In view of this article’s thematic, which concerns the management of labor conflicts, we will focus in particular on the legal institute of mediation and its effectiveness.
Mediation is a non-adversarial conflict resolution method, which has been installed in several countries as an effective institute of self-composition, both in the private and judicial spheres, which advocates a worldwide trend towards the pacification of disputes.
At the judicial level in Brazil, CNJ Resolution 125/2010 regulated mediation as an effective instrument for social pacification and the prevention of litigation and instituted the National Judicial Policy for conflict resolution. Additionally, Mediation Law 13.140 / 2015 defines mediation in the sole paragraph of art. 1st in the following terms “Mediation is considered to be the technical activity performed by an impartial third party without decision-making power, which, chosen or accepted by the parties, assists and encourages them to identify or develop consensual solutions to the dispute”.
A professionally trained mediator acts technically as a facilitator, seeking to neutralize the emotion of the parties, facilitating the solution of the dispute, so that the parties can find creative and productive solutions to deal with the impasse that surround them.
And in the resulting context, Luiz Fernando Do Vale de Almeida Guilherme teaches that mediation is based on the implementation of the art of language to give life to or recreate relationship between people
Mediation is based on the effectiveness of the art of language to enable birth with the lining of a new relationship, or to reconnect and recreate communication between people. The mediator is the third part that, observed confidentiality and voluntary mechanisms regarding litigation management, aims to neutralize the conflictual relationship, operationalizing the dialogue between people until the construction of a solution
In order to explain, the main characteristics of mediation are briefly complemented: Autonomy of will, so that extrajudicial mediation contemplates voluntariness aiming at mutual gains, Confidentiality, since all deals are confidential, except for criminal imputation, which must be informed to the judiciary, Code of conduct, insofar as the rules of good coexistence are proposed by the mediator and agreed between the parties at the first meeting, celerity, the main differential in relation to the other methods, since the majority Mediated conflicts have a short and medium duration, well below the arbitration procedure and the judicial process. Co-mediation, therefore, depending on the complexity of the conflict, it is recommended that two mediators act, Appreciation of the lawyer, considering that the term of the agreement formed by the parties and the mediator, prepared with the effective contribution of the lawyer, is an extrajudicial executive title and the Cost, proportionally more advantageous compared to arbitration and / or judicial demand.
It also emerges that mediation goes beyond the legal fact, has the emotional bias intrinsic to the nature of the conflict, and it is through techniques that the facilitating third party leads the procedure and the parties to resolve the dispute.
In summary, in mediation the parties assume responsibility and power to manage their own conflicts. Therefore, they authorize a mediator, an impartial and neutral third party to conduct the mediation procedure, different from the state jurisdiction where power is delegated to those invested with their jurisdictional functions and the parties do not participate and are not responsible for the decision of that third party granted by them.
The pacification of labor conflicts through private jurisdiction must be covered by good practices, trust and good faith that also depend, in addition to the criteria of the arbitration procedure and the requirements of the law, of a cultural change regarding conflict, which should be increasingly preventively treated.
With regard to labor conflicts, management applies to the Human Resources area, so that there is a guarantee of the proper functioning of the workforce, and the achievement of a good working environment.
In addition, the Human Resources department aims to preserve the well-being of employees, considering that the ecosystem of the work environment, is composed of heterogeneous people or groups in the social, economic and cultural component within an organization.
In turn, a labor conflict can be understood as the differences that occur between different people or groups of people who belong to the same organization. With the interaction and coexistence of these groups it is inevitable that, over time, conflicts will occur within a company, as it is constantly evolving and issues such as changes made or personal relationships in everyday life can cause different points of view.
It is known that within an organization, there are a wide variety of labor disputes, depending on their nature. Differences between coworkers, excessive demands, managers’ lack of communication and transparency, problems with workers’ functions and with organization chart or the lack of productivity for different reasons, are just some of the conflicts that may arise on a company’s organizational web.
These conflicts can be extremely harmful for the organization, which advance beyond a future labor passive, impact on the company’s image, productivity and people’s lives., Therefore, the vital importance of accepting the appropriate instruments for preventive labor conflict management.
Based on all of the above, let us consider that in contemporary society most of the day people remain in constant work relationships in organizations, either face-to-face or home-office, independently or outsourced, building interpersonal or inter-business relationships. It is known that in the work environment, numerous discussions emanate, lack of communication, hostile environment, competition, power dispute, divergent expectations, in short, diverse and conflicting interests.
It must be borne in mind that conflicts can have extremely negative consequences for the organization if they are not detected in time and managed effectively. However, an adequate and objective management of conflicts favors the development of the company and its workers. Therefore, the management and administration of companies should not look away when these types of problems are generated, but it is essential to seek quick and effective preventive solutions.
In another way, the Law appeared to regulate rights and obligations in the relationships and to have the operational representation to generate peace and harmony, while the Judiciary effectively welcomes this conflicting society, punctually to sentence after the judgment in the specific case, to do res judicata and not effectively put an end to the conflict.
It appears that, in the labor sphere, even if the new provisions of the Labor Reform of 2017 are operated, which made the use of the appropriate methods of conflict resolution more flexible, the absolute unavoidable rights of the employee must be considered before any self-composition. in particular, constitutional rights are protected under the terms of Article 7 of the 1988 Constitution of the Federative Republic of Brazil.
On this path, however, the path of the preventive model to conflict management must be permeated mainly. The instrumentalization of mediation during the working relationship, with active listening and assertive communication, constitutes a modern and effective mechanism to meet the expectations in observation of the Maslow Pyramid, to meet the needs of modern man in order to provide him with security, love, recognition , self-esteem and personal development and enable one to have a leading role and responsibility before one’s conflicts, whether in one’s personal or professional life.
ELISAVETSKY, Alberto I and ALMIRÓN, Daniela P. La Mediación a La Luz de Las Nuevas Tecnologías: Buenos Aires: Erreius, 2019.
LAPORTA, Celeida M. Celentano; SALES, Sabrina Nagib e Col. Mediação de Conflitos na Prática: Estudos de Casos Concretos. Rio de Janeiro: Lumen Juris, 2019.
GUILHERME, Luiz Fernando do Vale de Almeida. Manual dos MESCS: meios extrajudiciais de solução de conflitos. Barueri: Manole, 2016.
MASLOW, A. H. A Theory of Human Motivation. 1943. http://psychclassics.yorku.ca/Maslow/motivation.htm. Acesso em 10 mai. 2020.
WARAT, Luis Aberto. O ofício do mediador. Vol. 1, Florianópolis, Habitus,2001.
From Arnold W. Zeman's blog>Regular readers of this blog know that I practise mediation using the transformative model. (For more information, please see the tag, transformative mediation.) The most prominent...By Arnold W. Zeman