Mediación y religión. Luces, sombras y oportunidades

Landete Casas, J., Mediación y religión. Luces, sombras y oportunidades, en Barona Vilar, S. (ed.), “Meditaciones sobre Mediación (MED+)”, Tirant Lo Blanch, ISBN 978-84-1113-568-9, Valencia 2022, pp. 701–719. Deposited in RODERIC (official repository of the Universitat de València): https://hdl.handle.net/10550/94794 ABSTRACT The contribution submitted for evaluation is once again part of a monograph written by specialists from other legal disciplines, to which I was invited to contribute. Directed by one of today’s leading scholars in the field of Mediation (and holder of the institutional Chair “Cultura de la Mediació” at the Universitat de València), Prof. Barona Vilar includes among the various proposals for a future drafting of a mandatory civil mediation law those developed in my chapter. One fact that should not be overlooked is that Spanish society, since the promulgation of the 1978 Constitution, has been characterized by a process of cultural and religious pluralization. This phenomenon does not differ from what is happening globally and implies a transformation of classical concepts and assumptions regarding what constitutes a State and what its identifying elements are. This religious fragmentation has been explained by the convergence of two factors: a) On the one hand, the overcoming of the territorial model of religion. The diversity of religious denominations adapted to the societies in which they are established has contributed to the dilution of dogmatic uniformity into multiple religious expressions stemming from a common trunk. b) On the other hand, migration has challenged the classical concept of society. In the State of the third millennium, there is no longer a single society but rather a set of cultures linked by various common characteristics — nationality, language, history, traditions, etc. One of the areas where this fragmentation resulting from migration is most visible is religion. Religion becomes an identity factor that is consolidated through migration. The cultural integration of migrants into host societies paradoxically strengthens their religious attachment to their cultures of origin. Migrants seek a better life in their destination countries while simultaneously resisting the loss of identity that connects them to their homeland. That identity link is often religious. In this regard, the role played by religious denominations in host States is reinforced, as they channel through their norms the prevention of uprootedness. This occurs primarily through family law norms, which perform a dual function essential to maintaining identity: a demarcation function, determining who belongs to the community and how, and a distributive function, affecting marital, intra-family, and intergenerational relationships. For this reason, my work emphasizes the foreseeable effectiveness (and certainly greater than currently envisaged) of mediation conducted by ministers of religion, on the same level as legal professionals (lawyers, notaries, court clerks) or related disciplines (social workers, labor relations graduates, psychologists, etc.). As I point out, the principal advantage of ministers of religion lies in the authority they exercise over the parties in conflict. This facilitates the procedure and ensures stable compliance, since personal commitment is reinforced by communal commitment. Moreover, incorporating ministers of religion into the functions envisaged for mediators would provide greater visibility to religious minorities established in Spanish society, stemming not only from religious diversity but also from international migration. However, as I have developed in the chapter and summarized here, there is a risk of losing sight of the possible instrumentalization of religious minorities by the States from which they originate or which financially support them (for example, by building places of worship in destination countries or training ministers of religion who will lead prayers or govern the community). This leads us to a factual reality with inevitable legal repercussions: the desire for social integration and a corresponding legal status that respects such integration while guaranteeing the maintenance of public order protected by law (Art. 16.1 of the Spanish Constitution). The social integration of religious minorities has followed very different historical models: from forced assimilation to the creation of legal (and even territorial) ghettos. Unsurprisingly, this has led to numerous armed conflicts, both internal and international. In contemporary societies, however, the desire for integration is channeled through democratic and voluntarist criteria: the consent of members of these communities to belong to such societies. Thus, multiculturalism must be grounded in free consent and acceptance of the constitutional order. In Spain, Organic Law 7/1980, of 5 July, on Religious Freedom, has embodied this model of integration of religious diversity. In conflict resolution, and especially in mediation procedures, impartiality and neutrality are often identified with the absence of values or beliefs that might interfere with the voluntariness and contractual freedom of the parties. Religion is therefore viewed as an influence to be avoided or set aside. However, the influence of religious beliefs in mediation has proven to be effective and positive under certain circumstances. This type of study has been conducted in contexts where mediation has a longer tradition. Specifically, U.S. scholarship has identified this favorable influence within the following parameters: a) Individuals often seek a “spiritual” meaning in the conflicts they suffer and tend to turn to mediators whose values and beliefs they recognize as worthy of consideration during the mediation process. At this point, it is necessary to recall the risk posed by religious dogmatism or fundamentalism, which may become an obstacle to any settlement affecting non-negotiable values. b) Secondly, the presence of religion does not prejudice the mediator’s neutrality or the parties’ right to free will; on the contrary, it may reinforce them. The mediation environment is imbued with mutual trust, both because the limits — presumed to be uncontestedly accepted by the parties — define the object of negotiation, and because of the strengthened authority of the mediator. It has been argued that the mere presence of a religious mediator in the room fulfills more a function of “being” than “doing.” This assertion has led States such as Canada and the United Kingdom to consider opening their jurisdictional systems to solutions arbitrated by religious courts. Notably, their positions have differed when dealing with rabbinical courts (Beth Din) as opposed to Sharia courts seeking such recognition. Obviously, the risk to be averted is that the participation of religious institutions in conflict resolution should not entail a violation of public order, which the State must guarantee. There are situations in which one party may be in an initially disadvantaged position (for example, women), which would hinder recognition of mediation conducted within a religious denomination. We thus arrive at the practical application of equity as a more efficient means of achieving the intended objective. Equity in practice aligns more closely with shared values and beliefs than with the inevitable rigidity established in legal norms. The limit of this equitable alternative to judicial resolution lies, on the one hand, in the autonomy of the parties’ will, allowing them to dispose of their assets and rights, while respecting mandatory (ius cogens) rules. Having established these foundations and demonstrated the usefulness of religious mediation, it is necessary to avoid what is otherwise inevitable: that believers may bypass State courts and resolve their conflicts solely according to their religious norms. The reaction of State law to the Islamic institution of Kafala is paradigmatic in this respect. Religious institutions are competent to analyze and resolve crises arising in families involved in this type of Islamic foster care. It will be the State’s responsibility to grant civil effectiveness to the decisions of such religious courts or to ignore them. What is undeniable, however, is their living and increasingly widespread presence in Spanish society and among foreign residents in Spain. For these reasons, I argue in my chapter that admitting those who, under our legal system, hold the status of minister of religion into the procedural statute of mediator would greatly benefit our multicultural society, believers, and the legal system itself. This would avert the risk of “invisible mediations” that might conceal serious violations of public order or equality rights that must be guaranteed to every individual, especially the most vulnerable. QUALITY INDICATORS Since the contribution appears in a monograph, the principal quality indicator is found in the Scholarly Publishers Indicators, which for 2022 assigns Tirant Lo Blanch a general ICEE index of 1096, ranking it first among all publishers included in its metric methodology. In the specific field of Law, while maintaining its first position in the editorial ranking, its ICEE index is 624. The publisher’s prestige guarantees that the publication in which this chapter appears is of high scientific quality and is expected to achieve wide dissemination within specialized scholarship, given its recent publication and distribution.

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