurs, such as the public or private discussion caused by divergent perceptions about the real need, extension and quantification of the requested pension.

To the effect the opposition of the feeder can be due to two reasons, in which jointly or alternatively, he perceives that:

1. a) The food has no needs or has less than the requested amount b) The food has no capacity or only has to meet a certain amount and not the one wanted by the food.

3.3. The search for balance

The proactive attitude in search of this balance in general is held by the interested party who is affected by the state of need, who can go to a judicial request that results in a sentence, or seek balance through non-adversarial means, such as mediation or transaction.

3.4. The balance of power

Which is achieved through an act of authority or through an agreement of the parties, an act that will be authorized by the court in view of the principle of inalienability of future maintenance.

3.5. The breakdown of balance

It is with regard to the food conflict that we can especially observe this situation, since the solution reached, whether judicially or extrajudicially, will have a stability subject to the variation of the circumstances taken into account at the time of the fixing of the food. That is, once the alimony is determined, it may happen that one or both parties perceive that:

1. a) The food needs have increased or decreased; b) The economic capacity of the food supplier has increased or decreased

Consequently, this variation in circumstances may be the cause of a new state or conflict situation.

SUMMARY OF MEDIATION MODELS IN RELATION TO THE FOOD LAW CONFLICT

1. Introduction

1.3.- THESIS

1.3.1.- GALINDO Almeida, Bertha. Family mediation as a resource to reduce civil judicial conflicts. Thesis (Master in intervention and systemic family counseling). Quito, Ecuador. Salesian Polytechnic University, Faculty of Human Sciences and Education. 2007. 135 p.

1.3.2.- JARPA Arriagada, Carmen G. Family mediation: senses and co-constructions from the perspective of the mediators tendered in the province of Ñuble. Thesis (Master in Family. Mention Family Intervention). Chillán, Chile. Biobío University, Faculty of Education and Humanities Department of Social Sciences. 2008. 234 p.

2.- ELECTRONIC DOCUMENTS

2.1.- FARIÑA, Gustavo. Harvard is not to blame

2.2.- ROMERO Giménez, Carlos . Mediation models and their application in intercultural mediation.

2.3.- EXTERNAL UNIVERSITY OF COLOMBIA, Directorate for Human Rights and Access to Justice. Mediation Process and Mediator Skills. "Training for officials and training of citizens of Bogotá as community mediators for the capital district.". Santafé de Bogotá, April 2002.

atecex.uexternado.edu.co/mediador/documentos/habilidades.pdf.

3.- LAWS

3.1.- CHILE. Civil Code, consolidated by DFL No. 1 of May 30, 2000. Version of September 24, 2009. Santiago de Chile.

3.2.- CHILE. Law 14,908, On Abandonment of the Home and Payment of Alimony, Reconsolidated by DFL No. 1 of May 30, 2000. Version of September 24, 2009. Santiago de Chile.

3.3.- CHILE. Law 19,968. Create the Family Courts. Version of 15 of 09 of 2008. Santiago de Chile.

4.- OTHERS

Northern Catholic University, Distance Education Center. Introduction to the study of family mediation. Bibliographic material of the Diploma in Family Mediation, program Nº886. Antofagasta, Chile. 2011.

FARIÑA, Gustavo. Harvard is not to blame. http://www.todosobremediacion.com.ar/component/content/341?task=view..

ROMERO, Carlos Giménez. Mediation models and their application in intercultural mediation.

RAMOS Pazo, René. Family Law Manual. Volume II, 6th ed. Santiago. Editorial Jurídica de Chile, 2009. p. 525.

LASARTE Álvarez, Carlos. Civil Law Compendium: Social Work and Labor Relations, 2nd ed. Madrid. Librería-Editorial Dykinson, 2005. p. 398.

Force to make a brief parenthesis in our work the following point: in relation to compulsory mediation, the question arises ¿art. 106 of law 19.968 also includes voluntary food? First of all, I must point out that voluntary maintenance is governed by the express norm, first of all, by the will of the testator or the stipulations of the contract, (donation or nameless) and supplementary in the voids of this will, by the norms that regulate inheritance law or obligations, as appropriate. Consequently, even though the family courts law grants them the knowledge to know without distinction, the causes related to the maintenance right,A logical and harmonious interpretation leads to the conclusion that the conflicts that may arise in the matter of voluntary food are beyond the competence of the family courts, in the same way it should be understood that their birth, modification and cessation is a purely civil matter in which the Mediation is not mandatory, but there is nothing to prevent the parties from voluntarily submitting it to mediation.

This by the prescribed in art. 337 of the Civil Code and the context of the provisions that regulate legal maintenance: “Art. 337 of the Civil Code: “The provisions of this title do not govern with respect to food allowances made voluntarily in a will or by inter-living donation; about which must be at the will of the testator or donor, as soon as he has been able to freely dispose of his "

It indicates the art. 203 of the Civil Code: Art. 203. When the filiation has been judicially determined against the opposition of the father or mother, he or she will be deprived of parental authority and, in general, of all the rights that by the ministry of law are they confer on him regarding the person and property of the son or his descendants. The judge will declare this in the sentence and this will be recorded in the corresponding sub-registration.

Instead, the father or mother will keep all his legal obligations whose fulfillment is for the benefit of the child or his descendants.

However, the father or mother will be restored all the rights of which he is deprived, if the son, reached his full capacity, manifests by public deed or by will his reestablishment in them. The reestablishment by public deed will produce effects from its sub-registration to the margin of the registration of the child's birth and will be irrevocable. The reestablishment by testamentary act will produce effects from the death of the deceased.

Art. 336 of the Civil Code: “Notwithstanding the provisions of the two preceding articles, past-due alimony may be waived or compensated; and the right to sue them, be transmitted by reason of death, sold and assigned; without prejudice to the prescription that corresponds to the debtor ”.

VECCHI, Silvia and GRECO, Silvana. Reflective Design in the Practice of mediation. At SCHNITMAN, Dora Fried, coord. New paradigms in conflict resolution: perspectives and practices. Buenos Aires. Ediciones Juan Gránica SA 2000. Page 235

GALINDO Almeida, Bertha. Family mediation as a resource to reduce civil judicial conflicts. Thesis (Master in intervention and systemic family counseling). Quito, Ecuador. Salesian Polytechnic University, Faculty of Human Sciences and Education. 2007. p. 36.

Based on a Harvard model according to the Fisher - Ury - Patton method. Get Yes. The art of Negotiating without giving in. Translation by Aída Santapau. English Edition 1981-1991. Barcelona. Ediciones Gestión 2000 SA 2005

Every negotiator has two areas of interest: a primary interest, something that is expected to be obtained from the negotiation (interest in the substance), and a greater or lesser, depending on the case, in maintaining or not deteriorating the link with the other party (interest in the relationship). It is convenient for this that both interest levels are kept separate. Ibid. P. 36.

Based on RA Baruch Bush and JP Folger in their book "The Promise of Mediation". 1st Ed. Translated by Aníbal Leal. English edition 1994. Buenos Aires (Argentina); Ed Gránica 2006.

“In its simplest expression, revaluation means the return to individuals of a certain sense of their own worth, of their strength and their own ability to face life's problems. Recognition implies that acceptance and empathy with respect to the situation and problems of third parties is evoked in individuals. ” Ibid. P. 21

Based on the work of MUNUERA Gómez, Pilar on “The Sara Cobb circular narrative model and its techniques”. Portularia Magazine, Vol. 7, (No. 1-2): 85-106. 2007.

" Circular communication is one that is understood as a whole in which there are two or more people and the message that is transmitted includes the verbal elements digital communication, which has to do with the content, and the paraverbal elements (body, gestures, etc.) analog communication, which has to do with relationships. By taking communication as a whole, the parties cannot stop communicating. " Example: when a question is asked and the other person does not answer, silence can be interpreted as lack of interest, contempt, indifference.

Circular causality : « There is no single cause that produces a certain result, but there is a circular type of causality, which is permanently fed back.» (Margarita Fox M., Cristina Culotta and Alicia Duro, “Advances in Mediation and Conflict Resolution, help to achieve a peaceful coexistence ”Ed. SRL 2006, Argentina, p., 89)

MUNUERA Gómez, Pilar. Op. Cit. P. 88 et seq.

Cited by Giménez R, Carlos. Op. Cit. P. 81

Understood the word "difference" as disparity of interests, perceptions, etc.

This possibility for legitimation is based on at least two pillars: on the one hand, the willingness of the parties to access and stay in the mediation process, and on the other hand, the work of the mediator so that the recognition of the other advance and consolidate. (Giménez R., Carlos Op. Cit pag. 82).

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