Principle of Voluntariness in Family Mediation and Its Tension with Mandatory Judicial Referrals

Abstract

Family mediation, conceived as a self-composition mechanism aimed at protecting children and adolescents, is founded on the principle of voluntariness, understood as the freedom of the parties to decide whether or not to use this mechanism and whether to remain in it. This principle is contrasted with the practice of judicial referrals, which, in many cases, operate as implicit or mandatory requirements for the continuation of the process. The objective is to analyze the principle of voluntariness in family mediation and its tension with mandatory judicial referrals, identifying its normative, doctrinal, and jurisprudential foundations, as well as the effects it generates on the exercise of the right to effective judicial protection and the autonomy of the will. The methodology is developed under a qualitative approach, through a documentary review of national and international regulations, jurisprudential analysis of decisions by family court judges and the Constitutional Court, and comparison with specialized doctrinal contributions on mediation and due process. The results show that, although the regulatory framework recognizes voluntariness as a guiding principle, certain judicial referral practices distort mediation by turning it into an almost mandatory procedure, which weakens trust in the mechanism, affects the authenticity of the parties' consent, and reveals the need for clear guidelines to harmonize the promotion of alternative methods with strict respect for voluntariness.