Mediation and Conciliation: Two different paradigms, two different practices

Mediation and Conciliation: Two different paradigms, two different practices*

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

 

SUMMARY: 
1. Initial Considerations. 
2. The construction of agreements proposed by conciliation and the privilege of deconstructing conflicts intended by mediation. 
3. The pursuit of individual satisfaction sought in conciliation and the pursuit of mutual satisfaction demanded by mediation. 
4. The repercussion of the solutions on themselves, taken care of by the conciliation and the repercussion of the solutions on third parties, investigated by the mediation. 
5. The co-authorship of solutions constructed by the parties and the conciliator and the privileged authorship of the parties pursued by the mediator. 
6. The monodisciplinary service used by conciliation and the multidisciplinary approach proposed by mediation. 
7. Present and guilt focused on conciliation; the future and social responsibility objectified by mediation. 
8. The objective agenda highlighted by conciliation and the subjective agenda privileged by mediation. 
9. The publicity that characterizes the conciliation and the confidentiality proposed by the mediation. 
10. Technical opinions in conciliation and mediation.
11. The lawyers of the parties to conciliation and mediation. 
12. Final considerations. 
13. Bibliographic references.

 

1. Initial considerations

 

The arrival of mediation in Brazilian culture has been taking place gradually. One of the challenges of this path is to establish an adequate distinction in relation to conciliation, a conflict resolution instrument practiced for a longer time. As they contemplate both the construction of agreements, mediation and conciliation are sometimes taken as synonyms.

As world culture moves towards the expansion of methods of access to justice, it is interesting that we can then know this differentiation clearly. Aims at the multi-port system [1] of access to justice - availability of different methods of conflict resolution - to be able to expand the number of doors we have and, above all, to adapt the routing of our questions to the one that is most appropriate.

This is one of the benefits of the multi-door access to justice and conflict resolution systems: making it possible to refer the existing issue to the resolution instrument that offers greater effectiveness and, consequently, greater efficiency. If we have two suits in the closet, we need to choose one or the other for occasions that require the use of formal attire. If we expand the number of suits, we can adapt the model to the event, temperature and time of the occasion, as well as the greater or lesser formality required.

Despite the conciliatory purpose in common, mediation and conciliation keep distinctions so clear in their purposes and in their social reach that it is worth, at this moment when both are in the same scenario, to highlight them.

 

2. A construction of agreements proposed by conciliation and the privilege of deconstruction of conflicts intended by mediation

           

Both mediation and conciliation aim to help people build consensus on a particular disagreement. Conciliation has in the agreements its main objective and, at times, the only one. Mediation does not have its highest vocation in the construction of agreements and, by no means, its only objective.

Mediation privileges the deconstruction of conflict [2] and the consequent restoration of peaceful coexistence between people.

We know that the construction of agreements does not guarantee that the conflict between the parties is effectively resolved and, sometimes, it even exacerbates it. However, the basis of social pacification lies in the restoration of the social relationship and in the deconstruction of the conflict between litigants. The permanence of the conflict allows the construction of new disagreements or new disputes; it unravels the social fabric between people involved in a disagreement and between the social networks that support and of which they are a part. The permanence of the conflict is, therefore, fertile ground to keep latent the possibility of new disagreements and the spirit of disagreement between the social groups to which the litigants belong.

By dedicating itself to the restoration of the social relationship and the deconstruction of the conflict - which gives it a preventive character of wide social scope -, mediation has been considered the ideal or most appropriate method of election for disagreements between people whose relationship will last in time. – whether by kinship, work, neighborhood or partnership ties.

 

3. The search for individual satisfaction intended in conciliation and the search for mutual satisfaction demanded by mediation

 

Mediation proposes a paradigm shift in the context of conflict resolution: sitting at the negotiating table to work hard to meet everyone's demands those involved in the disagreement. In conciliation, the parties sit at the table in search, exclusively, of meeting their needs. personal demands.

Conciliation is still in tune with the adversarial paradigm that governs every dispute, receiving parties aimed at finding a solution that best serves them, without caring or, at least, considering the level of satisfaction that the other side will have. Sometimes, even, the subjects of the conciliation tables understand as gain the dissatisfaction that the result may cause in the other party.

The people involved in the mediation tables are invited, even before the beginning of the process (pre-mediation), to work in search of mutual satisfaction and benefit. As it is a recent instrument, and based on the autonomy of the will, mediation is preceded by a stage universally called pre-mediation – which will clarify the procedures and ethical principles, as well as the paradigmatic changes proposed by the instrument.

In pre-mediation, a mediator listens to those involved about the reasons that bring them to mediation, in order to identify whether the choice of instrument is relevant and to elect a mediator who is independent from the parties and the topic. At this stage, an invitation is made to work that aims to meet the interests and needs of both parties and achieve a consequent posture of dialogue - not debate -, and collaboration - not competition. Only those parties who are willing to undertake this paradigmatic change initiate mediation [3]

4. The repercussion of the solutions on themselves taken care of by conciliation and the repercussion of the solutions on third parties, investigated by mediation.

 

The search for self-satisfaction intended by conciliation favors a posture that analyzes, objectively and subjectively, costs and benefits of the agreement only in relation to itself. It is primarily on this assessment that the degree of satisfaction obtained with the outcome of the conciliation process is based.

Mediators must help the parties objectively and subjectively evaluate the cost-benefit relationship for themselves and also for directly and indirectly involved third parties, all those not present at the negotiating table - children, employees, affective or commercial partners. , community – who will also have to manage costs and benefits of what is agreed.

Unlike conciliation, carrying out the mediation process in more than one meeting is a usual practice and allows the parties to reflect and talk with their peers and their social network. [4] with them to assess the scope of these repercussions.

Social networks offer us support of different natures. They are sympathetic to our anxieties and dissatisfactions. With them we build ideas and solutions about these anxieties; with them we establish a commitment of fidelity on how things should be conducted; with them we need to negotiate eventual changes that occurred in the course of negotiations, so as not to compromise the relationship of complicity built.

 

5. A co-authorship of solutions built by the parties with the conciliator and the privileged authorship of the parties pursued by the mediator

 

There are behaviors that are expected and desired in the practice of a conciliator and that, for a mediator, have an ethical veto. Based on what is being negotiated, the conciliator is expected to offer suggestions and proposals for agreement, as well as legal frameworks. The agreement constructed through conciliation is, therefore, co-authored by the conciliator and the parties.

Mediation was designed to give back to the parties the leading role in their lives with regard to the solution of their disputes. It distances itself from the paternalistic model, which encourages the idea that a third party, with greater knowledge or power, will be responsible for resolving disagreements between those who are unable to do so on their own, and seeks to restore the authorship of the parties in resolving their disputes.

The purpose of helping subjects to exercise authorship obstinates the practice of mediation in this direction. The parties must be the authors of the choice of mediation as a resource and the permanence in the process (or not), as well as being co-authors of the solutions of their disputes.

This purpose is governed by the principle of autonomy of will and its non-compliance represents an ethical infraction. Mediators are prohibited from suggesting, giving an opinion or proposing any possible solution. They are trained in art of asking with the primary objective of generating information for the parties, since they will be the authors of the solutions.

Like the Socratic dialogue, a mediator needs to help the parties to give birth to their ideas and to realize that the solution that best serves them can – and should – be built from their own knowledge and knowledge about their real needs.

This is a characteristic that legitimizes the term assisted trading, often used to refer to mediation. The mediator acts as adialogue facilitator between people so that direct negotiation between them can be re-established.

 

6. The monodisciplinary service used by conciliation and the multidisciplinary approach proposed by mediation

 

In conciliation, professionals in the field of Law act as an impartial third party, primarily and, more recently, professionals in areas such as Psychology and Social Work. Due to this and the purposes that guide conciliation, the analysis of the conflict and, inevitably, the conduct of these dialogues tend to be monodisciplinary.

Mediation proposes the work in pairs of mediators (co-mediation), aiming to favor the complementarity of knowledge and gender, both with regard to the analysis of the conflict and with regard to the conduction of the dialogue.

As it is a transdisciplinary theme - crossing Law, Psychology, Anthropology, Philosophy and Sociology -, mediation claims that the analytical look at disagreements must be multidisciplinary, even when the work is carried out by a single mediator. – mediation solo. In this way, it invites mediators to act governed by a multifocal lens that makes it possible to recognize and articulate the various factors – social, emotional, legal, financial, among others – that make up disagreements.

The multifactorial nuances of disagreements should also guide the mediators' questions, in order to help the parties articulate them in the proposed solutions.

 

7. The present and guilt focused on conciliation; the future and social responsibility objectified by mediation

 

Conciliation has its occurrence and its conduct motivated by the identification of responsibilities for event(s) that occurred in the past and by the present correction of its consequences. It explores what happened, attributes value judgment to the fact and to the participation of the actors involved, as well as proposes the creation of remedial and corrective solutions.

Mediation does not turn to blame for what happened, but to a prospective view: how to prevent the motivation of the past event from being handled again as it was and then being managed so that relationships remain preserved – how to attack issues without attacking people.

The proposal to look to the future without attributing a value judgment to what happened or to its actors helps the parties to perceive their different contributions in the construction of the disagreement or problem and their possible future actions in the opposite direction. It distances people from Cartesian ideas of correct and incorrect qualityauthor and defendant, promoters of an adversarial and consequently punitive posture, and invites them to cooperative actions, governed by co-responsibility in the careful handling of future events and promoters of social pacification.

 

8. The objective agenda highlighted by conciliation and the subjective agenda privileged by mediation

 

Consistent with the proposal to reach agreements between the parties, conciliation favors the objective agenda – the matter, the substance – that the conflict between them produced. Issues that have legal protection and material proposals are the focus of special attention in conciliation, a context that encourages the parties to also have these issues as the object of their attention, when adhering to the instrument.

Conflicts are produced by people in interaction and include, in all cases, emotion - the need to demonstrate that one is right, to receive an apology from the other, to take care of the self-esteem tainted by the mistreatment that the other's posture provoked, all this from one side to the other. This is the scenario that will produce future disagreements, therefore, new disputes, if it is not included as an object of work and deconstruction. Taking care of the substance and the scenario that motivated the disagreement, the matter and the relationship between the parties, is the inclusive proposal of mediation.

Thus, the deconstruction of the conflict in mediation is highlighted and, consequently, the subjective agenda always instilled in it. Mediators who are aware of this know that the construction of a solution in co-authorship of the parties, guided by collaborative action that makes it possible to create alternatives of mutual satisfaction and benefit, will only be possible if the conflict is previously deconstructed.

The joviality in relation to conciliation allows mediation to have a more up-to-date scope, guided by transdisciplinarity - contemporary guide of social action instruments. Less focused on the apparent urgency of material issues and more attentive to a global analysis of disagreements, mediation can take advantage of all the knowledge that constitutes its basis and build a broader spectrum of action.

 

9. The publicity that characterizes the conciliation and the confidentiality proposed by the mediation

 

The publicity of the judicial process extends to conciliation, its partner-instrument in the settlement of controversies and disagreements. Mediation, on the other hand, was born governed by the principle of confidentiality – whereby the disclosure and use of explanations and information brought to mediation in any other forum are prohibited.

The pillar of confidentiality in mediation provides a framework of trust for the parties, enabling them to accept the invitation to have in good faith a guide for their posture during the process.

The extent of confidentiality in mediation is under the protection of the parties. They are the ones who will decide, at the beginning of the process and at each meeting, joint or private, what should be kept confidential.

The principle of confidentiality not only favors the denudation necessary for negotiations and conversations based on good faith, but also allows individuals and legal entities to be preserved due to secrecy. We know how much the publicity of disagreements and agreements can be, by itself, unfavorable for the continuity of the social or business relationship between parties.

 

10. Technical opinions in conciliation and mediation

 

From the conciliator, it is expected the legal contribution on the matter that is the object of the conciliation and the search for other technical information that feeds him in the conduction of the conciliation process. 

In mediation, there is an ethical impediment to offering technical views, of any nature, on the mediated topic(s). Even if the mediator's profession of origin grants him the technical knowledge related to the matter brought to the mediation, he is ethically prevented from offering it.

This special care with the practice of active impartiality of the mediator does not, however, prevent him from pointing out the need for technical opinions when he identifies that they are fundamental to assist the parties in their decision-making power. In this case, the mediator would be ethically obligated to take care of the balanced level of information from todas the parties, since they will be the authors of the solution. The technical-legal opinion – legal advice and review of what has been agreed – is always recomendado by the mediators and indispensable when the matter includes legal aspects. 

In mediation, the dialogue with technicians of any nature – lawyers, accountants and other specialists – is carried out by the parties and not by the mediator. This procedure follows the same principle that feeds authorship: equipping the parties with the necessary information towards a good decision-making quality.

 

11. The lawyers of the parties in conciliation and mediation

 

In conciliation, lawyers maintain the same antagonistic posture that guides their conduct in judicial proceedings, to which conciliation is linked. They act as advocates for their clients' interests and as their spokespersons. Keeping consistency with the conciliation scenario, as described above, lawyers seek to obtain the satisfaction of an immediate interest of their client, regardless of the burden this causes on the other party or the possibility of the other party meeting the demand.

Mediation proposes a paradigm shift, both in the posture of the parties and the lawyers [5] . As the parties are intended to be the authors of the solution, the voice in mediation is transferred to them. Whoever has decision-making power sits at the table, representing their own voice. Mediation requests that third-party representation be an exception. When the voice is transferred to the parties, it is also necessary to transfer the knowledge about the mediated matter to them. The knowledge about the subjective agenda, previously mentioned, only the parties have. Special technical knowledge about the objective agenda will be sought from those who have it – lawyers or other technicians.

To maintain consistency with this proposal, lawyers move fromdefenders a legal advisors of its clients, offering the legal parameters for what is being negotiated. They also act as technical advisorsin helping to choose the mediator in the private sphere; It is like consultants, in the identification of the interests and needs of the other party, aiming to propose solutions of mutual benefit and satisfaction.

This and other paradigmatic changes that characterize mediation are brought to the attention of the parties, and their lawyers, in pre-mediation – a stage in which the assumptions of participation in the process are offered. Understanding the principles and ethics that govern mediation makes it possible for parties and lawyers to identify their availability to act according to their parameters.

 

12. Final considerations

 

Through competition, we remain so assertive in pursuit of personal satisfaction that we disregard the other's needs, points of view, and interests. By concession, we do the opposite: we serve the interests and needs of the other more than our own, giving in and conceding. Through collaboration, we maintain assertiveness towards our interests and needs and we do the same towards the interests and needs of the other, with the intention of serving them. Collaboration is the posture of action requested in mediation.

Building a solution based on mutual satisfaction does not imply giving in to what the other wants, but rather acting cooperatively, maintaining assertiveness in a double sense.

The collaborative action requested by mediation invites the parties to think, simultaneously, about themselves and about the other and enables the construction of agreements based on mutual benefit.

Due to its contemporaneity, mediation strongly approaches the principles of consensus building, an instrument based on self-composition with sustainability of differences. Consensus building makes it possible to create mutually beneficial solutions, having as a first rule the possibility of remaining in disagreement - even in disagreement, we need to create a solution that serves us more and better than the current situation. It is an instrument of choice for common markets, public policies and international politics. Relationships continued over time benefit significantly from its principles [6] .

It is the principles – what serves as a basis, pillar, root, fundamental proposition – that differentiate between conciliation and mediation, not their purposes. The principles govern our actions and distinguish their purposes from those arising from similar practices.

The comparative reading offered throughout this article is based on the different peculiarities that govern both practices - conciliation and mediation - from the elucidation of their principles.

Recognizing a clear distinction between conciliation and mediation allows our culture to integrate yet another instrument of access to justice into its multi-door system, as well as allowing us to benefit from both resources with their different purposes, their different applicability and dissimilar social reach.

 * Text published in October 2008 – Conflict Mediation – New Access to Justice Paradigm. Paulo Borba Casella and Luciane Moessa de Souza (coord). Ed. Forum

13 . references

ÁLVAREZ, Gladys S., HIGHTON, Elena I., JASSAN, Elias. mediation and justice. Buenos Aires: Depalma, 1996.

BUSH, Robert A. Baruch, FOLGER, Joseph P. The promise of mediation: the transformative approach to conflict. San Francisco, CA: Jossey-Bass, 2005.

CAIVANO, Roque J., GOBBI, Marcelo, PADILHA, Roberto E. negotiation and mediation: Appropriate instruments for modern law. Buenos Aires: AD-HOC, 1997.

CALCATERRA, Ruben A. strategic mediation. Barcelona: Gedisa, 2002. 361p. (Prevention, Administration and Conflict Resolution).

CALMON, Petronio. Fundamentals of mediation and conciliation. Rio de Janeiro: Forensics, 2007.

CARDENAS, Eduardo Jose. The client negotiates and the lawyer gives the advice: a variant not often used in family conflicts. Buenos Aires: Lumen, 2004.

COOLEY, John W. Advocacy in mediation. Translation by René Loncan. Brasilia: UnB, 2001.

FIORELLI, José Osmir, MALHADAS JUNIOR, Marcos Julio Olivé, MORAES, Daniel Lopes de. Psychology in mediation: innovating the management of interpersonal and organizational conflicts. Sao Paulo: LTR, 2004.

LEITE, Eduardo de Oliveira (coordinator). Mediation, arbitration and conciliation. Rio de Janeiro: Forense, 2008. (Major current issues ; 7).

MOORE, Christopher W.  The mediation process: practical strategies for conflict resolution. 2nd ed. Porto Alegre: Artmed, 1998.

SCHNITMAN, Dora Fried, LITTLEJOHN, Stephen (eds.). New paradigms in mediation🇧🇷 Porto Alegre : Artmed, 1999.

SERPA, Maria de Nazareth. Theory and practice of conflict mediation🇧🇷 Rio de Janeiro: Ed. Lumen Juris, 1999.

SLUZKI, Carlos E. The social network in systemic practice: therapeutic alternatives. São Paulo: Casa do Psicólogo, 1997.

SUARES, Marines. Mediation: dispute management, communication and techniques. Buenos Aires: Paidos, 1996.

SUSSKIND, Lawrence, MCKEARNAN, Sarah, THOMAS-LARMER, Jennifer. The consensus building handbook: a comprehensive guide to reaching agreement. Thousand Oaks, CA: Sage, 1999.

________

[1] Term coined by Frank Sander – MultiDoors CourtHouse – 1985, to designate the possibility of offering and choosing different methods of conflict resolution integrated to the Judiciary.

[2] Rubén Calcaterra is an Argentine author who defends the deconstruction of conflict as a condition for self-composition and the restoration of social relationships. In his view, genuinely self-compositional methods must include three consecutive steps: deconstruction of the conflict, reconstruction of the social relationship and co-construction of the solution. For the author, the methods that work with suggestion or determination of the solution do not need this step by step and have different social reach. The topic is discussed in: CALCATERRA, Rubén A. strategic mediation🇧🇷 Barcelona: Gedisa, 2002.

[3] New Paradigms in Mediation is a work coordinated by Dora Fried Schitman that brings together several articles related to paradigmatic changes proposed by mediation. In this regard, see: SCHNITMAN, Dora Fried, LITTLEJOHN, Stephen (eds.). New paradigms in mediation🇧🇷 Porto Alegre : Artmed, 1999.

[4] Carlos Sluzky is an Argentine psychiatrist, married to Sara Cobb, a world reference for mediation, who has focused on the topic of social networks and their repercussions. For this purpose, consult: SLUZKI, Carlos E.The social network in systemic practice: therapeutic alternatives. São Paulo: Casa do Psicólogo, 1997.

[5] The authors' interest in the necessary change in the attitude of lawyers when they advise their clients in mediation processes is growing. This theme can be found at: COOLEY, John W. Advocacy in mediation. Translation by René Locan. Brasília: Publisher Universidade de Brasília, 2001; CARDENAS, Edward. The client negotiates and the lawyer gives him advice: a variant well used in family conflicts. Buenos Aires: Editora Ilumen, 2004.

[6] The construction of consensus – an instrument especially aimed at compositions that involve multiple parties and multiple interests – gains privilege in contemporary times due to having as a fundamental principle the respect for differences in coexistence, social competence necessary for the man of this century. Consensus Building Institute http://cbuilding.org/ is an institution dedicated to this theme that motivates growing literary production. A synthesis of its multiple aspects is: SUSSKIND, Lawrence, MCKEARNAN, Sarah, THOMAS-LARMER, Jennifer. The consensus building handbook: a comprehensive guide to reaching agreement.Thousand Oaks, CA: Sage, 1999.