Mediation at the turn of the Millennium

Tania Almeida
31 May 1999 
Editoria: Opinion - page 02

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

Certainty, cause and effect, centralization, correct model, single solution, correct explanation governed the conceptions advocated by modernity. A fertile time in the production of standard models in the most different fields - in education, finance, business or government administration - it was possible to try to achieve linearly 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 unique and correct solution.

The result of these dissensions, the 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 judgment 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, as a result of it. The conflict arises 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 conferred 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 the indispensable skill for peaceful coexistence, exposing to the view that the collaboration expressed in common markets, business junctions and transnational governance the biggest source of survival.

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

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

Agile and informal, Mediation allows for a drastic reduction in financial costs and emotional wear and tear caused by disagreement, shortening the duration of disagreement and litigation, demonstrating a more cost-effective conclusion than using other resources. Governed by the autonomy of the parties' will, it seeks, through the Mediator's performance, to take care of the mutual satisfaction of the interests of all 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 professional trained to act as a facilitator of the dialogue for understanding, acts as an impartial third party helping to identify common interests, deadlocks 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 controversy, elaborated.

A 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 Mediation carried out. This percentage is even higher when the effectiveness and feasibility of these agreements is a theme, since they are produced from the ideas, suggestions and deliberations of the parties themselves, whose authorship creates commitment and responsibility with them.

Mediated three years ago, reformatted in the United States of North America, as a structured process, with the intention of resolving outside the scope of the judiciary those matters that could dispense with it, with the intention of wiping out the volume that flowed 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 has since been shown to include a wide range of secondary benefits, ranging from reducing the incidence of litigation to promoting improved communication and relationship between the parties.

This preventive effect, elected Mediation as an alternative resource of choice, in the resolution of conflicts and in negotiations that involve relationships continued over time. Expanding the preventive possibility, many countries have included it as a clause for self-composition of disputes in commercial, financial, insurance and business contracts; today, for those cultures, this constitutes 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 of 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 the handling of disputes. Expanding access to justice, cooperative and peaceful solutions return to man the possibility of direct negotiation and consequent authorship.

In search of a level of results and credibility similar to that of some countries, Institutions dedicated to Mediation and Arbitration, congregate in a National Council; aiming at the development of an autonomous, non-adversarial and authoring mentality in the dispute resolution processes, Public Institutions offer their users, Mediation as an alternative; aiming for speed, effectiveness and privacy in resolving 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 turn, Mediation, for all its characteristics, shows itself to be consistent with the paradigms of this turn of the millennium and essential as a resource of governance , administration and negotiation, in the most distinct areas of social coexistence.