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<xTITLE>A Philosophical Approach to Alternative Dispute Resolution Systems</xTITLE>

A Philosophical Approach to Alternative Dispute Resolution Systems

by Zeno Daniel Sustac
September 2013

This article is an excerpt of a dissertation discussing various ADR techniques: conciliation, reconciliation, and facilitation. See full article below.

 Zeno  Daniel  Sustac

Conciliation is an autonomous form of conflicts settlement where the intervening third party is called a conciliator. Within the conciliation procedure, the achievement of the parties` agreement is pursued with regard to a conflict extinguishment, but unlike the mediator, the conciliator does not analyze the conflict, but “only tries to clarify to the parties the position of each of them in view of reestablishing trust between the parties, correcting their deficient perceptions and helping them reach a reasonable understanding of the reasons generating the conflict” . As a form of ADR, conciliation is different from the conciliation procedure stipulated by the Romanian Code of procedure. In accordance with the provisions of the latter, the conciliation procedure is a “mandatory procedure instituted by the Romanian legislator which only borrows the name of the alternative method of conflicts settlement” . As the other alternative methods of litigations settlement, conciliation is not a new form either, an important bench mark in the conciliation field being represented by the American Conciliation Service founded as far back as 1917 .

Reconciliation or “restoring Justice” is considered a term “uncomprehended and elusive which is exploited in rhetoric and which is hard to achieve in practice”. The reconciliation term has profound theological and political meanings. In this context, reconciliation was defined as being “a tangible experience of living together within the community” . Reconciliation was associated with the theory about “social harmony”, this being the method by means of which the conflicts roots between the parties are permanently eradicated and the relations between the parties are reconstructed in an improved form . Reconciliation is an autonomous term and idea, but in practice, for maximum results, this must be associated with another conflicts settlement method, and could often become a technique of mediation or even of negotiation. This is because only by means of reconciliation a total conflicts settlement is offered helping rebuild the harmonious relations between the parties.

At last, the good offices are as well an ADR form and they imply using diplomatic means for reestablishing the relation between the parties, their invitation to various meetings, but also offering suggestions for conflict resolution. In the public international law, the good offices can include as well truces supervision. As an ADR form, good offices are often used in commercial litigations, but as international conflicts resolution, good offices and mediation, conciliation and negotiation are considered traditional methods of resolution. Regardless of the situation whey they intervene, good offices imply voluntary cooperation of the parties with a neutral third party which, in the case of international disputes, can be an individual, an international organization or a state which offers to grant assistance to the parties in view of settling the disputes between them by means of negotiation, and which does not fulfill an arbitrator role in the dispute .

In addition to the indicated ADR forms, we must mention that it has other unconventional forms as well: “Online Dispute Resolution” – well-known under the acronym “ODR” or “e-ADR”;  “Med-Arb”, “Arb-Med”, “early neutral evaluation” (EPN or Early Neutral Evaluation), “Collaborative law”, Ombudsman. The foreign literature dedicated to ADR mentions as well other hybrid forms of disputes alternative resolution such as: facilitation (which is also a technique used by the already reminded forms of ADR), designation of an expert, mini trial, Med – Rec, facilitated negotiation, private trial, etc. Some of these hybrid forms do not have yet a corresponding term in Romanian, for example: Settlement conferences or Fact Findings. The array of these hybrid forms comes to show once again the dissatisfaction with the traditional methods of conflicts resolution .

The final chapter of the paper is dedicated to the future on which the ADR forms presented in the previous chapter are focused, namely building a culture of peace from the narrowest level – the individual one, to the widest level – world level. The building of a culture of peace implies two essential aspects. On the one hand, it is necessary to build a positive spiritual picture about the culture of peace , and, on the other hand, we must look at the picture created by reality, namely by human predisposition to violence, but also human capacity to develop peaceful environments . Rivera shows that in a culture of peace people must have a behavior that promotes empathy and well-being of everyone. Surely this behavior must be supported by creating an adequate institutional framework based on specific rules and values. Such a culture would offer, in accordance with opining expressed by Boulding, security by acknowledging diversity and human identity appreciation by toleration .

The initiative of the United Nations came, among others, to support the creation of such a culture of peace. The idea of the United Nations for building a culture of peace for the humanity’s future was developed within the UNESCO International Congress of 1989. After more than 20 years since this initiative, the European Union received, on December 10, 2012, the Nobel Prize for Peace in Oslo, Norway, for its efforts and demarches made in this direction. The introduction of the culture of peace theme in this paper is justified, in our opinion, by the major objective that ADR formulates: an application as extended as possible of the peaceful methods of conflicts resolution and this can only be achieved in the context of building a culture of peace.

The phrase “culture of peace” became the fundament of the resolution adopted by the General Assembly of the United Nations which defines it from the perspective of the values, attitudes and behaviors which reject violence, which prevent conflicts by settling their causes and which solve problems by means of dialog and negotiation. As well in the framework of this resolution the idea that both states and civil society can reunite their forces for promoting a culture of peace by advancing a few of its essential aspects was proposed: education (especially with regard to the amicable litigations settlement); sustainable development (to be understood as eradication of poverty,  reduce of inequalities, etc.); human rights; gender equality; democratic participation; understanding, tolerance and human solidarity; communication and free flow of information exchange; international peace and security. These aspects are interdependent and complex and were debated in the second part of this final chapter.

In the third part of chapter three we considered that we must make short references to the philosophical conceptions which took shape with regard to peace: “peace as slavery or subjugation”, “peace as modus vivendi”, “peace of a right and quiet order” and “positive peace” . Among those who distinguished themselves for their contributions to building a culture of peace we must reminded Dante Alighieri, Pierre Dubois, Georges Podiebrad, Emeric Cruce, Saint Pierre abbot. We referred at large to Grigorio López and the “kiss of peace” , but also to Immanuel Kant and the “eternal peace” .

Finally, the last part of the paper is dedicated to analyzing the general and special methods of building a culture of peace. In the category of the general methods of building a culture of peace are included: peaceful actions and trust; means of amicable settlement of conflicts; deliberative dialogue and restorative justice. The category of special means includes: personal transformations; peace in the family; participation to community actions; reconciliation – as a base for a culture of peace .

The peaceful actions promote social rules which avoid violence. This help building trust between individuals and groups and helps disperse power within the society, enhancing the confidence of groups that might be excluded, contributing to the democratic participation and to appreciation of communication between groups. The engagement in nonviolent actions promotes the creation of institutions that respond to the interests and the needs of the community, which reflect rules of social justice and which perform efficient actions . Trust is a social relation between individuals, between individuals and groups and between groups. Trust is based on the direct interactions between them. By means of interaction, social norms are created which favor dialog, cooperation and reciprocity. Some authors define trust as being a concept “built by moderation, in stages, by facts, not words, and which is supported by openness in interpersonal relations” . Other authors think that “trust is context related” . In his paper, F. Fukuyama shows that the trust benefits, such as cooperation and capacity to build, are born from trust, but only if it is mutual . From this point of view, it is considered that trust is strictly related to the “organic solidarity” phrase promoted by Durkheim. This is because the actors of a community rely on trust to survive. Thus, trust has a functional component and acts a binding social element between the members of the society, by means of organic solidarity. The members of a community must, as a general rule, adhere to the norms and values promoted by the organic solidarity . Failing trust, people pass to relations costs evaluation .

The means of amicable settlement of conflicts were analyzed at large in chapter II of this paper. The Program on International Conflict Analysis and Resolution (PICAR) and various other initiatives in this respect have created conflicts resolution groups which promote amicable methods for conflicts settlement. PICAR focused on three main aspects: evaluation of conflicts settlement interventions efficiency and performance of comparative studies of the various methods of amicable litigations settlement; conflicts settlement properly; and analysis of the interference between the conflicts settlement efforts and the activities meant to the human rights observance .

Unlike the alternative methods of conflicts settlement whose role is to help parties to a conflict to conclude a mutually acceptable agreement, the role of dialogue is to build a better communication between the parties, to build relations and to help to the understanding between persons or groups engaged in a conflict situation or at a loss. In such cases, the deliberative dialogue can be used for establishing the bases for negotiated or mediated solutions or for developing a respectful communication. The deliberative dialogue is thus the basis of a constructive social co-existence. The deliberative dialogue can be used when the communication process in which people are involved hinders them from achieving their objectives. These are the cases when the parties are at a loss, and the communication between them is unproductive. The effect of the deliberative dialogue depends as well on the parties’ implication and interest. Only in this way the deliberative dialogue can help build and support a culture of peace by generating better communication, by generating understanding and relations, creating and maintaining the fundamentals of co-existence and of a sustainable system of amicable conflicts settlement .

The subject of restorative justice is closely related to the process of building a culture of peace, although it represents a side of the criminal law. The criminal law is the instruments by means of which the state fulfils its central role of doing justice . The restorative justice phrase was defined by Mediation UK as being “an approach which focuses around determining the prejudices caused by law’s breach and finding the adequate means of their reparation” . The restorative justice represents “a challenge for the life style of a community, for the way it responds to conflicts and justice problems and social injustice”. The restorative justice has the potential of influencing all social life fields .

Next to the general methods of building a culture of peace, the specialized literature refers as well to certain special methods of building the culture of peace, meant for special levels. The culture of the peace was defined as being “a particular set of (…) values, attitudes, traditions, behavior models and life styles” . This definition was analyzed by certain authors who addressed themselves questions related to what type of personal transformations are necessary for building a culture of peace, the reason why personal transformations are important for building a culture of peace, the existence of a potential universality of values, attitudes, behaviors and life styles which are the basis of building a culture of peace, but also their methods of rendering efficiency . The fundamental component of any culture consists in its conception of human nature, but also of the implicit or explicit personality model. Numerous actors have characterized the personality normative models specific to the globalized stage of capitalist expansion, which are particularly relevant for creating and consolidating a culture of peace. To this effect, it was affirmed that “cultural conception and ego configuration are shaped by the economy and the politics specific to the period in question” .

Families can contribute to peace promotion, but these can constitute a center for developing hate, prejudices and violence. Violence and abuses are often encountered in the life of many families around the world. The creation of a culture of peace requires the consolidation of the families` ability to interact peacefully and to prevent violence and abuses. This consolidation can be done from “top to bottom” by taking certain measures which determine the change of social norms or from “bottom to top” by reducing conflicts and increasing cooperation, negotiation and tolerance within families. The contextual factors such as stress, economic resources, life quality, neighbors, etc. influence the family’s capacity to apply the amicable methods of conflicts resolution. For this reason, families must be supported in implementing the means of creating and supporting a culture of the peace .

Peace building requires the participation of all, including the poor, for finding solutions for the problems of the community, for improving the resources management capacity and for the vulnerabilities reducing process. These objectives can be achieved by engaging everybody in the community, voicing the common concerns and contributing to the participation capacity increase in the community’s activities. A participation capacity increasing method is represented by rural participation to the community decision making and management process. It is necessary as well to pay close attention to the community’s voice, the responsibility toward its members, transparency, efficiency and equity. It is thus considered that rural participation represents a good approach of developing participation in the community’s actions and of social change which can contribute to the building of a culture of peace .

One of the most important challenges with which the international community is confronted is represented by the amicable settlement of the numerous violent conflicts occurring nowadays. The challenge is manifested on two levels, as Bar-Tal shows. Firstly, these levels refer to the temporary management of conflicts which imply negotiations, mediation or other means of amicable litigations settlement which lies with leaders and elites and which, in addition, requires support from the population. The second level of challenge is deeper and is represented by reconciliation. This requires social change shared by the members of the society. Thus, the roots supplying the conflict must evolve towards aspects, ideas and values which can serve as a base for building a culture of peace . Reconciliation determines both laying the foundations for conflicts settlement and preparing the society’s members to live in a peaceful context

Reconciliation is, by nature, gradual, mutual and voluntary. The fundamental requirement is that the psychological foundations to reach social mentality so that they are shared by most members of societies . Only by making these changes we can guarantee the possibility of conflicts settlement, and afterwards the “solidification of the peaceful relations between rival groups – a stable basis which is rooted in the humans’ mentality”. The initiation of such a change depends of factors such as violence level, available resources for sustaining a conflict, the extent to which people and their leaders support the peace process, the humanization level of the opponents, but also on the international community support.


Attachments



philosophicalADR.pdf  (philosophicalADR.pdf)

Biography


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, a writter in ADR field and a mediation trainer (having performed more than 5000 hours of mediation training), examiner and program evaluator in mediation field.

Sustac wrote and co-wrote: "Independent Report Concerning Mediation and the Mediation Profession in Romania" (2007), "Alternative Dispute Resolution" (2008), "Mediation, standards and procedures" (2009) and "Mediation guide" (2009), “Negotiation Handbook” (2011), „Best practice guide on the use of mediation in cross-border cases” (2013) and „The philosophy of mediation” (2013).



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Website: www.sustac.ro

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