Conflict Management Strategies in Mediation

Author:Claudiu Ignat
Position:Lecturer Ph. D.
Pages:185-191
SUMMARY

Strategies for managing the ways to approach, manage and resolve conflict are, without a doubt, truly advanced techniques for practical approach to conflict. By applying these strategies, conflicts can be mediated that have become over time crises and the consumption of human and emotional resources have already reached a very high level.

 
CONTENT
Conflict Management Strategies in Mediation 185
PRIVATE LAW
Conflict Management Strategies in Mediation*
Claudiu Ignat, Lecturer Ph. D.
Abstract
Strategies for managing the ways to approach, manage and resolve conflict are,
without a doubt, truly advanced techniques for practical approach to conflict. By
applying these strategies, conflicts can be mediated that have become over time crises and
the consumption of human and emotional resources have already reached a very high
level.
Keywords: strategies, admission and settlement, mediation, communication,
negotiation, options, needs, interests, etc.
Introduction
"The conflict, a social contextual phenomenon determined by the clash between the
interests, concepts, needs or pride of some individuals or groups manifests when they
come into contact and have different or apparently different objectives."1
Disputes or conflicts as they are also called by scholars in the field are a
constant presence in human relations and are found in all human societies, both
over time and at present. The conflict, above all, is a manifestation of the lack of
communication between two or more persons. It can take the form of clashes of
ideas or interests, as well as the way of accessing resources or how they are
distributed, regardless of their nature.
All these forms or generating factors that lead to the emergence of a conflict,
can lead to different forms of solving them, from the most peaceful to the most
violent ones, depending on the participants in the conflict, according to their
interests and needs, as well as their personality.
* This paper has been presented at the 5th Annual International Conference on Law and
Administrative Justice from an Interdisciplinary Perspective, 23rd-25th November 2018, Bucharest,
Romania.
1 Zeno Şuştac, Claudiu Ignat, Ghid de Negociere, Bucureşti, Editura Universitară, 2010, p.123..
Law Review vol. X, issue 2, July-Decembre 2019, pp. 185-191
186 CLAUDIU IGNAT
Understanding the conflict, we can think of a strategy by which we can
manage the ways to approach, manage and resolve the conflict until it is
resolved. In most conflicts or disputes, the parties involved have the possibility
and have a variety of alternative means of conflict resolution, and these
procedures can vary considerably by the way they approach and address the
conflict and this can lead to results. different that can be tangible (an agreement)
or intangible (emotional stability).
From a sociological point of view, the conflict can also be defined as a
consensus report when the interaction takes place between the social, individual
and collective subjects, and the mode of interaction is characterized by the
divergence or convergence of those involved in the dispute.2
Also, the original types of the conflict or the generating factors of the
incipient conflict, of the conflict of a social nature, are always factors of an
objective, subjective or contingent nature. Later, as the conflict increases, these
factors multiply becoming relational, technical, economic, including legal ones,
when the conflict emerges from the latent state and the parties involved decide to
resolve it regardless of the method chosen, becoming a dispute.
Beatrice Blohorn-Brenneur states that we must always distinguish between a
personal conflict and a legal dispute (litigation procedure), but we must not
neglect the fact that the personal side is the unseen part of the conflict and that
this is the engine that generates new disputes, inside the conflict itself3.
Mediation
Mediation is one of the most used methods of managing and solving
conflicts, both in the early stages and those of the manifest type, in which the
parties have the opportunity to choose their own end of the conflict, depending
on the interest and the wants. Their rights without violating their fundamental
rights or guaranteed by law.
Mediation is the way in which the parties involved in the conflict are
empowered by themselves with the decision-making power over the purpose of
extinguishing it4.
This possibility of the parties involved in the conflict to decide by themselves
on the outcome and the result directly leads to personal development, to the
restoration of communication and mutual understanding, leading to the
development of inter-human relations in general and the re-establishment of
2 Zeno Daniel Şuştac, Filosofia Medierii.O abordare filosofică a sistemelor ADR, Bucureşti,
Universul Juridic, 2013, p. 23.
3 Beatrice Blohorn- Brenneur, Medierea Pentru Toţi. Teoria şi practica medierii, Bucureşti,
Editura Universitară, 2014, p. 18.
4 Claudiu Ignat, Zeno Şuştac, Cristi Dănileţ, Ghid de Mediere, Bucureşti, editura Universitară,
2009, p. 16.
Conflict Management Strategies in Mediation 187
personal ties in particular, but on a much solid basis generated by the mutual
trust that they give each other5.
We can conclude that mediation is primarily focused on the parties involved
in the dispute, their role being active in choosing ways to resolve the conflict and
that the emotional side of the conflict is not neglected, on the contrary, mediation
tries to re-establish personal relationships by eliminating all emotional factors.
negatives that may influence existing or repositioned relationships in the future.
Starting from this premise it is natural that the ways of managing, managing
and resolving the conflict start primarily from the individual, extrapolating each
strategy to its needs and interests. From a different angle, to accept a different
point of view and that his rights can end where he can start another right,
regardless of who he belongs to.
Acknowledging the conflict
A first strategy is to make the parties aware of the existence of the conflict, by
identifying the conflict, their way of getting involved in the conflict, as well as
assuming and accepting the consequences that can occur as a result of not
resolving it amicably or not at all6.
As long as the conflict is not acknowledged by the parties or is not assumed,
they will not be involved in the resolution of the dispute because, from their
point of view, the conflict does not exist, or the consequences of its non-
resolution can have important repercussions on them.
Identification of the parties as well as the parties affected by the conflict
Since there may be several parties in the conflict and they are not very well
organized or visible, before the data is collected, the main actors in the conflict
must be identified or rather the persons who are the originator of the conflict or
were at the origin of the conflict.
In most cases, the parties to the conflict are not the ones who initiated the
conflict, it being taken over or conjunctured, they were involved in the conflict by
harming the emotions, the interests of the needs or even the righting of them.
Not always the number of the parties to the conflict is predictable, because,
in a normal way, the dispute also affects another category of persons outside the
conflict, involuntarily involved, affected, as well as the possible consequences as
a result of the resolution or continuation of the dispute. persons can be
represented by family members, colleagues or business partners, persons who,
even if they are not directly involved, can, with the help of mediation, become a
determinant factor in solving it, given the close relationship with the decision-
makers in the conflict.
5 Idem p. 17.
6 Zeno Şuştac, Claudiu Ignat, Ghid de Negociere, Bucureşti, Editura Universitară, 2010,
pag.124
188 CLAUDIU IGNAT
Analysis of the historical background of the conflict
The mediation professional, in this case the mediator, must carefully analyze
the extent, as well as the manifestations of the conflict related to the unit of time,
in order to obtain essential information about its intensity. All these data, the
intensity and the manifestations more or more often. rare of the conflict, can lead
to the identification of methods to mitigate the conflict and to restore the
communication channel between the parties involved so that the final result is a
positive one.
The older the conflict and the more frequent manifestations, the more
involved the parties are and also more reluctant to find solutions in solving it.
The emotional factor (through the negative emotions) is a major and conflict
generating element, consequently the negative emotions are involved as the
chances of conflict resolution decrease.
An important element in conflict management, in a positive way, of course,
showing the parties' willingness to solve the conflict is represented by previous
attempts to resolve it, but in the absence of a professional they have not
identified effective ways to approach a dispute settlement agreement7.
Also through this analysis, that of the antiquity and the historic background
of the conflict, we can analyze whether the parties involved want to maintain the
conflict, as they are not interested in solving it, which can result from the
manifestations of will and the crises they have caused over time perpetuating the
conflict artificially8.
It is relevant that the parties to the conflict have voluntarily or involuntarily
invested resources in supporting or resolving the conflict, resources that may
consist of the human, emotional or material factor, having an importance directly
proportional to the amount of resources invested, and under the conditions in
which the engagement they are important, the magnitude that the parties give to
the conflict is a very important one, hence the effective impossibility of resolving
the conflict9.
Communication
Communication is always an important and central component of
negotiation in the mediation process.
"The quantity, form and adequacy of the communication as well as the identities and
qualities of the communicators are usually strong influences on the outcome of the
negotiations."10
7 Idem, pag. 125
8 Idem, p. 126
9 Idem, p. 127
10 Cristopher W. Moore, The Mediation Process, Ediţia a III-a revizuită, USA, 2003, p. 185,
op. cit.
Conflict Management Strategies in Mediation 189
The hypothesis in which the parties speak to each other is sufficient to
resolve the conflict is not always a reliable hypothesis, as most of the parties'
interests and needs remain hidden, so that the mediator must and must find
other means of communication to accurately find out what are the parties'
wishes, their importance as well as the effective ways of resolving the dispute.
The mediator must be very careful about the way the messages are
transmitted and must ensure that they have been received and interpreted
correctly. A concrete analysis of the person receiving the messages must be
made, meaning that it is the decision-making authority, if he is psychologically
prepared to listen to the message. If the message is to be transmitted to a group
of people, the moderate persons in the group must be accurately analyzed and
identified, if there is a bureaucratic or psychological hierarchy in the group, as
well as the protocol to be followed in order to transmit the message11.
This elaborated analysis can be made more accurately by observing the non-
verbal communication of the persons involved in the communication process,
namely the gestures, the visual contact and the outfit, as well as all the elements
related to the space proxy and how the parties understand to relate to it12.
The role of the physical space and the placement of the parties in the
communication process is vital and its ignorance can sometimes lead to the
blocking of the communication dynamics and as a result it can amplify the
conflict.
Physical space and communication can also have a cultural approach,
cultural influences on emotions as well as their way of dealing with them, wrong
perceptions, and stereotypes, inevitably lead to difficulties of nature that prevent
the establishment of effective strategies for solving I disputed13.
It is forbidden in the mediation procedure to use communication as an
element of social influence or information manipulation, through the use of
manipulative practices, rumor, intoxication or misinformation, even if the
intention is proactive and positive, because they will negatively influence the
possibility of the parties. to resolve their dispute on the basis of accepted
objective and unanimous criteria. The manipulation and misinformation can
induce in the mind of the conflicting parties that certain situations are real when
in reality they are false risking that the subsequent escalation of the conflict will
be a direct consequence of the use of these techniques14.
11 Idem, p. 126
12 Freddie Strasser, Paul Randolph, MediatIon, A Psychological Insight into Conflict
resolution, Ed. Continuum, London, 2004
13 Cristopher W. Moore, The Mediation Process, Ediţia a III-a revizuită, USA, 2003, p.193
14 Laura Maruşca, Comunicare şi Conflict, Managementul comunicării în soluţionarea
amiabilă a Conflictelor, Bucureşti, Tritonic Publishing, 2010, p. 34;
190 CLAUDIU IGNAT
Negotiating and establishing bids
The effective mediator, within the mediation process, emphasizes each time
by helping the parties to focus primarily on interests and not on their positions
adopted during the negotiation.
The interests of the parties during the negotiation can be multiple, and a
closer examination of the motivations is needed, thus identifying the
fundamental needs that can reveal common interests that can be compatible and
used in the negotiation.
Of major interest is the use of objective criteria in the negotiation because
decisions based on will and influenced by emotions are not always a criterion
compatible with a lasting understanding, so the subjective elements represented
by pathos and ethos, although important should not be considered when
establishing and especially when accepting the negotiated agreement within the
mediation procedure15.
Educating the parties and developing the awareness of the parties of the
need for multiple options in order to extend the possibilities of choosing an
agreement from a multitude of offers. The wider the range of options, the more
exponentially increases the possibility for the parties to find an optimal variant of
settlement of the conflict16.
The mediator can and should reduce the engagement of the mediation
parties involved in the negotiation process only to positions or only to
alternatives, exceeding the emotional stage of the negotiation, involving the
parties in generating options using positional negotiation based exclusively on
immediate interests and needs.
Always, the evaluation of the options for the agreement must be done by
reviewing the interests of the parties and by evaluating how the interests can be
fulfilled based on the options available on the negotiating table, as well as by
evaluating the costs and benefits of selecting options17.
Understanding the conflict and reaching an agreement
Reaching an agreement as a result of negotiation during the mediation
process must firstly be made by the upward convergence of the parties' positions
throughout the negotiation, by final jumps to package agreements, the
development of a consensual formula or by establishing procedural means. to
reach a definitive agreement.
In order to crystallize the mediation agreement negotiated within the
mediation process, the mediator must identify with the parties the procedural
steps to be followed in order to make the operative agreement, establish an
15 Zeno Şuştac, Claudiu Ignat, Ghid de Negociere, Bucureşti, Editura Universitară, 2010, p. 25 ;
16 Zeno Şuştac, Claudiu Ignat, Ghid de Negociere, Bucureşti, Editura Universitară, 2010, p. 25 ;
17 Idem, p. 73
Conflict Management Strategies in Mediation 191
evaluation method and a procedure for monitoring the implementation of the
mediation agreement, as well as the formalization. agreement with the creation
of a constraint and commitment mechanism in order to comply with it.
In conclusion, we can state that the strategies for addressing, managing and
resolving a conflict include multidisciplinary techniques and methods and the
interdisciplinarity that the professional, in this case the mediator, must show,
applies to them so that the conflict is diminished or eliminated, by eliminating
the mere generating factors of the conflict, to restore the communication between
the parties at least at the level it was prior to the conflict, if it cannot be improved,
to generate multiple options and to help the parties to negotiate knowingly using
objective criteria and based on their needs and interests.
Bibliography:
1. Alina Gorghiu, N. B. C. Stănescu, Manuela S., Mihai M., Ion D., Medierea.
Oxigen pentru afaceri, Bucureşti, Universul Juridic, 2011;
2. Cristopher W. Moore, The Mediation Process, Ediţia a III-a revizuită,
USA, 2003;
3. Beatrice Blohorn- Brenneur, Medierea Pentru Toţi. Teoria şi practica
medierii, Bucureşti, Editura Universitară, 2014;
4. Claudiu Ignat, Zeno Şuştac, Cristi Dănileţ, Ghid de Mediere, Bucureşti,
editura Universitară, 2009;
5. Freddie Strasser, Paul Randolph, Mediaton, A Psychological Insight into
Conflict resolution, Ed. Continuum, London, 2004;
6. Laura Maruşca, Comunicare şi Conflict, Managementul comunicării în
soluţionarea amiabilă a Conflictelor, Bucureşti, Tritonic Publishing, 2010;
7. Zeno Şuştac, Claudiu Ignat, Ghid de Negociere, Bucureşti, Editura
Universitară, 2010 ;
8. Zeno Daniel Şuştac, Filosofia Medierii. O abordare filosofică a sistemelor
ADR, Bucureşti, Universul Juridic, 2013;
9. Law 192/2006, as further amended, regarding the exercise of the mediator
profession.