Mediation at the turn of the millennium

Tania Almeida
COMMERCIAL GAZETTE 
May 31, 1999 
Editorial: Opinion — page 02

In the face of paradigmatic transformations, this turn of the millennium allows us to witness the permanent outdating of ideas, proposals and products, which are born with a short-average life, a natural consequence of the speed of change, characteristic of today. In an anticipated balance of the last decade of this millennium in relation to the guides that have been guiding our social universe, there is a period in which the changes have impelled the man to create other parameters and for them to be guided.

Certainty, cause and effect, centralization, correct model, unique solution, correct explanation governed the concepts advocated by modernity. A fertile time in the production of standard models in the most different fields - in education, finance, business or government administration - allowed for a linear pursuit of each of those conceptions. Negotiating or litigating for the uniformity of his ideas and actions, the man remained immersed for a long time in standardized models of resolving dissensions, believing in a single and correct solution.

The resultant of these dissensions, conflict, then arose when uniformity or agreement was not achieved. The means to solve it, were guided by the same paradigms, using force, order, judgment, the dichotomous arbitration sentencing of what was right and what was wrong. The global world, at this moment, is understood systemically, emphasizing that we are all active or passive co-authors of what results from it. The conflict originates today, no longer from the impossibility of consensus, but from the difficulty with the coexistence of dissimilarity.

This systemic understanding, also based on the legitimacy given to differences, admits the existence of as many stories as there are historians and as many solutions as there are authors. It is a time that imposes the coexistence of different cultures, ideas, as well as proposals, making negotiation an essential skill for peaceful coexistence, showing that collaboration expressed in common markets, in business junctions and in transnational governance, constitutes the greatest source of survival.

Throughout history, man has produced syntonic ideas with his time and, recursively, built epochs that are coherent with thinking. Following this trajectory, the alternative resources for negotiating differences and controversies gain, at this moment, number, place and diversity. Conciliation, Mediation and Arbitration are increasingly gaining space in our culture, helping Brazil to gain contemporaneity in this field as well.


Present in the process of democratization in South Africa, in the conflicts in Ireland and the Balkans; in famous divorces, in environmental and community issues, in common markets, in business unions, often integrating the functioning of some organizations, Mediation has been the instrument of self-composition eligible for the most different sectors of human coexistence, worth emphasizing those in the political spheres. , commercial, labor, business and family. By privileging the genuineness of the authorship in the negotiation, since it allows solutions to the issue at hand to emerge from the parties involved, Mediation has gained prominence.

Agile and informal, Mediation allows for a drastic reduction in financial costs and the emotional exhaustion caused by the disagreement, shortening the duration of the disagreement and litigation, denoting a conclusion in the cost-benefit relationship, more productive than the use of other resources. Governed by the autonomy of the parties' will, it seeks, through the action of the Mediator, to take care of the mutual satisfaction of the interests of all those involved in the process, having its beginning and end deliberated by them in common agreement.

Ethically prevented from interfering in the solutions created by the parties and from disclosing the existence and content of the process, the Mediator, a specialized and qualified professional to act as a facilitator of dialogue for understanding, acts as an impartial third party helping to identify common interests, impasses that make the agreement unfeasible; the need for the opinion of other professionals can be identified by him and the construction of a negotiation agenda that includes the expansion of alternatives for resolving the dispute, elaborated.

Recent resource in Brazil Mediation can be used before, during or after the course of a judicial resolution, providing agreements that, in the statistics of some countries, reach results around 80% of the total index of Mediations carried out. This percentage is even higher when the effectiveness and feasibility of these agreements is a topic, since they are produced from the ideas, suggestions and deliberations of the parties themselves, whose authorship creates commitment and responsibility with them.

Three decades ago, reformatted in the United States of North America, as a structured process, with the intention of solving outside the scope of the judiciary those matters that could do without it, with the intention of drying the volume that came to it, Mediation transcended this objective due to its non-adversarial character in the resolution of disputes. Based on collaboration and the composition of interests, the use of this instrument, since then, has been shown to include a wide range of secondary benefits, ranging from the reduction in the incidence of litigation to the promotion of improvement in communication and in the relationship between the parties.

This preventive effect, elected Mediation as an alternative resource of choice, in conflict resolution and negotiations that involve ongoing relationships over time. Extending the preventive possibility, many countries have included it as a dispute settlement clause in commercial, financial, insurance and business contracts; this fact constitutes today, for those cultures, an indicator of the possibility of satisfactory solutions, giving total credibility to the instrument and the contracts that include it. 


By privileging the self-composition of interests, the mechanisms for alternative conflict resolution meet the social need for the exercise of citizenship. Providing greater citizen participation in resolving their own disagreements, they implement a culture based on dialogue and cooperation, promoting a paradigm shift in handling disputes. As an extension of access to justice, cooperative and peaceful solutions restore to man the possibility of direct negotiation and consequent authorship.

In the search for a level of results and credibility similar to that of some countries, Institutions dedicated to Mediation and Arbitration, come together in a National Council; aiming at the development of an autonomous, non-adversarial and author mentality in the dispute resolution processes, Public Institutions offer Mediation as an alternative to their users; aiming for celerity, effectiveness and privacy in the resolution of their impasses, Markets, companies and organizations make use of Mediation. From a negotiation resource to a social instrument that enables a quality of negotiation that allows everyone involved to be given a voice and time, Mediation, for all its characteristics, is coherent with the paradigms of this turn of the millennium and is essential as a resource for governance. , administration and negotiation, in the most different spheres of social coexistence.