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<xTITLE>Affect in Methods of Dispute Resolution</xTITLE>

Affect in Methods of Dispute Resolution

by Celia Caiuby, Andrea Maia
March 2021

ABSTRACT

The paper addresses affect in its philosophical aspect, proposing a rational reflection on the individual perceptions of each party involved in a conflict, in order to analyze how this affection influences the methods of dispute resolution. It assesses the changes in world view from the perspective of Thomas S. Kuhn, according to whom the visions and world views change in line with the society that inhabits the world at that time, with the world being understood as the material universe that has always been the same. It goes on to consider how beliefs and imaginative capacity were instrumental to the formation of human society and how emotions influence decision-making. In considering decision-making as a more emotional rather than rational process, this paper goes on to address the relationship between affect and methods of dispute resolution. It mentions the identification regimes proposed by Vladimir Safatle and fear as political affect, which is capable of causing paranoid as well as violence and risk-averse social behaviors, in order to correlate this whole context with the importance of suitability of the conflict to the environment/method of dispute resolution for the efficiency of the negotiations. 

INTRODUCTION

Scientific studies across several disciplines, such as social psychology, neuroscience, behavioral economics, etc., evidence that most individual Decisions are made by a part of the brain linked with emotions.

As time goes by and we acquire experience, we affect, and are affected by, the environment and other people. Undoubtedly, individual decision-making based on emotions is influenced by the environment, based on each person´s experiences, location (geography), period of time, beliefs and myths, social construction, etc.

Considering such proposition, we will address affect, its importance and influences on the dispute resolution methods.

  1. PHILOSOPHICAL APPROACH TO AFFECT

When we talk about affect, we are referring to affection, or else, how we affect, and are affected by, the environment and other people.

In his work The Ethics, Spinoza talks about the origin and nature of the affects and the mind's power over them and affirms that affections may increase or diminish the body´s power of acting. 

It should be pointed out that the mind's decisions are based on memories of previous affects and experiences from interacting with other people, places, objects, etc. In the author's words:

[...] Simply from the fact that we have regarded a thing with the emotion of pleasure or pain, though that thing be not the efficient cause of the emotion, we can either love or hate it. (SPINOZA, Benedictus de. ÉTICA. Belo Horizonte: Autêntica, 2018.)

In this respect, there is no question that the geographical location, culture, social interaction and, particularly, the historical moment, have some impact on affects formation and on how such affects are determined and determine our feelings and actions.

 Society is subject to constant transformation and previously valid concepts, rules and worldviews may no longer apply or make sense to the current or next generations.

It is clear that the society and the world are permanently evolving. Currently, globalization is a reality and technology is a part of the life of most of the world's population. 

Access to internet and to mobile devices reduces borders, converges interests, spreads news in real time (real and fake), and enables financial transactions, purchases, complaints, and even dispute resolutions. 

In view of so many possibilities, it is hard to believe that a little more than 40 years ago divorce did not even exist in Brazil, and that the legal dissolution of a marriage became possible only with the enactment of Law 6015/77. 

In addition, the world underwent countless transformations during the 20th century, with the Third Industrial Revolution, also known as the Digital Revolution.

In such period, the important technological innovation process was marked by developments in the fields of information technology, robotics, telecommunications, transports, biotechnology, and nanotechnology.

In the beginning of the 20th century, in 1913, Henry Ford introduced the assembly line production technique; the first television transmission was achieved in 1928; the birth control pill was developed in 1951 and allowed for greater sexual liberation and advances in gender equality, which led to a behavior revolution that resulted in the Hippie movement in the 60's.

In 1952, optical fiber technology revolutionized the telecommunications industry.  In 1957, the first artificial satellite, Sputnik, was launched into the Earth's orbit, and in 1961 (during the Cold War)  the Russian astronaut Yuri Gagarin became the first man to travel into space.

We witnessed the arms race, the discovery of the fundamental process for nuclear energy production (in 1938); the increased demand for personal computers in the 80's, the creation of the  World Wide Web (the internet) in 1992; there were also many other technological and scientific advances, including mammals cloning (1997) and the launching of the first iPhone in 2007, followed by the advent of the APPs economy, which gives access to a range of comfort items, services, entertainment, etc. through a mobile  device in an increasingly connected world.

But many other advances marked the 20th century, besides those related to the industry, science and technology. During that period, the world underwent two world wars and important political conflicts, such as the Gulf War in 1990, which led to the Iraq war in 2003. More recently we were caught by surprise by the COVID-19 pandemics.

 Nowadays, the 21st-century world faces great challenges.  The world population grew almost fourfold in the last century, and the social inequalities that came with such growth triggered new conflicts.

The world is having to deal with the antagonism of the new times. Notwithstanding the fact that globalization is a reality, there are new demands for economic protectionism and for sovereignty reinforcement. 

Currently, military wars gave place to commercial wars. While several countries progress in the recognition and legitimation of human rights, including those related to gender issues, other countries nurture intolerance, religious extremism and terrorism.

While the existence and legitimacy of a New Law Merchant (Lex Mercatoria) is in discussion, the United Kingdom left the European Union; while the UN establishes the goals of the 2030 Agenda for a Sustainable Development, the world follows the drama of the refugees, etc. 

In the words of Thomas Kuhn, "though the world does not change with a change of paradigm, the scientist afterward works in a different world". (KUHN, Thomas S. A ESTRUTURA DAS REVOLUÇÕES CIENTÍFICAS. São Paulo: Perspectiva, 2017. p. 214.)

For him, nature flows in such a way that things can never be exactly the same again. 

Although the world as a material universe has always been the same, the world views and conceptions change, according to the society that lives in it, in a specific moment.

During a scientific revolution, a change in conscience that transforms knowledge takes place.

Vladimir Safatle (SAFATLE, Vladimir. THE CIRCUIT OF AFFECTS - Political bodies, distress and the end of the individual. Belo Horizonte: Autêntica, 2016), in reply to the criticism of duration around time , defends the concrete temporality, affirming that time, in the concrete sense, is the result of the past and manages the future.

Safatle, contrasting a universal time and history, defends the existence of a continuous process of change and movement that confirms Kuhn's propositions that the world, as a society, is in constant transformation. 

Thus, by correlating the moving world and the paradigm changes defended by Kuhn and Safatle, as well as the affects as designed by Spinoza, it is possible to conclude that geographical definition, the physical space occupied by each individual, the historical and cultural moment, and the traumas and the surrounding social relationships, will influence the affects and the feelings of joy or sadness, empathy or disgust, safety or unsafety, and have a positive or negative impact during a conflict situation.

  1. ORGANIZATIONAL EVOLUTION OF HUMANITY - BELIEFS AND IMAGINATION

Yuval Noah Harari, in his book SAPIENS, A Brief History of Humankind, affirms that the greatest differential held by the Homo sapiens in the evolutionary process is due to its imagination capacity, its ability to create fiction and believe in common myths. 

The author points out that a large number of strangers may efficiently cooperate among themselves when they believe in the same myths.

He mentions that such assumption applies to both the Modern State and to ancient tribes, where the shared myths exist only in the collective imagination.

Clearly, the beliefs and the capacity for imagination were decisive for the formation and organization of the human society.

The author mentions the example of religious myths, emphasizing that two people that share the same religious beliefs, although they are unknown to each other, may fight together in a crusade or raise funds for a specific social project, just because they believe in the same God and principles of charity.

It is not different when it comes to business and commerce. Commercial negotiations are based on the existence of a belief, which can be defined as trust. 

In the contemporary history, trust is placed on fictional entities, such as market, economy, dollar, banks, trademarks and corporations, among others, which owe their validity, efficiency and legal personality to a social consensus based on fiction.

Commerce, empires and universal religion are fictions that led us to today's globalized world. 

In this context, it is important to relate such beliefs and fictions to the way people make decisions, in order to analyze the role affect plays in the dispute resolution methods.

  1. THE SCIENCE BEHIND DECISION-MAKING

Our brain goes through some stages to make a decision: First, it organizes thought, considering all alternatives, and then it analyses the quantity of information and the cost benefit of each alternative; it then moves on to weigh the possibilities and their consequences, and finally reaches a decision.

But deciding is not enough; it takes our brain at least one tenth of a second from the moment it chooses which path to take until it effectively puts the choice into practice, what means that our mind needs time to process and apply the information.

Our frontal lobe works together with the limbic system, which is the part of our brain linked to emotions, and where all feelings, good and bad, are controlled.

Should one take an unknown path or an already experienced one? How does the brain choose either to venture or not, when there are two possible paths?

Although any decision-making activates both the emotional and the rational sides of the brain, we now know that the emotional side prevails. 

Considering that decision-making is an emotional, rather than rational process, decisions are guided by affective components, even when they involve economic issues.

A psychologist specialized in behavioral economics, who received the Nobel Memorial Prize in Economic Sciences in 2002, Daniel Kahneman, affirms that loss aversion has a significant influence in decision-making. 

According to Kahneman, loss aversion in general leads people to inertia, since the disadvantages of an action have more weight than its advantages. 

It is to say that any decision-making is based on an analysis of the cost benefit it can bring. But in this process, losses loom larger than gains, thus we are more willing to avoid a loss than to make a gain.

It should be pointed out that, when making a decision, the assessment of the advantages is always associated with pleasure, while the risk evaluation is related to fear and displeasure.  

The possibility of success brings a feeling of pleasure, in contrast with the possibility of failure, which brings a feeling of loss and displeasure.

Thus, emotions can be considered an efficient tool for the evaluation of a decision’s benefit, so feelings related with pleasure are associated with correct decisions while feelings related with displeasure or pain are associated with wrong decisions.

During the decision-making process, a joint assessment of the alternatives, by imagination and emotion, conscious and unconscious, takes place. 

Given the options, the brain will decide which one can bring more advantages.

Decision-making is, thus, directly linked to the evaluation of the benefits that can result from the action. In such a way, if the benefits outweigh the risk, the action will be performed. On the other hand, if the risk and the benefits are equal, a conflict will arise, resulting in the postponement of a decision.

In situations of crisis and uncertainty, such as when there is a conflict, the effects from loss aversion are exacerbated and will impair the decision-making.

  1. DOCTRINE OF AFFECT

The doctrine of affect is a theory of musical aesthetics, widely accepted in the Baroque period; it derived from the classical ideas of rhetoric that defended that music was capable of influencing the listener's "affects" and emotions, according to a group of rules which related specific musical resources to particular emotional responses. 

The composers from this historical period attempted to express in their composition, through musical means, particular emotions or states of mind, with the objective of, through violent contrasts, rekindling and intensifying such musical effects within the listeners. 

The philosophers and scholars from that time believed that music influenced the human character and that different styles of music produced different affections. In general, some pieces of music had calming effect and could elevate the human spirit, whereas others aroused excitement and enthusiasm. 

The music from such period was not made to express a composer's individual feelings, but to generically represent the effects of all listeners. 

Nowadays, cinema and television make use of that concept and use appropriate soundtracks to emphasize emotions and put the scene into context. That is about music moderating mood. 

There is no doubt that the body has different responses to diverse sounds and musical stimulus. Classical music and music with a strong beat, such as funk or samba, bring completely different feelings to the listener.

State of euphoria or quietness can be stimulated by sounds.

Therefore, external tools, such as music, can be used to influence emotions, guide sensations and, consequently promote changes to the environment. 

Such assertion is confirmed by observing the music played in different locations, like in a dentist office, in a hospital, in an elevator, in waiting lounges, in bars, in restaurants, etc.  

Music awakens feelings by reinforcing existing social meanings or by creating new significances and allows for associations. It is a powerful affects tool, through which we are able to represent states of joy, euphoria, sadness, gentleness, etc.  

  1. RELATIONSHIP BETWEEN AFFECT AND THE DISPUTE RESOLUTION METHODS

After all, how is affect related to dispute resolution methods?

If mediation may arouse specific and usual emotions in the audience and transform the environment, the environment may also contribute to escalate or decrease conflicts.  

The environment, considered in its various aspects, five of which addressed in this brief paper, such as: "i" how we affect, and are affected by, the environment and other people; "ii" understanding the historical/social and geographical moment and being aware that, due to the world's continuous transformation, some propositions that are valid and legitimate for one generation may no longer "hold water" or make sense to the next one; "iii" the relevance of beliefs and imagination (fiction) for the evolution of society's organization; "iv" awareness that emotion plays a major role in the decision-making process; 'v' as proposed by the Doctrine of Affects, it is possible to intervene or create emotions in an audience through an affection intended for that, can not only give rise to conflicts, but also has a positive or negative impact on their resolution; it is, thus, a key for the negotiation success.

As suggested by Vladimir Safatle, assuming as truth the statement that psychoanalysis uses identification dynamics to think about the process of formation of social link, establishing social relationships is not possible without some kind of identification. 

For him, the exercise of power through identification shows that social relationships are, necessarily, relations of power and repetition, since the identification with something or someone, results in the assumption of the implicit development toward what it identifies with.

Although every identification is an exercise of power, not all power relationships are relationships of dominance. In the author's words: 

[...] A dominance relationship is an expression of submission of one's will to another's, but there is something that allows the power to circulate, and which is not the will of one or the other. Something that creates links and is not the expression of an individual's will, rather expresses an unconscious dynamic of affects. Power circulates and expropriates anything that can overthrow it.

Luiz Felipe Pondé, when addressing affects reverence, points out that there are many scholars, as Safatle, who use the language of political pulse or political affects to put them in service of a social life, which means that it is necessary to provide a political structure to make affects more assertive.

From this perspective, Safatle affirms that fear should be considered a political affect, and may result in a paranoid social behavior, averse to violence and risk.

 Knowledge about the identification regimes, their affection, fear and potential dominance relationship is an important differential when it comes to addressing the role of affects in the dispute resolution methods. The factors that influence the thought and behavior of those in conflict should be identified and taken into consideration for evaluating the most suitable dispute resolution method for a specific case.

 Also of importance is the evolution of the concepts of jurisdiction and justice, which are no longer limited to the Judiciary's monopoly of "finding the Law".

According to the Brazilian Supreme Court, Justice Dias Toffoli, in a speech delivered at the VIII St. Petersburg International Legal Forum, in Russia (17 May 2018), during a session on alternative dispute resolution methods and digital justice: "The idea is that the end of any dispute is not a judgment, but a solution".

His pronouncement reflects the current transformation moment affecting every judicial systems in the world, which results in the construction of a new concept of justice, increasingly separated from the traditional positivist definition of jurisdiction. In the modern world, the definition of justice is linked to the idea of solution.

It is important to have in mind the relevance of adapting the institutional models to social needs, in order to update and legitimate the rights protection mechanism.

The evolution of the Pure Theory of Law leads to a reflection about the changes in the role of the judges, which was extremely positivist and limited to the subsumption of the fact to the norm. There was no responsibility, since there was no norm creation activity. The contemporary judge, on the other hand, gets involved and interprets the norms focusing not only on the application of statutes, but also on justice,

In parallel to this movement termed "judicial activism", there was an increase in the demand for alternative dispute resolution methods.

It is undeniable that factors such as a person's affects and personal experiences, considering location (geography), period of time, beliefs and myths, social construction and forms of decision-making, will determine the choice of the most suitable dispute resolution method, according to a person's expectations and desires. 

  1. FINAL REMARKS: THE APPROPRIATE RESOLUTION METHOD FOR A SPECIFIC DISPUTE WILL BE THE MOST EFFICIENT ONE

The conclusion of this paper is that knowledge of the conflict and its surroundings - the parties and the social environment - allows for the adoption of the most suitable resolution method.

In this sense, there are conflicts that demand the use of both traditional and alternative resolution methods (Judiciary and Arbitration), while others demand the use of alternative tools (Mediation, Collaborative Practices, Conciliation, Dispute Resolution Platforms

The choice of the most suitable method should be based on the idea that the conflict alone influences decision-making.

Thus, the parties in conflict have their decision-making mechanisms influenced by affects and, therefore, should be assisted in choosing the best resolution method by a knowledgeable third party, who is able to explain the benefits, disadvantages and consequences of each method. 

Such conduct is in line with the fact that, during the decision-making process, the losses are anticipated by the parties and, in face of a new situation, unknown paths and possibilities, the decision-making process is not an easy one.

However, considering that both the gains and the losses are inherent to the decision-making process, new possibilities may be discovered in order to avoid greater suffering.

In fact, the appropriate resolution method for a specific dispute will certainly be the most efficient one! 

São Paulo, 29 September 2020
 

ENDNOTES:

BARROS FILHO, Clóvis e PONDÉ, Luiz Felipe, O QUE MOVE AS PAIXÕES. Campinas: Papirus 7 mares, 2017.

CORRÊA, Camile Maria Costa, FATORES QUE PARTICIPAM DA TOMADA DE DECISÃO EM HUMANOS, Thesis (Masters Program in  Psychology). Field of Study: Neuroscience and Behavior) – Institute of Psychology of the Universidade de São Paulo.

Crescimento populacional mundial, Available at: https://pt.wikipedia.org/wiki/Crescimento_populacional, Accessed on 04 September 2020

Economia dos APPs. Available at https://www.ilocomotiva.com.br/single-post/2019/04/17/EXAME-A-Economia-dos-Apps Accessed on 04 September 2020

FREUD, Sigmund, O MAL-ESTAR NA CIVILIZAÇÃO, Penguin and Companhia das Letras Editoras.

GUERRA FRIA, Available at: https://pt.wikipedia.org/wiki/Guerra_Fria,  Accessed on 04 September 2020

HARARI, Yuval Noah. SAPIENS – Uma breve história da humanidade. Porto Alegre: L&PM, 2018.

JÚNIOR, Ricardo Pereira. JUDICIÁRIO E MODERNIDADE: ORDEM JURÍDICA, TEMPO, ESPAÇO E ATUAÇÃO DA JUSTIÇA. Editora da Universidade de São Paulo, p. 37-73.

KAHNEMAN, Daniel. TOMADA DE DECISÃO EM TEMPOS DE INCERTEZA. Interview by Alexandre Teixeira/Revista da ESPM. Available at: https://www.fronteiras.com/entrevistas/daniel-kahneman-tomada-de-decisao-em-tempos-de-incerteza, Accessed on 05 September 2020

KUHN, Thomas S. A ESTRUTURA DAS REVOLUÇÕES CIENTÍFICAS. São Paulo: Perspectiva, 2017.

LIMA, Sonia Regina Albano de. A MÚSICA E OS SENTIMENTOS HUMANOS. Available at:            

https://revistas.pucsp.br/index.php/interdisciplinaridade/article/download/24884/18048, Accessed on 05 September 2020

PARENTE, Alessandra Affortunati Martins (2016) Bússola dos afetos e outras formas políticas. Lacuna: uma revista de psicanálise, São Paulo, n. -1, p. 14, 2016. Available at: <https://revistalacuna.com/2016/05/22/bussola-dos-afetos-e-outras-formas-politicas/>, Accessed on 08 September 2020

SAFATLE, Vladimir (2017) Lacan, revolução e liquidação da transferência: a destituição subjetiva como protocolo da emancipação política. Estudos Avançados, 31. p. 211-212. Available at: http://www.scielo.br/pdf/ea/v31n91/0103-4014-ea-31-91-0211.pdf, Accessed on 08 September 2020

SAFATLE, Vladimir, O CIRCUITO DOS AFETOS– Corpos políticos, desamparo e o fim do indivíduo. Belo Horizonte: Autêntica, 2016.

SPINOZA,  ETICA, Alianza Editora, 2003.

SÉCULO XX PELA HISTÓRIA DA MEDICINA. Available at  http://blog.editoracontexto.com.br/a-historia-do-seculo-xx-pelas-descobertas-da-medicina/, Accessed on 10 September 2020

8 TTORIKACHVILI, Silvia. A CIÊNCIA POR TRÁS DA TOMADA DE DECISÃO - Fazer escolhas é um processo cerebral complexo que, ao contrário do que se pensa, envolve  mais a emoção do que a razão. Available at: http://www.revistaeducacao.com.br/a-ciencia-por-tras-da-tomada-de-decisao/, Accessed on 08 September 2020

20 GRANDES INVENÇÕES E AVANÇOS TECNOLÓGICOS DO SÉCULO 20. Super Interessante: Available at: https://super.abril.com.br/galeria/veja-20-grandes-invencoes-e-avancos-tecnologicos-do-seculo-xx/

 

TERCEIRA E QUARTA REVOLUÇÃO INDUSTRIAL. Available athttps://mundoeducacao.uol.com.br/geografia/terceira-revolucao-industrial.htm, Accessed on 10 September 2020


 

Biography



Celia Caiuby, collaborative attorney, currently attending the Masters Program in Alternative Dispute Resolution at Escola Paulista de Direito, Vice-President of the OAB/RJ Collaborative Practices Commission; member of the OAB/SP Collaborative Practices Commission and of the Brazilian Family Law Institute (IBDFAM) Commission on Family and Technology, coordinator of the Brazilian Institute of Collaborative Practice (IBPC) Commission on Technology and Innovation, member of the International Academy of Collaborative Professionals (IACP) and Research Specialist at Future Law.


Andrea Maia is a proven performer, capable negotiator, and strategic thinker with a solid experience and academic background in law, business and conflict resolution.  Sixteen years of experience in Corporate Law, covering a variety of industries such as Aviation and Banking, either as a Corporate Lawyer in large organizations such as Embraer and Banco Opportunity; or through her own practice, with a variety of large and small clients, including Jornal do Brasil.  Currently works in mediation, negotiation and Alternative Dispute Resolution as a founding partner at FindResolution.