Conflict Mediation: A means of preventing and resolving disputes in line with the current situation*

Tania Almeida
Master's student in Conflict Mediation. Consultant, researcher and teacher in Conflict Mediation and Dialogue Facilitation. She chairs MEDIARE – Dialogues and Decision-Making Processes. Doctor. Postgraduate in Neuropsychiatry, Psychoanalysis, Sociology and Business Management

 

Contemporaneity presents us with several challenges. If, on the one hand, the speed of change contributes to the average lifespan of our ideas getting shorter and shorter; on the other hand, technological advances and preventive health care allow us to live longer. Consequently, we need to confront more changes during our lifetime. You have to be curious in life, always reviewing what we think about people and what we think we already know how to do.

Some ideas, such as Mediation, emerge in line with the needs of the time, but find subjects with still old views, in the process of paradigmatic change. For some, it will take a longer time to adapt to the discomfort that the new causes. For others, the proposal sounds passionate, intriguing.

Mediation arrives in line with its principles, collaborating, not competing, with existing means of conflict resolution. It is enough for all peoples and for all social conditions, but not necessarily for all issues. It arrives pretentious, expanding the possibilities of intervention considered so far in this field; it is willing to resolve conflicts and also to restore the social relationship between people, causing repercussions of social scope that were not previously included in the methods of conflict resolution.

It does not restrict the professions of origin nor does it require previous academic training, greatly expanding the panel of impartial third parties that can contribute to social pacification. It intertwines disciplines and demands from all its practitioners the expansion of perspectives and knowledge. It enables a greater number of people to act in facilitating dialogue to resolve issues and, above all, to act preventively on issues of coexistence that interfere in relationships, but are not the object of resolution through formal means.



ADRs in the contemporary world

The expression Alternative dispute resolution (ADR) and its translations appear bringing hope to all those who have realized and realize that the methods of conflict resolution, routinely practiced and incorporated by the western world, have proved to be insufficient. Under the umbrella of ADRs, there are dozens of procedures that enable the resolution or positive management of conflicts, “without resorting to force and without having them resolved by a judge” (ÁLVAREZ; HIGTON; JASSAN, 1996, p. 33). ). [1]

In Latin-speaking countries, including Brazil, the literal translation - Alternative Dispute Resolution (RAD) is used, although, in Brazilian territory, the expressions Alternative Conflict Resolution Methods (MASCs) and Extrajudicial Dispute Resolution Methods Conflicts or Disputes (MESCs) are also in force.

The idea of ​​being alternatives primarily underpinned the standard method at the time – judicial resolution. In reality, the Judiciary was once an alternative proposal to direct negotiation and the use of force as a means of resolving disagreements.

It is because men did not show sufficient skill in direct dialogue to manage their differences that force became a guide for negotiation. It is because force showed its consequences for coexistence that man created the laws. It is because the laws are unable to resolve disputes, both in terms of their complexity of composition and the time desired for their resolution, that man resumes direct negotiation, assisted by third parties, characteristic of the so-called alternative means.

It is important to mention that different ways of negotiating disputes have been known and used since the beginning. Indigenous tribes, religious communities and oriental cultures are examples of contexts that favor the peaceful resolution of disputes, based on dialogue, even before the impulse acquired by the ADRs, in the second half of the last century.

The social movement of the 60s, which proposed paradigmatic changes in the lens of analysis of human behavior, encouraged numerous new, or unusual, alternative possibilities of expression and conduct, and was also present in the field of conflict management. It was the Americans who, at the time, focused more on the topic, emphasizing ADRs.

Frank Sanders (apoud HIGHTON; ÁLVAREZ, 1995, p. 26) identified special motivations for the movement of ADRs in American territory: “(i) the decongestion of the courts, as well as the reduction of costs and time in the resolution of conflicts; (ii) greater community participation in conflict resolution processes; (iii) facilitating access to justice; and (iv) offering more effective forms of dispute resolution”.

The term ADR has been a constant object of reflection when translating Alternatives by 'alternative', a word originally used by the Americans. It is necessary, at each moment and in each culture, to try to understand the intention of choosing the alternative term.

For the American Arbitration Association (AAA), the term ADR refers to “a variety of techniques for resolving disputes without litigation”. In its Mission, the American association strives to create alternative systems that meet the needs of parties involved in disputes. Being an alternative to litigation and being focused on meeting the needs of the parties is all that is best for an 'alternative' method.

Under the umbrella of ADRs, Mediation is not recognized as an alternative to the Judiciary. The Mediation institute can be useful even in situations where the judicial resolution does not apply (therefore not constituting its alternative) or, still, it can act in a complementary way, in the sense of providing what is lacking in the Judiciary. We must think of Mediation as an alternative to litigation, and not the Judiciary, and consider the repercussions of its practice on the decongestion of the courts as a consequence, and not as an objective.

Even with the contribution of the French, translating the 'A' of ADRs as friendly –Amicable Dispute Resolution – reference found in the International Chamber of Commerce based in Paris – the most accepted meaning today is 'appropriate' or 'adequate'.

With the emergence every day of new methods, sometimes hybrids, resulting from the combination of existing ones, it becomes possible to adapt the problem situation to the instrument that seems more effective and efficient. The practice of designing, for each issue, new means of conflict resolution, inspired by procedures of known methods, is already in force.

Os Dispute Review Boards (DRBs) [2] are examples of this practice and aim to resolve disputes in real time, calling on entrepreneurs of large projects, such as the construction of the Eurotunnel, to act in a preventive manner in relation to the establishment of conflicts - when the disagreement is resolved in real time, the conflict it does not happen, and this possibility has been identified as preventive in the field of conflict management.

Thus, the panel of alternative dispute resolution means is expanding every day. This occurs in relation not only to the emergence of different methods of conflict resolution in real time – just in time resolution – but also to the growth of the movement aimed at direct dialogue – one on one dialogue.

 

Dialogue as a privileged vehicle of expression in contemporary times

The ability for direct dialogue (one on one dialogue) in the negotiation of differences is a necessary competence for the man of the XNUMXst century, due to the speed of changes and the complex coexistence with diversity, understanding it as legitimate and desirable.

The movement towards dialogue is strongly fueled by a research group at the Massashussets Institute of Technology (MIT), which is dedicated to the subject. Just as Harvard modeled principles of negotiation for the world through the Harvard Negotiation Project, MIT offers dialogue guides, identified and worked on in the Dialogue Project. [3] Enabling the expression of all members of the dialogue, making oneself available for an inclusive listening - one that considers the other's point of view as capable of creating new possibilities for understanding and action -, accepting the positivity of difference and giving up certainty , admitting the new, make up these guidelines.

To William Isaacs (MIT Dialogue Project), we would only be in dialogue when we were surprised by our own speech, that is, when our narrative was new to us, as we would have already modified initial positions by incorporating the new and the different, offered by the interlocutor(s)( es). For the author, leaving a conversation, thinking the way it was thought before it started, would mean that the dialogue has not been established.

Currently, companies train their employees to consider interpersonal dialogue (one on one dialogue) as the first negotiation option and to use third parties to act as dialogue facilitators – internal and external mediators to the corporation – before resorting to adversarial methods. [4]

Methods in which only one of those involved in the disagreement are given reason are categorized as adversarial – 'lose-win' – and as non-adversarial those that aim at the benefit and satisfaction of all those involved in the resolution, without categorizing as right or wrong. wrong any of the people in disagreement – ​​'win-win'.

Mediation not only integrates the group of non-adversarial methods, but also rescues direct dialogue along the lines proposed by the Dialogue Project, provoking decision-making based on information – responsible authorship – and on meeting the interests and needs of all those involved.

 

The Institute of Mediation: fundamental principle and benefits provided

Based on the principle of autonomy of will, Mediation includes in its ritual a preliminary phase – pre-mediation –, when a two-way, informative interview takes place.

In pre-mediation, people in disagreement are welcomed by the mediator or technician who has knowledge about the institute and who offers them information on the subject, answers any questions and offers clarification material. At the same opportunity, people expose the theme that brings them to Mediation so that it can be identified whether the matter can be benefited or not by the institute. This is also the time when the mediator assesses his independence – absence of conflict of interests – with regard to the topic and the people involved – as well as assessing the need or convenience of acting in co-mediation.

Co-mediation – conducting the process by a pair of mediators – is a usual practice and aims to enhance the quality of the work to be developed as a result of the complementary performance of knowledge, conduction styles and gender. Even though the practice of co-mediation is usual, there is no veto to the work single.

Based on the autonomy of the will, which has a wide spectrum in Mediation, people in disagreement choose, or not, the institute; they decide, at each moment, on their permanence in the process; they negotiate the operationalization – joint or private interviews, interval and duration of the meetings, extent of confidentiality for the intermediaries, form and percentage of payment due to each one; they choose solution alternatives and evaluate them in terms of costs and benefits for those directly and indirectly involved; define the solution for each proposition; opt for the greater or lesser formality of the referral to be given to the agreement, when the issue does not require judicial approval.

The authorship of the solutions gives back to the mediates the control of the decision-making process over their own lives and makes it possible for the chosen solution to meet their real interests, needs and values. Authors take care of what they create, which makes the fulfillment of what is agreed in the Mediation a natural consequence and an action based on the commitment between those involved.

Experiencing a dialogue in which one is an author also makes it possible to (re)learn to negotiate differences directly with the other and (re)assume a protagonist position in the construction and deconstruction of the controversies in which one participates.

The institute's forty years of practice have shown that the benefits of Mediation surpass those initially thought – authorship, speed and secrecy. Authorship far transcends the choice of instrument and the choice of solutions. Speed ​​doesn't just shorten resolution time and financial cost; it shortens, in particular, the time and intensity of emotional exhaustion. Secrecy does not only favor future interpersonal and corporate relationships; privacy allows mediators to review and make their positions more flexible without the social pressure that advertising favors.

 

The dynamics of Mediation

Conflict Mediation is, in terms of purposes, the closest instrument to collaborative direct negotiation. As it aims to reproduce it in the presence of a third party, the term 'assisted negotiation' becomes synonymous. Assisted by a third party – the mediator –, who coordinates the dialogue between the mediates in order to keep them as authors not only of the proposed solution(s), but also of all aspects governed by the autonomy of the will. .

Initially inspired by the negotiation process advocated by the Harvard School of Negotiation, it built its rite around the four principles of the teachings of the Harvard Negotiation Project: [5]

1) Discrimination between the issues to be negotiated and the relationship between those involved in the disagreement – ​​mediators recognize that in the dissent, not only the matter, the substance, but also the way we are being and have been treated by this other . Based on this premise, mediators build, with the consent of the mediates, an objective agenda (relating to the matter) and a subjective agenda (relating to the relationship) of negotiation and working both agendas in parallel. This discrimination is made during the hearing of the parties. In the objective agenda, the matter gains evidence; in the subjective, the feelings translated into future concerns stand out, especially [6] or in need of recognition, as well as values ​​wounded in coexistence.

2) Negotiation of positions and not interests – mediators recognize that positions are shields rigid enough to defend interests and important needs, hidden at first. Mediation is part of the package of interest-based negotiations – a recent guide to consensus building. The image that has translated the precious difference between positions and interests is that of the iceberg, that shows the smallest part of its structure – position – and has its biggest mass of ice – interests, needs and values ​​– submerged. It is necessary to submerge in positions, through questions, to achieve the interests and values ​​safeguarded. In an interest-based negotiation, such as Mediation, it is the interests and values ​​that will make up the negotiation agenda, not the positions.

3) Creation of mutually beneficial solutions – by helping mediates to think, format and offer solutions that address all those involved, mediators indirectly stimulate them to exercise cooperation and take care of the restoration of the social relationship between them. Creating mutually beneficial solutions is a difficult invitation to accept. It is not practical in our culture to sit at the negotiating table putting ourselves in the other person's shoes to identify their needs and interests, aiming to include them in the solution to be proposed. We are used to seeking and offering solutions that serve us, without considering, sometimes, the cost to the other person or the objective or subjective possibilities of that other person to serve them. This is a paradigmatic change proposed by this institute, which sometimes demands time for assimilation and implementation;

4) Establishment of objective criteria to obtain consensus – by encouraging mediators to adopt such criteria, mediators facilitate the deconstruction of impasses, making it possible for the election of guides to operationalize a decision not to constitute an obstacle to putting it into practice. If the sale of part of the commercial company is a consensus, objective criteria can help to make it operational; if living with the child(ren) will be defined by mutual agreement, objective criteria can help to effect it; if a group decides, after long negotiations, to commemorate an event with a dinner, objective criteria (use of card, availability of parking, contemporary food with vegetarian dishes, even) can facilitate the choice of restaurant.

Around this dynamic, the Mediation process is installed: listening to the mediates, helping them to negotiate objective and subjective guidelines, encouraging them to authorship and the search for mutually beneficial solutions, directly responsible for the commitment to the execution of the agreement.

 

The theoretical bases of the Mediation rite and its techniques

In addition to the Harvard School's negotiation quadrant, Mediation receives contributions from other areas of knowledge and is characterized by interdisciplinarity.

Communication theories contribute with numerous contributions and support some of the techniques used in Mediation. Human communication is one of the main beams supporting the dynamics of Mediation and needs to be deciphered by the mediator, at every moment, in order to serve as a reference for the identification of the timing and the intervention to be used. More focused on the pragmatism of human communication (WATZLAWICK; BEAVIN; JACKSON, 1967) or on narratives and discourse analysis (MAINGUENEAU, 1997) and their subjectivity, the contributions are numerous. In common, such contributions have the concept of considering language as a scenario where subjects are built, their form of expression and action, always relational, that is, referring to the other.

The systemic look [7] another pillar, helps Mediation to recognize the multifactorial components of disagreements - legal, psychological, sociological, financial, among others - and manage them according to their prevalence, in order to meet the interests and needs of the mediates. Also as a result of the systemic view, mediators understand that the fact brought to the Mediation integrates a chain of past and future events and that their intervention will cause changes in the development logic of this chain, with repercussions on a group of people. Mediators are committed to the course and the result of the Mediation, acting carefully in the conduct of its dynamics, continuously evaluating the adequacy of their performance, as they consider it part of the resolution system. They know that their intervention can contribute to the construction or deconstruction of future impasses.

The contribution of Sociology was decisive to understand the value of social networks in business processes. Mediators are attentive to the negotiation, in parallel, that mediators need to do with their interlocutors – lawyers, friends, relatives, co-workers or colleagues of religious belief, among others. With these people, alliances are established and readings are built on the disagreement and on the opponent, as well as solutions and positions to be defended. The intermediaries cannot, at certain times, progress in a negotiation, due to the loyalty commitment established with their networks of relevance. Sometimes, it is necessary to help them negotiate with these networks, inside or outside the Mediation process, so that the disagreement can result in self-composition. Mediation stimulates the dialogue of mediation parties with their relevant networks and allows them to gain the negotiation room when they are identified as generating impasses to the fluidity of the process, or even when they constitute support for the fulfillment of the agreement.

Mediation is inspired by Law by embracing the purpose of helping people to resolve their conflicts, guided by the parameter of a fair solution, attentive not to harm the legal margins offered by their culture - the request for a legal review of the agreement, before its signature. by the mediating parties, whenever the matter so requires, it complies with an ethical standard in Mediation. The institute fully complies with what the judge Kazuo Watanabe (1988) calls a fair legal order, when he thus categorizes justice as adequate, timely and effective.. In this conception, Mediation enhances access to justice insofar as it is: (i) adequate – when chosen among other methods, as it has a special property of approaching and resolving the issue of conflict; (ii) timely – because it takes place during the time of the intermediaries, as they dictate the duration of the process, largely influenced by their skills and negotiating capacity; (iii) effective – because the solution is built by the people involved in the disagreement, having as parameters mutual satisfaction and benefit, based on meeting their needs.

From Psychology, Mediation imports theoretical readings on human emotional functioning and values, as a constitutive component of disagreements, emotions.[8] Mediation takes care of emotions, indirectly, by being willing to work on the previously mentioned subjective agenda, and by proposing to include the restoration of the social relationship of those involved, as an object of care. Approaches that include human relationships as a focus cannot fail to consider the invariable presence of emotion. Similar to what Foucault thought about the existence of a power game in relationships – he took it for granted and dedicated himself exclusively to thinking about how power was handled –, the presence of emotion in relational games is unequivocal, leaving only identify how it is being managed.

From Philosophy, in addition to Foucault, precious inspirations feed the process of Mediation. Among them is the mediator's main working tool, the questions, which must be offered as in Socratic maieutics. [9] Son of a midwife, Socrates wanted, through maieutics, that people would 'give birth' to their own ideas, after reflecting, instead of repeating, indiscriminately and without critical analysis, thoughts and ideas of common sense. This is the main objective of the questions in Mediation: to generate information for the mediates - those who have decision-making power and will be the authors of the solutions - in order to provoke reflection. In this way, the mediates can be helped to make the ideas brought in the initial phase of the process more flexible, when the real needs and interests of the other are not yet being taken into account.

 

The different schools in Mediation

The initial movement of structuring the dynamics of Mediation around the Harvard School of Negotiation quadrant soon gained theoretical support, which contributed to a greater scope of purposes, to the enrichment of technical contributions and to the emergence of different models of practice.

The initial format of practice, strongly supported by negotiation principles, seems today, comparing it with the subsequent models, more oriented towards agreements and less towards the restoration of social relations. This interpretation lacks reflection, since participating in a process of dialogue governed by the principles of Mediation already makes it possible for the relationships between people in disagreement to be taken care of.

Robert Bush, professor of ADRs at Hofstra University – New York – and Joseph Folger, professor of communication at the School of Communication at Temple University – Texas –, are examples of scholars who added other theoretical contributions to the initial format. The authors wrote the book The Promise of Mediation: a transformative approach to conflict (2004), whose proposal won the world, founded a school and gathered followers. Considered as a modern vision of the ADR movement, this proposal distances itself from the construction of agreements as an objective and privileges the transformation of the conflict – from an adversarial to a collaborative posture.

Named, and thus known, as Transformative Mediation, this type of work aims to face conflict through self-empowerment and recognition of others. Self-empowerment – empowerment – it is based on the identification of the real interests and needs of each one of the intermediaries; while the recognition of the other(s) – recognition – it is aimed at identifying the real interests, needs and values ​​of the other(s). For Bush and Folger, these are the most significant social gains provided by dialogue via Mediation. For the authors, the dialogue between being attended and serving, as long as possible for both, is transformative and translates into agreement as a natural consequence for those who have genuinely experienced women empowerment e recognition. Self-composition translated into agreement becomes a consequence and not an object in Transformative Mediation.

Sara Cobb, an American mediator, proposes a working format that includes the two previous aspects – taking care of the construction of the agreement and, in parallel, the social relationship between those involved. Cobb works with communication and negotiation techniques in a systemic scenario – a systemic view of the conflict and the interaction between mediates, their social network and mediator, commented above, – and adds special attention to the social construction of those involved and their social networks of relevance. Her work is known as the Circular-Narrative Model. [10]

More recent are Strategic Mediation, proposed by Rubén Calcaterra (2002) and Narrative Mediation, encouraged by Gerald Winslade and John Monk (2008). Calcaterra, an Argentine lawyer enthusiastic about what he believes and writes, proposes a working and teaching model in Mediation with an interdisciplinary approach and based on the deconstruction of conflict. Winslade and Monk also work with narrative therapy – based on language and, in particular, on versions of the facts as particular constructions of each subject – and take this reference to the practice of Mediation.

Many mediators prefer to merge different theoretical models in their work. They bring together the techniques, procedures and attitudes used by the different models, placing them in a 'toolbox' (toolbox), in order to use them according to the situation, the occasion, the mediator's style and the profile of the mediates. the best of each thought is brought together in favor of the nature of the intervention, without privileging a single theoretical model in particular.

All the models mentioned are grouped under the umbrella of Facilitative Mediation – the one whose primacy is to facilitate dialogue between people, without directly interfering with the mediator's ideas.

Evaluative Mediation has been used when, at the request of the participants in the Mediation process, the mediator, after exhausting the attempt to conduct the process without giving an opinion, offers his technical view on the issue, in order to contribute to speeding it up. This technical contribution works similarly to the instrument called Neutral Third-Party Assessment [11] and can serve as a basis for accelerating the closing of the deal. In situations where process time and people's time are decisive, as in corporate matters, this format has special applicability and value.

In contexts where Mediation has been known for a longer time and has had its practice renewed, resources such as binding mediation and the Med-Arb and Arb-Med processes were developed. At binding mediation, there is a prior agreement between the parties for the acceptance of the mediator's opinion as binding; the mediator's decision is drafted separately and signed, equally, by the parties, after the possibilities of composition via Mediation have been exhausted. In the Med-Arb appeal, it is agreed, from the beginning, between the people in disagreement that, if the Mediation does not result in an agreement, the mediator will become an arbitrator (if the parties have not pre-established that they will be two different technicians) and will deliberate on the matter, after the arbitration process has been instituted. In the Arb-Med appeal, it is previously agreed that the impartial third party, before starting the Mediation, will conduct the arbitration and deliberate on the matter, placing the result of its decision in a sealed envelope, which will only be opened and validated if the Mediation does not give result. These hybrid models are seen as agile and economical, produce benefits beyond speed and economy, and are particularly accepted in the corporate and contract world.

 

The mediator and his ethical principles, the importance of lawyers and other technicians in Mediation

In order to coordinate the Mediation process, articulating the different knowledge mentioned above, a third party is needed to act in an actively impartial and competent manner – the mediator. The actively worked impartiality, competence, diligence, secrecy and credibility are part of a panel of ethical principles, uniformly practiced by the universe of mediators from different cultures.

Impartiality is used by the word 'active' to characterize a dynamic care that mediators must have to remain impartial during the conduct of the Mediation process. It is necessary to believe in the impossibility of to be impartial, so that the natural partiality, inherent to humanity, can be seen and reviewed at every moment of action. Impartiality is a term used here with the meaning of objective and subjective equidistance in relation to the mediators, avoiding attitudes that denote partiality, with regard to both their participation and the mediator's own performance.

Competence is an ethical principle especially referring to the ability to conduct the Mediation process. For this reason, prior training is a requirement for this practice. Mediators do not need to have special knowledge in the matter that is the object of the dispute - but enough to ask questions -, since they will not act by deliberating or suggesting. The mediators are those who should be instructed to seek special knowledge in the matter. The mediator's special knowledge must concern the conduct of the Mediation dynamics.

Confidentiality is also a fundamental ethical principle, as treated in the text of the Code of Ethics for Mediators: [12]

“the facts, situations and proposals that occurred during the Mediation are confidential and privileged. Those who participate in the process must obligatorily maintain secrecy about all the content referring to it, not being able to be witnesses of the case, respecting the principle of autonomy of will of the parties, in the terms agreed by them, as long as it does not contradict public order.”

Among other ethical requirements of the Brazilian code, there is the impossibility of the mediator acting “as a professional hired by either party, to deal with an issue that has a correlation with the mediated matter” and the duty to indicate the need for a technical opinion to feed with information the decision-making power of intermediaries. The mediator, regardless of the technical knowledge he has on the matter that is the object of the mediation, is ethically prevented from offering guidance of any kind.

The veto to provide technical opinions - contributing to the maintenance of objective and subjective equidistance and the mediator's active impartiality - as well as the ethical need to "ensure that the parties have sufficient information to evaluate and decide" require the mediator to identify the need for mediation parties to seek technical information outside the mediation environment, in order to qualify their decision-making power.

The legal margins of what is being agreed must be taken care of by the mediation's lawyers, by their public defenders or even by dative lawyers. The mediator is exclusively responsible for conducting the process – maintaining its characteristics and purposes – and taking care of the ethical margin.

Lawyers can have extensive experience in Mediation. In addition to providing the legal parameters for the topics under negotiation, they can also advise their clients: 1) in choosing the mediator, privileging knowledge in the matter or in conducting the Mediation process; 2) in identifying their interests and needs, clarifying the demand; 3) in the preparation to participate in the Mediation, informing about the ethical principles, the dynamics of the process and its procedures; 4) in identifying the interests and needs of the other party, helping to create mutually beneficial solutions. Lawyers can also act as mediators, like other professionals.

The incorporation of alternative methods into Western culture is inevitable. Americans, for example, are starting to sue lawyers who do not inform their clients about the multi-port system, offering them exclusively judicial resolution as a possibility. [13] These professionals are expected to provide guidance and knowledge regarding the different forms of conflict resolution. The monodisciplinary view of conflict is little updated, and interdisciplinarity also reaches law schools, helping these professionals to broaden their spectrum of vision and action.

Due to state mediation laws in the US, mediators produced in 1994, and revised in 2005, an ethical guide to conduct for their performance – The model standards of conduct for mediators. [14] The text is the result of the efforts of three entities dedicated to the subject: American Arbitration Association, Association for Conflict Resolution and Section of Dispute Resolution, of the American Bar Association. This need to standardize ethical principles so that the practice takes place properly should serve as an inspiration for us Brazilians, who have just started it and who also have continental dimensions and cultural diversities to manage.

 

The training of mediators

Specific theoretical-practical training is common throughout the world, due to its transdisciplinary nature. [15] of Mediation. Contributions from different areas of knowledge need to be articulated and apprehended in order to support the mediator's performance and the use of countless interventions aimed at deconstructing impasses and at the fluidity of dialogue.

Americans are in the midst these days, [16] on the subject of training. Over the last forty years, they have been offering numerous courses, with different syllabus and different workloads, giving many of them the character of training (strict sense). They have, therefore, questioned the legitimacy of attributing the quality of mediators to all those coming from these courses and holders of such different skills.

In Brazil, some preventive actions regarding the subject of training have mobilized institutions and professors dedicated to the subject. In 1998, at the 60st International Congress on Mediation and Arbitration, held in Curitiba, Brazilian professors who were members of CONIMA and foreign professors invited to the event got together to build a minimum training curriculum with the respective workload. At the time, we thought of an interdisciplinary program content to be presented in at least 50 hours of theoretical classes and XNUMX hours of supervised real practice. These two stages systematically integrate the training courses into the world experience.

As the insufficiency of the proposed workload was known to all, it was then decided to include the expression 'minimum', in order to guarantee that it would not be the fulfillment of a total of hours that would confer readiness, but the institutional analysis of the competence achieved by the mediators in training. A minimum workload and program content were chosen to enable the occurrence of courses and the practice of Mediation in a country like Brazil, with such large continental dimensions.

 Today, the teaching experience confirms this insufficiency and scholars in the area organize themselves to review what was previously built. The National Mediation Forum (FONAME), which counts on the judge Kazuo Watanabe in its Advisory Committee, brings together teaching professionals who are currently working on formatting a curriculum for training in Mediation. Still in the design process, this curriculum provides a total workload of 160 hours and consensus is sought on what to privilege in the distribution of the workload: theory or practice.

In larger groups, as in FONAME, or in smaller groups, as in specialized entities and universities, we are preventively moving towards a unicity without uniformity, as demanded by the wisdom of respect for differences, with regard to a basic curriculum for training in Conflict Mediation.

The workload and program content are no longer a primary issue and become a consequence, if the guides of academic programs can focus on the competences they want to achieve.

We share the thinking of some professors, in the sense that it is possible to design programs with progressive complexity and to contemplate audiences with different levels of curiosity about the subject. With a sequence that starts with theory and has in continuing education a proposal for permanent improvement, it can be offered from an informative stage to a training in Mediation. Knowledge of the institute's principles, the development and improvement of technical skills related to the dynamics of the instrument, as well as practical excellence are important guides of gradual complexity for those who design Mediation courses.

Teaching Mediation transcends bringing together its theoretical and technical contributions in a teaching program. Mediation is much more than a method of conflict resolution. Its learning implies paradigmatic changes concerning coexistence based on empathy, as a fundamental ethical principle. [17] It is an apprenticeship for life, for being in the world, not exclusively for performing a function. It appears that the existing training programs have more objective or more subjective aspects and build practitioners qualified to stimulate greater or lesser social changes.

 

Dealing with Conflicts in Mediation

Inherent to human nature and, therefore, part of everyday life, conflicts arise when subjects negotiate differences between themselves.

The vision of conflicts as an opportunity for change is now universal. The challenge for change removed the negative connotation from them. What today gains negative connotations in this field is the destructive management of conflicts. [18]

Some theorists are based on Game Theory [19] to discuss the competitive management and the collaborative management of interests in situations of disagreement. According to this theory, interactive games always depend on the intertwining of strategies used by all players, highlighting the interdependence of decisions and expectations of each player in relation to the behavior of others. The articulation of multiple strategies is, therefore, a determinant of the best or worst results for all, of more or less balanced results. This evidence is what gives richness to the exploration of the theme under this aspect and gives rise to the expression 'win-win' accepted by resolution methods based on mutual satisfaction and benefit, as is the case of Mediation. Governed by this perspective, the mediator would act as an element of communication between the players and their strategies, preserving their secrecy and simultaneously inviting all the participants of the Mediation to reflect on the mutual benefit to be achieved, and its sustainability, with 'win-win' solutions.

Of the numerous theories that deal with conflicts, one offers a special contribution to Mediation: Rubén Calcaterra claims that the methods of self-composition based on the genuine authorship of the parties need to be concerned, first, with the deconstruction [20] of the conflict between them. Calcaterra states that there is a step-by-step approach towards self-composition that progressively includes: 1) the deconstruction of the conflict, 2) the restoration of the social relationship and 3) the co-authorship of solutions. In his view, only after managing the existing conflict between them - subjective agenda - and having their social relationship minimally re-established - restoration of the social relationship -, [21] people can work collaboratively, building mutually beneficial solutions, in co-authorship – objective agenda.

 

The different areas of applicability of the institute

Due to the purposes of self-composition, seeking solutions of mutual benefit (win-win) and also to restore the social relationship, enabling the respectful maintenance of coexistence, the areas of special applicability of Mediation are those that involve relationships continued over time – family, community, commercial and contractual, labor relations, partnership and coexistence relations and international relations.

Family Mediation and Community Mediation are the areas that have gained more prominence and dissemination on the world stage, as a result of the positive results obtained in both fields, generating numerous literary works.

The institute's use in the corporate and environmental sectors is increasing, as they involve multiple actors and different interests and demand inclusive dialogue processes – those that include all those involved – dedicated to mutually beneficial solutions.

Also with relevant growth in world practice, it is worth mentioning the inclusion of Mediation in the list of Restorative Practices – an umbrella that houses different means of conflict resolution. These practices initially worked with conflicts resulting from aggressive actions involving victim and offender and, more recently, they have expanded their approaches and principles to the violent aspects of day-to-day coexistence.

Due to its pacifying character and manager of solutions aimed at a harmonious coexistence in the future, Mediation entered schools [22] and spawned countless programs that teach children and adolescents the art of dialogue as a primary option for respecting and negotiating differences. [23]

Legislated or not, mandatory or not, the world has been experimenting with this practice in different areas of coexistence and crowns its effectiveness and efficiency with two Nobel Peace Prizes awarded to former presidents, mediators of international conflicts: Jimmy Carter, in 2002, and Martii Ahtisaari, in 2008.

Carter, former US president (1977-1981), was the mediator of the first peace agreement between an Arab country (Egypt) and Israel – the Camp David agreement of 1978 – which led to the Nobel Peace Prize, also for Menagem Begin (Israel's Prime Minister) and Anwar Sadat (Egypt's President). The acknowledgment of Carter's actions towards world peace – stretching the relationship with communist countries and establishing diplomatic relations with China – and the actions promoting human rights and democracy transcends all borders.

Ahtisaari, former president of Finland (1994-2000), wins the Nobel Peace Prize for his important performances in Indonesia, Namibia and Kosovo, as well as for his dedication, for more than three decades, to the resolution of other international conflicts.

The use of Mediation in public policies is increasing - participatory and inclusive management in the treatment of collective issues - as well as in political-social conflicts, as was the case of the conflict of Ireland, Kosovo and South Africa, which benefited from the institute of Mediation in the internal pacification process.



The moment of Mediation in Brazil and the care related to its future

The opportunity to address the topic “Prospective View of Mediation in Brazil”, which took place recently at the I Interdisciplinary Seminar on Conflict Mediation of the Law Department of the Pontifical Catholic University of Rio de Janeiro (PUC-RJ), [24]inspired us to carry out an informal survey, with mediators who work in different states of the Federation.

The dynamics of the research asked mediators and also some judges to report on the topics that constituted the focus of Mediation practice in their state, as well as on the care considered important in relation to the future of Mediation in Brazil.

Pleasant surprise! We just did not obtain information about the practice of Mediation in Roraima, Maranhão, Sergipe, Paraíba and Rio Grande do Norte. In the other units of the Federation, the practice of Mediation was present. About the scope of action, a new and gratifying surprise. Mediation is practiced in the following areas: family and succession, school, community, business, commercial, civil, criminal (Special Criminal Courts - JECrim - and juvenile offenders), accounting, labor, health, the environment, the third sector, of engineering. It was also found the practice in the second instance of jurisdiction and many voluntary work in Courts of Justice of several states.

Despite the positive results, the research participants fear that specific criteria for a qualified training of mediators are not applied in Brazil and that, therefore, there will be repercussions on the quality of their future exercise and, consequently, on the credibility of the institute. The informants also fear a hegemonic treatment of this knowledge, reducing their field of practice and granting power through a knowledge restricted to a few.

The conceptual distortion between Mediation and Conciliation was included in the list of fears, since there is already little or no discrimination with the Institute of Conciliation in some Courts of Justice in the country, which take them as synonyms. Such confusion eliminates the offer of the two instruments separately and, consequently, all the benefits of Mediation, previously identified.

The research participants recommended careful attention to training, continuing education and specialization to work in different areas. They also suggested that work should be done on the dissemination of the institute in order to bring about paradigmatic changes in conflict management and to expand its use. They also highlighted, as points of care, strict respect for technique and ethical precepts, as well as the legitimacy of Judicial Mediation and Extrajudicial Mediation.

Compiling the data related to the vision of the future on the subject, it is observed that there was an emphasis on the inclusion of Mediation in university curricula of different degrees and for the expansion of its practice in the areas of the family, community coexistence, schools and companies . The research participants took for granted the expansion of the use of the institute by the Brazilian Judiciary and by the States, as a public policy instrument for different themes, including social governance and violence prevention.

In Brazil, there are numerous specialized entities that offer the social and private practice of Mediation, and a few that are also dedicated to training. The Institute of Mediation is already an elective and curricular subject in some law schools, as well as in postgraduate courses; integrates Legal Practice centers, some even stimulated by an incentive program of the Ministry of Justice, [25]started in 2008.

As in other Latin American countries, Brazil has been formatting programs subsidized by international organizations, such as the Inter-American Development Bank (IDB) and the United Nations Development Program (UNDP). The National Public Security with Citizenship Program (Pronasci), the National Public Security Secretariat (Senasp) and the Ministry of Justice have also encouraged the practice of Mediation.

 

Conflict Mediation and its regulation

Another topic that Brazilians dealing with ADRs have been dealing with since 1998 – when the first text of a bill dedicated to the subject was made public – is the Mediation legislation. The text has a simple wording and broad spectrum, embodied in seven articles written by a multidisciplinary team, [26]led, at the time, by the state representative of São Paulo, Zulaiê Cobra.

The document, after passing through the Chamber of Deputies, won a substitute signed by the then senator Pedro Simon in the Federal Senate and was approved by the Chamber on June 11, 2006. Back in the Senate, it awaits further consideration.

In parallel, Brazilian society moved around the theme and produced, in the first years of this millennium, a version of a bill, signed by the Brazilian Institute of Procedural Law, [27] whose content integrates, in part, the substitutive version offered by Senator Pedro Simon to the Federal Senate.

Even some of those who were previously in favor of the law are now reticent about its approval. According to them, perhaps the law will make more sense when a greater number of Brazilians get to know the institute and master its practice, in order to provide sustainability to future demand.

Others interested in the matter think that the practice of Mediation could do without the law, which is a fact. For many others, on the other hand, there is the belief that our culture would greatly benefit from a Mediation law, due to the legitimacy that a text of law confers and the dissemination it promotes. There are also those who believe that, like the Province of Quebec, Canada, the practice of Mediation could be included in the Code of Civil Procedure.

In relation to the previous ones, the current text of the bill, [28] which has already been greatly improved, establishes a clearer distinction between Mediation and Conciliation, includes ethical principles, no longer restricts the profession of origin of mediators and requires specific training for their practice. It will certainly benefit, in the future, from a review that makes it more concise and deals with more clearly some of the proposals contained therein. As examples, the well-accepted proposal of optional Prior Mediation and the controversial proposal of mandatory Incidental Mediation that coexist in the text of the bill and motivate discussions around the subject.

The obligation to adhere to Mediation is a controversial proposition due to the concern of injuring the autonomy of the will. In fact, when it is included in the legislative text, it establishes the obligation to go, but not to do it, since no one, governed by free will, is obliged to negotiate.

Some theorists consider it interesting that only pre-mediation is mandatory, with the intention of provoking knowledge and consequent dissemination. In some publications, this result (knowledge and dissemination) was pointed out as a consequence of the obligation of Mediation, when it is determined in the legislative texts – for example the federal capital of Buenos Aires and some American states. As it is an exclusively informative phase, the obligation of pre-mediation would undeniably and without causing so much discomfort, the contact with information about general notions of the institute throughout the national territory.

Sealing the acceptance of Mediation in our culture is the Brazilian Constitution, which, in its preamble, portrays a society founded on “social harmony and committed, in the domestic and international order, to the peaceful solution of controversies”.

Mediation implements numerous constitutional principles – access to justice, freedom, substantial equality, psychophysical integrity, solidarity, human dignity, citizenship and social pacification, among others – and is already part of the current infra-constitutional legislation. [29]

 

The Brazilian Multiport System

In Brazil, informal action has been taken with a multi-door conflict resolution system. Negotiation, Conciliation, Mediation, Arbitration and Judicial Resolution are part of the multi-port panel. Our bill suggests yet another door – the Neutral Third Party Assessment.

As in our culture Mediation and Conciliation are offered side by side, it is extremely important to make a special distinction between both institutes, so that the benefits and results they offer can be enjoyed. Usually, the practice of Conciliation in Brazil is intuitive and not preceded by specific training. There are no theoretical and technical proposals supporting its exercise, which is primarily aimed at building agreements. The conciliators, law students, psychologists and social workers, for the most part, work voluntarily in the Courts and Justice and use their personal peacemaker profile to lead people to a friendly composition. The restoration of the social relationship is not the object of the Conciliation.

Mediation is a term used by people in general, which reaffirms the proposal of adequate differentiation. Certainly, anyone has noticed themselves mediating various situations in their daily lives, whether in the exercise of their functions – as parents, lawyers, therapists, religious or social leaders – or as ordinary citizens. Anthropology, for example, considers Luiz Gonzaga as a mediator of Brazilian northeastern culture (VELHO; KUSCHNIR, 2001) and media literature (MARTINS-BARBERO, 2001) considers American films from the 50s to be socio-cultural mediators, for having disseminated to the world American habits and resources of the time, such as the vacuum cleaner, the electric toaster, the double-decker refrigerator, etc.

Confusing Mediation with Conciliation will deprive us of the possibility of making good use of the different social scopes and the different uses of the two resources.

As it includes the restoration of social relationships, we share the idea that Mediation has special applicability to relationships that will continue over time. We consider, on the other hand, that the Conciliation may deal with all other issues that allow transactions and that involve people who will not continue to maintain a social relationship - some consumption and service relationships, traffic accidents, among others.

A research carried out in Brazil, in 2007/2008, by the University of Saint Thomas (Minneapolis), coordinated by the Venezuelan Mariana Hernandez Crespo, professor of Law at that university, compiled the thoughts of a group of Brazilians about the formal existence of a multi-port system of conflict resolution for Brazil. [30]

Mariana Crespo brought together about thirty-five Brazilians in seven groups of, on average, five participants – magistrates, lawyers, university professors, businessmen, law students, representatives of non-governmental organizations (NGOs) and low-income communities ( favelas) – and asked three questions: 1) how Brazilians perceived their conflict resolution system; 2) the implementation of a multi-door conflict resolution system in the Brazilian scenario was considered likely; and 3) if the multi-port system were to be implemented, what elements would they consider important for this process.

The research participants, members of four states of the federation (Rio de Janeiro, São Paulo, Ceará and Minas Gerais), indicated their dissatisfaction with the judicial system - slowness, bureaucracy, need for technical improvement of legal operators - and identified the Resolution Judicial as the most used method of dispute management in our culture. However, they recognized numerous changes in the judicial system, such as the Special Courts and Itinerant Justice, and expressed a desire to consolidate the reform of the Judiciary, which began in 1994.

Regarding Alternative Dispute Resolution Methods, they were sympathetic. Mediation was highlighted by the participants as an inclusive method that reinforces the exercise of citizenship, acts with transparency and can be elected by the people themselves to manage their controversies.

The possibility of people being informed by a technician from the Judiciary about the different conflict resolution doors – a preliminary stage to the choice – was welcomed, as well as the possibility of choosing the method after having been informed about the range of options. There was an explicit expression in favor of the practice of these methods inside and outside the Judiciary, by third parties who are members of the effective body of the Courts of Justice and by third parties working in specialized entities or in communities.

For the implementation of the Multiport System in Brazil, the need for wide dissemination of the different means of conflict resolution was identified - our lack of knowledge about it is clear -, with the inclusion of Mediation in the curricula of different undergraduate courses. The greatest fear expressed by the interviewees regarding the implementation of this system is related to the unskilled practice, which would jeopardize the Institute of Mediation – results and credibility.

Results evaluation indices

What criteria should we use to assess the effectiveness and efficiency of Mediation? Quantitative or qualitative criteria?

In the field of conflict resolution, the tendency is to stick to immediate results that numerically translate the compositions obtained, the satisfaction related to the consensus, the reduction of financial costs and the rate of compliance with the agreements. American statistics show rates between 80 and 90% of compositions obtained by Mediation.

Some numerical data from the Argentine experience can excite us (ABREVAYA, 2008). These data are based on two elements: the period of practice of Mediation between 1997 and 2006, during the validity of the Mediation Law of the federal capital, which is pre-judicial and mandatory, and the fact that 90% of these mediations have been made in the private sphere.

Abrevaya's research finds that, even with the economic growth that occurred during the data collection period, a natural generator of the increase in the number of cases in the Judiciary, there was, in fact, a decrease of 34% in this number. Also according to the study, there was a 50% reduction in the lack of compliance with the agreements obtained in Mediation in the period. Both data confirm world expectations: the first data, the reduction in the contribution of new cases to the Judiciary when Mediation is part of the conflict resolution options; the second, the expectation that the genuine authorship of the parties in the Mediation contributes enormously to the fulfillment of the agreements.

The social and economic repercussions resulting from the celerity, the satisfaction of the parties and the spontaneous execution of the agreement are also evident. However, only in the medium and long term will we know, if we investigate, about the repercussions of Mediation on the maintenance and quality of the social relationship of people who had disagreements dealt with by the institute and on the prevention of new disagreements.

Although numerical statistics provide important indicators, they are insufficient to assess the reach of the Mediation's social and political results. It is no longer possible to do without qualitative analyzes when evaluating processes that act on human relationships. For our Argentine neighbors, for example, Mediation “changed the litigation culture of lawyers, humanized the concept of justice and placed the future as a guide for conflict resolution” (ABREVAYA, 2008, p. 91). These are social and political data of recognized relevance to the field of conflict resolution, which are recorded by our perception rather than by our qualitative research.

We know that the culture of pacification resulting from Mediation also has an impact on conflicts that are not judicialized – the case of some community issues and others in the school environment –, but which benefit today from the practice of Measurement as a clearly preventive action.

 

Final considerations

Mediation refers to the ethics of virtues, proposed by Aristotle, when asking people, guided by good faith and consideration for the other, to build, at each moment of coexistence - not only in situations of impasse -, solutions based on respect each other and for mutual benefit. It is an invitation based on respect for the other based on the internal and personal evaluation of each subject and not based on external laws established by society.

The modern world and its Cartesian logic offered us a wealth of knowledge and action proposals based on the binomials cause effect e problem eresolution; these knowledge and actions were not necessarily and determinedly concerned with sustainability with regard to what was proposed to combat the causes or solve the problems.

Systems thinking, quantum physics, the ecological vision of human existence – actors of postmodern thinking – have called man's attention to interdependence and to the fact that fighting the causes of problems and solving them should be thought of in terms of long-term outcome – with the distant future as the horizon. Thus, the necessary enchantment for sustainability arises for man.

This is the temporal scenario that generates Mediation as a means of preventing and resolving disputes. This is the institute that is willing to solve problems in a way that the causes and effects of the past are not repeated or are managed in a way that does not compromise the sustainability of peaceful coexistence.

Born in post-modernity, Mediation lives up to its time and presents itself as transdisciplinary and comprehensive in the field of dispute resolution. It proposes that self-composition be accompanied by the restoration of the social relationship, allows the expansion of the negotiation agenda, from the hearing of the parties, to also include new issues or those of a subjective nature and takes care of issues that do not have legal protection.

It is transformative and restorative in itself, regardless of the theoretical school that guides the work or the methodology used. It has a dynamism proper to the new times.

The entry of Mediation in the lives of subjects undergoing training – schools and universities – will certainly change the scenario of conflict resolution in the future and will contribute to the formation of people who are more inclined to dialogue and coexistence with the perplexities and pluralities inherent to human nature.

*Text written in 2008

References

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[1] The ADRs were thus characterized by Gladys Alvarez and Elena Highton, two of the writers of the Mediation Law in the federal capital of Argentina.

[2] Dispute Review Boards – “a panel composed of three members, selected by the contractor and the contractor, before a dispute occurs, able to observe the installation of problems and offer immediate solutions on the job site. This real-time dispute resolution process allows these experts – who visit the field of work regularly, following the progress of the project – to recommend quick settlements before adversarial attitudes can take hold and strengthen.” Definition available at:www.mediare.com.br>, in the Multiport System section.

[3] William Isaacs is one of the founders of Dialogue Project from MIT, a consultant for Ford, Motorola and Shell for the topic. His ideas can be found in Isaacs, 1999.

[4] Constantino and Merchant (1996) work on this topic offering ideas to implement such systems in corporations.

[5] William Ury and Roger Fisher perpetuate these principles in the second chapter – “Method” – of the book Getting to Yes. This work, which was first published in 1981, has become a classic in the world of negotiations.

[6] Criticism of this first principle – separating the issue from the relationship – inspired Roger Fisher and Daniel Shapiro to write Beyond Reason:using emotions as you negotiate – a work dedicated to taking care, especially, of the relationships between people in disagreement, translating the feelings brought to the negotiation table into concerns.

[7] The classic book on the subject was written by a pioneer in this thought that revolutionized science in general, See Bertalanffy, 1977. More recent authors have brilliantly discussed the subject, among them: Capra, (1982) and Vasconcellos, (2002). ).

 [8] José O. Fiorelli, professor of psychology, Marcos Júlio O. Malhadas Junior, lawyer, and Daniel L. Moraes, civil engineer specializing in work psychology, in 2004, published an important work dedicated to the effects of emotion on behaviors of people involved in conflicts of any kind.,

[9] The Socratic dialectic occurs in sequential phases, allowing the subject to initially think that he has mastered a knowledge; soon he realizes, immersed in the dialogue, that he knows little or nothing; and discover, at the end of the dialogue, after a reflective process, that you have an internal knowledge.

[10] Marinés Suares, an Argentine mediator and admirer of the work of Sara Cobb, described this model in a publication dedicated to communication and techniques in Mediation (SUARES, 1996).

[11] The Third Party Neutral Valuation method (Fact Finding) consists of an impartial third party elected by the parties to investigate a dispute, examining issues and facts to provide a non-binding opinion or to recommend a settlement. It can also be linked to other methods – negotiation, mediation or judicial resolution – indicating the trend of results or expanding the spectrum of possible alternatives.

[12] Brazil has a Code of Ethics and a Model Regulation, which guide the practice of Mediation, created in 1996 by the founding institutions of the National Council of Mediation and Arbitration Institutions (CONIMA). Available in: www.conima.org.br>.

[13] This information was obtained by the author at the Annual Conference of the American Bar Association – Section of Dispute Resolution held in April 2008, in Seattle, USA.

[14] Available in:www.abanet.org/dispute/news/ModelStandardsofConductforMedatorsfinal05.pdf>.

[15] We understand Mediation as a 'transdiscipline'. The institute transcends the interdisciplinary character that sews different areas of knowledge together. Mediation crosses different types of knowledge and is constituted from this intertwining also as a discipline – here understood as a branch of knowledge.

[16] Information obtained by the author at the Annual Conference of the Association for Conflict Resolution held in September 2008, in Austin, USA.

[17] Luis Alberto Warat is a theorist on the subject who draws attention to the humanitarian aspects of Mediation and the role of the mediator. See Warat, 2001.

[18] Morton (1973) makes distinctions between cooperative and destructive processes of composition.

[19] The theme is explored in: Highton and Álvarez, 1996, p. 83-90, and in Calcaterra, 2002, p.79-84.

[20] The expression deconstruction is inspired by the concept of the French philosopher Jacques Derrida. The term was originally used in literary analysis and means to deconstruct a written text in the sense of dismantling it (brick by brick) in order to understand the process of its construction. See Johnson, 2001.

[21] We understand how to restore social relationships the rescue of respectful communication between people who will maintain coexistence over time. The word 'restoration' is very happy, since it makes clear the impossibility of returning to the original, accompanied, however, by the commitment to achieve it.

[22] The world is already familiar with Restorative Education, which proposes to schools and educators, in general, the review of their punitive practices and the inclusion of restorative practices - those that privilege the assumption of responsibility for their own acts, the recognition of the damage and the Repair.

[23] In Brazil, Espírito Santo, through the State Department of Education, organizes itself to include Mediation in all state schools, as part of a public policy project.

[24] The Seminar, which took place on October 29, 30 and 31, 2008, was dedicated to those who had prior knowledge of the subject and brought together speakers of recognized expertise in the subject.

[25] The Ministry of Justice launched the project “Pacificar – Educate for citizenship and the promotion of peace”, to promote the peaceful mediation of conflicts in the legal practice centers of the faculties of Law. The faculties competed for financial incentives from the federal government by submitting proposals that were judged by a special committee.

[26] The team included lawyers, jurists, psychologists and psychoanalysts.

[27] In 2003, the version of the Mediation Bill of the Brazilian Institute of Procedural Law and the text previously produced by the team coordinated by Zulaiê Cobra merged into a new version called consensual.

[28] Available in:http://www.camara.gov.br/sileg/Prop_Detalhe.asp?id=330610>.

[29] The National Statute of Microenterprises and Small Businesses – art. 75 of LC n.123/2006 – encourages the use of Mediation: “Micro and small businesses should be encouraged to use the institutes of conciliation, mediation and arbitration to resolve their conflicts”.

[30] The research is being published by the Law School of Cardozo University, in New York, and by the Center for Justice and Society (Cejus), of the Rio de Janeiro Law School of Fundação Getulio Vargas.