Conflict Resolution and Mediation Kaijus Ervasti

1. Conflicts

There are many definitions of conflict, dispute, conflict resolution and dispute resolution Conflicts can be understood as all kind of disagreement between agents in society Disputes can be understood as juridificated conflicts When a conflict transforms to dispute, it has been called with term ”mobilization of the law” Conflict resolution can be understood as handling and resolving of conflicts and dispute resolution as handling and resolving legal aspects of the conflicts The idea of conflict resolution and mediation is to give problem-based or interest-based and peacefull way to handle conflict so that everyone can live with solution; at best result is a win-win solution Conflicts and Disputes

Social conflict is an interaction between agents (individuals, groups, organizations etc.) where at least one agent perceives incompatibilities between her ‒ thinking/ideas/perceptions ‒ and/or feelings and that of the other agent (or agents) feels restricted by the other’s action Definition of a conflict (Glasl)

”Moore’s Pizza”

2. Conflict resolution

Power Imposing costs to other side Aggressive acts Injurious to relationship Rights Rights are not clear; often different and sometimes contradictory Win-lose results Injurious to relationships Typical procedure is adjudication Interests Interests are needs, desires, concerns, fears and wants Hidden interests; they underlie under positions Reconciling interests is not easy Typical interests –based procedures are negotiation and mediation Three approaches to resolving conflicts (Ury, Brett, Goldberg)

Positions, interests and needs Positions Interests Needs Positions Interests Needs

Negotiation Mediation Evaluation Arbitration Adjudication Cooperative conflict resolution Competitive conflict resolution Parties have control over conflictThird party have control over conflict Basic conflict resolution processes

Administrative bodies and processes There are lot of acitivities and processes in administration which aim is prevent or solve conflicts (e.g. duty to advice) Advisory Services (e.g. in Finland health advisory service, social advisory service) Ombudmans in different areas (e.g. in Finland Parliamentary Ombudsman, Patients Ombudsman, Non-Dicrimination Ombudsman, Equality Ombudsman) Boards in different areas (e.g. in Finland Social Security Appeal Board, Patient Injury Board, Unemployment Security Appeal Board, Assesment Adjustment Board) Mediation systems (e.g. environmental mediation, mediation in health care system, child care mediation?) Settlement promotion activities of administration and courts

Using of ADR has increased in Europe In theoretical level there is a discussion of access to justice, postmodern law, legal pluralism and deliberative democracy Question of ADR in Administrative law is very topic at the moment in Europe There are lot of limits in using ADR in administrative law (human rights, legal protection, public interests, equality) Theoretical understanding of different ADR – mechanism and processes is however low ADR – systems in administrative law are often hybrid conflict resolution systems, which are challenging as well from the perspective of legal theory as form the perspective of conflict theory One way to build and assess conflict resolution systems is DSD Tendencies in conflict resolution

3. Mediation

Mediation is intervention in a conflict of an acceptable third party who has no authoritative decision-making power, who assist the parties voluntary reach a mutually acceptable settlement of the issues in dispute. Mediation is often called as an assisted negotiation, Mediation is a structured process (often with five stages) Mediator uses spesific techniques in mediation (e.g. questioning, brainstorming, caucuses, active listening) The basic model of the mediation is the facilitative interesse- based model of mediation. The main idea of mediation is that the parties can get high quality, individual results according their needs and interests on the contrary to the adjudication which give standard results according the law Basic elements of mediation

Mediation as a system Theoretical models of mediation Applications of mediation Mediation in practice

Models of mediation Problem solving Solution- focused CompromisingEvaluative Process- focused Facilitative, interest-based Human growth Development- focused Transformativ e Narrative HumanisticRestorative Therapeutic Theoretical models of mediation (Ervasti & Nylund)

Mediation Communal applications of mediation Mediation in legal context Mediation in employment relationship Multiparty mediation Other applications of mediation Community mediation School mediation Multicultural mediation Family conferencing Family mediation Victim-offender mediation International peace mediation Mediation in construction conflicts Court mediation Lawyer mediation Settlement promotion in civil procedure Environmental mediation Commercial mediation Labour mediation Workplace mediation Online-mediation Mediation in administrative law Applications of mediation

Problems with mediation in legal context According the pure model of mediation (facilitative) mediator dominates the mediation process but the parties dominate subject matter of the conflict and the resolution of the conflict In legal context (e.g. court - annexed mediation) mediation systems are often in practice hybrid systems; there are activities like evaluation and compromising In many western countries judges promote settlement in court process; it is not mediation In some countries there are mandatory mediation systems In hybrid conflict resolution systems ethical principles of mediation do not realize and on the other hand people get not even formal legal protection; it can be semi-legal system

Legal education in the future ”For law students to focus exclusively on the litigation process is like medical students studying only surgery as a means of curing illness. Of course, that is not what medical students do. They study an extensive range of subjects for the treatment and cure of illnesses. Law students too must extend their focus beyond the litigation arena to a greater understanding of problem-solving approaches. The legal community’s failure to do this for so long may be part of the reason for so much congestion in the civil justice system.” (Jaqueline M. Nolan-Haley 2001)