XNUMXst Century: Conflict Mediation and Other Non-Adversarial Dispute Resolution Methods*

Tania Almeida

consultant. Teacher and Supervisor in Mediation. Director-President of MEDIARE - Dialogues and Decision-Making and Member Processes of the Vice Presidency of CONIMA – National Council of Mediation and Arbitration Institutions.

Introduction

I take great interest and pleasure in locating the ideas and cultural movements of your time. Resolving conflicts by including the figure of a third party understood as impartial to act by facilitating dialogue is an ancient idea. Conflict Mediation, a negotiation instrument that also uses the figure of an impartial third party, is, however, a young woman in her early thirties. At the time, it was recreated as a structured dispute resolution process, with its own ethics and procedures.

The demand for new negotiation instruments that took place in the second half of the last century was also due to the increasingly tenuous borders between cultures and markets, attributes of the globalized world, and to the speed of change, a requirement of technological advancement. Daily negotiations of purposes, proposals and ideas became necessary. It was natural and consequential to shorten the average life of products and ideas, as well as the proposed solutions for situations and events of daily life that quickly became outdated.

It is in this cross-cultural, fast and technologically advanced scenario that we can live longer while we are equally obliged to create products and solutions with an increasingly shorter life span so that they can be quickly replaced by new and current ones. This is the stage for the Extrajudicial Conflict Resolution Methods - MESCs, equally fast mechanisms, capable of adapting to the changes of each small period and the demands of different cultures.

Their informality allows them to keep up with the times, their flexibility allows them to articulate cultures, their speed of resolution gives them harmony with the necessary speed of solution demanded by this beginning of the millennium. When we consider the elements of this cultural macroscenario, we identify how interesting it is to contextualize the ideas with their time. They tend to be reliable daughters of their time and to be consistent with it.

The Mediation of Conflicts

The realization that eighty percent of the cases that occupied the tables of judges could dispense with the legal look and benefit from direct negotiation motivated Americans in Florida, in the seventies, to design this process of assisted negotiation known as Mediation.

Belonging to the group of Extrajudicial Conflict Resolution Methods, Mediation is currently being practiced on all continents and arrives in Brazil after visiting continental partners such as Argentina, Bolivia and Colombia. Legislated in some of these places, it rehearses the same movement in our territory.

The Mediation Bill of Federal Deputy Zulaiê Cobra (no. 4287/98) is being processed in the Chamber of Deputies, which is awaiting a vote after having won the final wording. The Escola Nacional da Magistratura and the Ordem dos Advogados do Brasil – SP offered, in October 2002, the third version of a Draft Law on Paraprocedural Mediation, so called because it is linked to the Civil Procedure. This text has been adapting its wording based on the dialogue of its writing team with civil society and with other legislation and mediation practice sites.

Having as a fundamental principle the Autonomy of the Will, Mediation is a resource to be elected by those who are available to act in good faith and to review the positions previously adopted in attempts to resolve the disagreement; by those who prefer to participate directly in the solution to be elected and be its author; by those who do not identify another resolution instrument that better meets their demand; for those who want speed and secrecy and who want to have control over the negotiation process and its procedures; and for those who value the personal relationship or coexistence with the one who litigates or cannot do without it.

The preservation of the relationship between those involved in the Mediation process and the identification and learning about their own negotiating capacity are secondary gains of this process. Mediation has the common interests of the litigants and mutual satisfaction as its object. It is a process aimed at articulating these interests and seeking to serve all those involved, directly or indirectly, away from the adversariality caused by the results in which someone loses and someone wins. Its objective is the Authorship of the parties for the solution built, an essential element of mutual satisfaction and availability to comply with the agreement arising from it.

To choose it or practice it, it is necessary to know it. To the former – the voters – this opportunity is offered through Pre-Mediation, an occasion in which the mediator and the future mediated exchange information and clarifications about the process and the matter to be mediated. This moment precedes the signing of the Term of Commitment that characterizes your choice. Practitioners are required to have specific training, knowledge of the subject to be mediated and exemption from interests in relation to the parties and the mediated topic. They will sign a Declaration of Independence regarding their acceptance of the role and their exemption from interests.

Mediators are, therefore, impartial third parties understood and elected by all parties involved in the disagreement. In addition to the aforementioned impartiality and competence, they must conduct the business process with diligence and secrecy. They are bound by the Mediator's Code of Ethics to secrecy, not being able to dispose, for any purpose, of the knowledge of the matter brought to the Mediation process. In the same way, the parties will commit themselves, giving the confidentiality to the extent they decide. All those who participate in the Mediation process will be obliged to do so: guests of the parties, other professionals and staff of the office or entity that manages the process.

Specialists in human communication and negotiation, mediators must be able to facilitate dialogue in adversarial situations. They help in the identification of common and divergent interests, in the construction of a negotiation agenda, in the analysis of the costs, benefits and repercussions on third parties of the proposed solutions, in maintaining the balance of participation between the parties and the balance of knowledge necessary for decision-making actions. Of Quality. Co-mediation – coordination of the process by a pair of mediators – has been universally used in order to increase the quality of negotiation through the complementarity of the mediators' knowledge.

Mediation has been the method of choice in situations of conflict and disagreement that require cooperative action, co-authorship in creating the solution and maintaining the relationship of coexistence and negotiating capacity over time. In October 2002, Jimmy Carter was awarded the Nobel Peace Prize for his role as an international mediator – especially in war conflicts. International, commercial, business, community, family, partnership or neighborhood relationships can especially benefit from Mediation.


Other Non-Adversarial Dispute Resolution Methods

The proposal for a non-adversarial resolution, a requirement of globalized coexistence, revived the negotiation and diversified its scope of action. Just as negotiation was joined to theories of human communication and, later, to other theoretical pillars, recreating Mediation in the way we know it today, it also joined other resources for managing and resolving disagreements, giving rise to hybrid instruments for resolution. of conflicts. Arbitration, Mediation, Judicial Resolution and Negotiation are the basic ingredients of the most recent instruments in Dispute Resolution.

The range of negotiating resources that we know today made it possible for us to distance ourselves from dichotomous choices to manage our disputes – Negotiation or Judicial Resolution, Mediation or Arbitration – and to move closer to elections tailored to our conflict or our issue. Adequacy of the instrument to the dispute is today the expression of order when dealing with dispute resolution. The A of ADRs – Alternative Dispute Resolution, in the original – could already represent the term Amicable and, more recently, the word Appropriate. When we have a range of options to settle our disputes, we can think about suitability. It's like owning two pairs of shoes and two suits, or a few pairs and a few suits.

The Multidoor Conflict Resolution System _ multi doors system, already adopted by some American states, is part of the options panel of the American Arbitration Association and the International Chamber of Commerce – ICC, renowned entities in the field of extrajudicial dispute resolution. It offers customized features, some of which have been formatted to act preventively, resolving the conflict during construction, or before it – just in time resolution.

Reflecting the global trend of customizing products and the global need to act in real time instead of delaying, stocking up (see the industrial parks of car assemblers that house their suppliers so that they are fed in the exact measure of the needs of a certain moment of the production), the methods of conflict resolution are suited to that era and its trends.

Bringing together components of the Judicial Resolution, Negotiation, Mediation and Arbitration, the Mini-Trial convenes a panel formed by an impartial third party elected by the parties and by senior executives of companies in disagreement and distanced from the issue in question to analyze the defense presented by the lawyers for the companies in question. After the aforementioned defense, the solution may come from the direct negotiation carried out by the executives who are members of the panel, from the Mediation between them coordinated by the impartial third party or from their arbitration award. This resolution process allows for successive negotiation attempts, in the order described, to be carried out or for the election of one or part of them, as determined by the parties.

Using the guidelines of Technical Expertise, Judicial Resolution and Arbitration, the Neutral Evaluation of a Third Party (Factfinding / Neutral Evaluation) offers the possibility of helping the parties that intend to negotiate or judicially resolve a dispute to know the resolution trend. The non-binding technical opinion offered by an impartial third party elected by the parties can be used as a basis for a direct negotiation between them, or for the choice of another method of resolution. Some contexts have invited retired judges to this place of impartial third party and called the instrument Rent a Judge.

Contracts involving multiple parties may use dispute resolution methods practiced in real time and guided by the expertise of impartial third parties, by negotiation and mediation techniques. The Review Boards, composed of a panel of impartial members elected by the parties involved in a contract, monitor the development of projects and offer possibilities for resolving the impasses that arise during their execution. In civil construction, these panels have been called Partnering.

Also with regard to multiple parties, as is the case with conflicts arising from environmental issues, setting up a resolution process that combines different methods of conflict resolution can be of recognized usefulness. We can be less and less attached to the idea that there is only one possible solution to a given issue, and business issues involving environmental preservation are example situations.

The idea of ​​acting preventively in the formation of conflicts gave rise to another possibility of real-time resolution known as the Conflict Management System (SMC), an instrument that has been used by some companies. These systems imply a cultural change in the way of dealing with differences and internal disagreements and those that occur in business interfaces – relationships with stakeholders. The SMCs propose that the aforementioned differences and disagreements be managed and managed within the corporate walls before they gain externality. They act as a backbone, crossing the entire length of the company and covering all its segments. They invite the company's members, as well as its stakeholders, to try the direct negotiation and mediation already practiced in the company – workplace mediation – before seeking the same instruments outside the company, leaving judicial resolution as an extreme option. The idea of ​​the SMCs is based on Mediation, in guiding cooperative and non-adversarial solutions – such as cooperative management – ​​and in the co-authorship of decisions.

Arbitration is also part of the multi-door dispute resolution system and may be preceded by Mediation or be formally articulated in a process called Med-Arb. The Med-Arb composition can be previously elected by the parties, by mutual agreement, and request the mediator to arbitrate on the issue in question if the Mediation does not allow the construction of agreements, or there are issues to be decided due to partial agreements. This process has been criticized by some and aroused defense by others. Those who criticize point out the possibility of distancing the impartiality of the impartial third party during the Mediation phase due to the fact that it is predestined to act as an arbitrator. Those who defend emphasize the fact that the process is elected by the parties and recall that the impartial third party chosen by them was considered qualified to be impartial in the occupation of the dual function.

It is worth mentioning that the last text of the Draft Law on Paraprocedural Mediation includes the multi-door system as a resource to be used by the Judge in the preliminary hearing in which the agreement is not reached. The text mentions Mediation, Arbitration, Conciliation and Third Party Neutral Assessment as possibilities.

 

Conclusion

The world trend of privileging prevention is leading us to use as a negative reference the disastrous experience offered through the times of negotiation of differences through force or struggle. In its place, dialogue gains importance in the composition of differences. The prominent place of dialogues can only come after man had to abandon the idea of ​​certainty and needed to blur the boundaries between cultures. He can no longer stop looking at the world globally and systemically and, therefore, he can no longer give up cooperative solutions and actions under penalty of threatening his own survival.

The methods of negotiating conflicts based on dialogue are beloved children of that time and that time and appear at a speed consistent with that used by the third millennium to implement changes. They remain faithful to the ethics of coexisting with differences and arrive to complement what we already know in this field and not to compete with what exists.

They improve, customize, resolve issues in the real time they occur, prevent the formation of conflicts, reduce their permanence in time and their recurrence. This is how the methods of self-composition of controversies that have recently emerged on the world stage work.

The permanent review of our beliefs and the usual ways of dealing with situations, in addition to the flexibility to review the old and add the new are requirements of the XNUMXst century. Until the end of the industrial age, man had to adapt to the products offered and be content with a demand greater than the supply. Today, in the age of knowledge, the focus is no longer the product and becomes the need(s) of man. Among their contemporary needs is the learning and practice of productive dialogue in the composition of differences. At this moment, methods that facilitate and favor this dialogue and seek co-authorship responsible for what is lived and what is provided for the other to live are essential.

It is in this scenario, with these purposes and under these requirements, that the Extrajudicial Methods of Conflict Resolution appear in our culture.

* Text revisited in 2006. Published in the Proceedings of the Seminar on Alternative Methods of Conflict Resolution of the National Confederation of Commerce, 2002.