Philosophy of Mediation

The philosophy of mediation is a present-day subject and of interest among the specialists in the Alternative Dispute Resolution field. The first paper at world level dedicated to this subject and representing the topic of a doctoral dissertation was published in 2013 in Bucharest. The work entitled “Philosophy of mediation”, whose author is Zeno Sustac, proposes a new approach of the ADR phenomenon from the perspective of the origins on the basis of which they were created as well as from the perspective of the objectives that we would like to see accomplished. When we speak about the philosophy of mediation we inherently have to relate to the philosophy of law and the philosophy of conflict.

The philosophy of law, acknowledged at speciality literature level and taught in law faculties, proposes a philosophical approach on law, answering mainly in a theme, that establishes the relation between law and moral, to the question “what is law? ”. The philosophy of mediation proposes the same approach, the only difference being that the question that answers must be given to is “what is mediation? ”. The philosophy of mediation is not at all inferior to the philosophy of law, having a more noble nature that puts in the centre the act of encouraging the maintenance of a harmonious relation between the social players. The philosophy of mediation is not conflicting, but treats the subject of conflict philosophy which presents a low interest for the philosophy of law. Having different objectives, the efficient support of a “legal war” in the case of the philosophy of law, namely the harmonization of interpersonal relations disturbed by the occurrence of certain disputes, the two philosophical approaches slightly overlap. Although certain themes might present a common interest, the approaches are different.

The conflicts resolution models are various, these being influenced by the endogenous conflicting environments (where conflicts control and resolution mechanisms exist) or exogenous where they appear. According to the opinion presented by R. Wandberg in the paper “Conflict Resolution: Communication, Cooperation, Compromise”, Capstone Press, Minnesota, 2001, the conflict resolution is “a process of reducing or calming the conflict in order to prevent violence, (…) it is a way of building or rebuilding trust within a relation”.

The philosophy of law is not centred on the relation and does not focus predominantly on the conflict constructive aspect. Yevgenii M. Babasov brought his contribution in 1997 to outlining conflictology as a science in itself through the paper “The Conflictology”, Pravo i Ekonomika, Minsk, approaching conflict both from a sociological perspective and a philosophical perspective and analysing both its constructive and destructive aspects.

More often than not the conflict is present as a form of relation to others. This opinion is supported by contemporary researchers such as S. Carfantan1 who builds this point of view starting from the opinions expressed by Hegel and Sartre. According to them, the conflict is perceived through the existence of two plans, a superior and an inferior one, being situated at their meeting point. In this framework, Hegel stages the present forces which are contrary to one another and which, more often than not, are not on the same level. Hegel presents the idea according to which the conflict is "part of a healthy relationship" between individuals, being, at the same time an integral component of reconciliation. "Human beings need different institutional spheres where to find their intimacy, to update their individuality and to enjoy political communion", and "the conflict is the price of this differentiation" 2. For analyzing Hegel’s ideas related to conflict and to the fact it represents a source of change and development, Charles Taylor uses the phrase "ontological conflict" 3.

Joseph S. Catalano shows that for Sartre the conflict brings into discussion the human vulnerability. For Sartre, the relation between the dominant and the dominated is established by means of a look that can lead to a creation of mutual hostility 4. S. Carfantan shows that if we look at the conflict as a "human relationship model", then its consequences are those presented by Sartre in the phrase "Hell is other people", namely that humans’ freedom is absorbed by others, despite the fact that freedom is inalienable. In this context, the author believes that humans are transformed into objects within the power relation established between them, and Sartre’s expression "I think, therefore I am" becomes "I am being watched, therefore I am". In the latter case, the ego is supported by the looks of others. Failing this look, the "inexistence" feeling appears. In other words, in order to exist, humans need to be watched, to be taken into consideration, to be recognized by others. From this presentation it results that the base of human relations is not represented by communication, but by conflict or humans` hostility. According to Carfantan, we are dealing with a paradoxical situation in which, although the conflict is seen as a relation, this is not in fact a relation, but the failure of the relation, it is the "putting into stage of certain individualities that came out of the isolation state" 5.

Another aspect that must be taken into consideration when analyzing the conflict is represented by values pluralism – a problem that was widely deliberated by Isaiah Berlin. This is because, as from 1950, I. Berlin published numerous works related to the pluralism’s conflict nature and the conflict of values. It must be mentioned that, those that approached values pluralism used the phrase "moral universe" to refer to "the world of values, rules, and ethics that surround human beings". Despite the fact that the ontological status of the moral universe is not clearly distinguished in the work of I. Berlin, as Connie Aarsbergen-Ligtvoet indicates, the fundamental idea of Berlin on the "moral universe" is that there exists a values and purposes diversity which generates tensions and conflicts. In this context, it was concluded that the work of I. Berlin represents, from this point of view, an indispensable point of reference 6.
                      While some authors as Boulding define conflict as being a "a competition situation in which the parties are aware of the future potential incompatibilities, where each party wishes to occupy a position which is incompatible with the others wishes" 7, others see it as being "a social condition which appears when two or more actors pursue purposes that exclude each other or which are incompatible". Many definitions given to conflict relate as well to international life where "the conflict behavior can be understood as war or threat starting a war" 8. In the book "Contemporary Conflict Resolution", Oliver Ramsbotham, Tom Woodhouse and Hugh Miall use the term conflict to indicate "a vast set of circumstances in the framework of which the parties in conflict become aware that they pursue incompatible purposes" 9.
                      The Romanian literature includes many books which have as debating theme the conflict and its resolution means. Thus, in the paper "Managementul conflictelor" (Conflicts management), Nicolae Tritoiu defines conflict as being "a social phenomenon which appears when two or more players in an interacting or interdependency relation pursue incompatible purposes or although they have common purposes they mutually contest their means of actions and the rules of the game". The author indicates as well that the term "conflict" is "used to describe a series of emotional states of individuals such as restlessness, hostility, resistance, as well as all types of antagonistic opposition between individuals or human groups" 10. Other Romanian authors define conflict similarly as being "the interaction of groups (individuals) who perceive purposes, intentions, values and interests as being incompatible when their actions interfere for achieving the proposed objectives" 11.
                      Considering all the definitions reminded in the first chapter, but also my practical experience as mediator, we have proposed and we support the following definition for conflict: "The conflict is a contextual social phenomenon determined by the clash between the interests, the concepts and the needs of certain persons or groups when they enter into contact and have different or apparently different objectives" 12.

Conflicts that are easily to mediate (or those that can be solved through other ADR methods) many times come to be solved by means of litigant means, contusive due certain external factors (others than the parties) that have a direct impact on the maintenance and the amplification of the disputes in question.

A useful instrument in determining the intensity of conflicts and choosing an adequate resolution method is the Conflict Scale – SIG SCALE. The conflict scale, proposed to the specialty literature in 2011 in the paper “Ghid de negociere” (Guide to negotiation) published in Bucharest, Editura Universitara, by the authors Zeno Sustac and Claudiu Ignat, proposes an objective radiography of conflict by analysing the following relevant aspects:

1. Parties awareness with regard to conflict existence
2. Number of parties in conflict
3. Number of parties affected by the conflict

4.Duration of conflict
5. Previous conflicts between the parties
6. Previous resolution attempts
7. The wish of the parties to maintain the conflict
8.Resources involved in maintaining the conflict
9. Stress exposure
10.Gravity in case of non resolution

For each of these variants, a score composed of 1 and 3 points is awarded, depending on its relevance in determining the conflict intensity (in accordance with the scale developed by authors). The mathematical formula for the SIG index calculation proposed to the speciality literature is the following:  SIG Index =(C+P+PA+V+CA+IS+DI+R+ES+G)/10    

The SIG index is a value obtained using the formula above which determines the intensity of a certain conflict and positions it on the Conflict Scale. The values obtained are ranked on the SIG Conflict Scale as follows: between 1.0 and 1.6 on the SIG scale (value specific to the superficial conflicts), between 1.7 and 2.3 on the SIG scale (value specific to moderate conflicts) and between 2.4 and 3.0 on the SIG scale (value specific to serious conflicts). The value on the SIG scale indicates the intensity of the conflict measured. If the values are at the upper limit of the category on the SIG scale, the conflict can have influences from the next category. Thus, a 2.3 value situated at the upper limit of moderated conflicts can present as well characteristics of a serious conflict, the conflict actually being moderate to severe. The concrete utility for the ADR field specialists consists in supplying precious  clues for the analysis and management of any concrete conflicting situation, helping them to identify exactly the type of conflict (superficial, moderate or severe) with which they are confronted and thus giving them the possibility to chose the right approach for the situation  given.

The ADR conflicts resolution methods were born subsequent to the low efficiency and the imperfections existing within the traditional methods of conflicts resolution. The thinkers of various philosophical schools approached conflict along the time   from a philosophical point of view. Themes such as isolation, loneliness, confusion, sympathy, friendship, love, justice, truth, religion, etc., which are strongly connected with the idea of conflict, were the subject of exponential specialty papers in global philosophy. Conflict always represented over time a subject of debate for theoreticians such as: Plato, Aristotel, Nicolo Machiavelli, Thomas Hobbes, E. Durkheim, Max Weber, David Lockwood, Lewis Coser, Talcott Parsons, J. R. P. French, Goldman Schlenker, Johnson Pruitt and many others. Relating to the idea of conflict when considering other aspects and the embraced philosophical thinking generated the most diverse possible approaches and definitions of conflict. From a religious point of view, the first conflict that can be identified is the one that took place between the first human beings created, Adam and Eve, and God – their creator, as it derives from the biblical texts. Whether we look at the conflict as being the war of all against all, the father of all things, or we are the adepts of the idea that the human being is the measure of all things, it is necessary to analyse the conflict from a multidisciplinary point of view and under no circumstances to carry out an analysis reported strictly to a certain field or a certain science, so much the less in relation to a certain school or philosophical thinking.

The purpose of the philosophy of mediation is, among others, to contribute to the identification of „life philosophy” of the parties actually involved in the conflict, of their systems of values and references and to contribute to the identification of needs and necessities hierarchization. Those who, from a legal point of view, have the powers to dispose, to transact, shall do this only in a certain context in negotiating with the other party and here the psychological and philosophical sides are those that can make a difference between building consensus or perpetuating conflict. The personal vision on conflict, expressed in many specialty papers is based on this premise: conflict is a contextual social phenomenon caused by the clash between the interests, the concepts, the needs, or the egos of certain persons or groups and is manifested when they enter into contact and have different objectives or apparently different objectives. It is omnipresent, characterising the entire evolution of human society and, due to this fact, it is important to manage it constructively and to transform it in a source generating opportunities and in a progress factor. Mediation, although is not a miraculous and generally valid solution, focuses considerably on returning to normality, proposing the accomplishment of a consensus architecture in daily life. But sometimes things do not work as we imagine and our reality is not identical to the reality of the other. Building the social balance and the social peace depends on the inner structure of the factors involved as well as on the consensus or dissension generating factor with which the parties interfere. The constructive dialogue proposed by mediation, its solid principles which rely on partnership, team work and cooperation, are solid bricks put at the foundation of a healthy society in which maintaining and improving the relations between fellow humans presents a high interest.

Endnotes

                       

Zeno Daniel Sustac

Zeno Daniel Sustac, PhD (born March 05, 1976)  is an arbitrator, attorney, insolvency  practitioner and mediator, Vice President of the Romanian Mediation Council, Co-President of the National Union of Mediators from Romania and Co-President of the National Union of Negotiators from Romania. He is an european expert in the field of cross-border mediation,… MORE >