My idea on systemic mediation

Mediation is a “systemic way” for the settlement of disputes (systemic mediation), as opposed to the armed conflict or those in the courtroom, which are the “linear solutions” (i.e., based on the “cause and effect “ principle) to the respective types of conflicts[1].

This seems obvious enough for the first case.

When people hate another one – or, rather, they are induced to hate it – there is an enemy. The presence and the fear of an enemy is a dangerous situation (“cause”) , that triggers a reaction. If one uses the violence to deal such a situation (resolution methodology), the only possible solution is to eliminate the enemy physically (“effect”): this inevitably leads to death and destruction, whenever one sees a person who is qualified as an enemy. In this context, people are not free, as they have no choice about how to behave. Recourse to war does not even assess whether there is indeed an enemy to be feared and if the interaction with this subject can lead to completely different results .

Let’s see what happens when we resort to a trial in a court, in order to resolve a dispute in civil and commercial matters.

The situation at issue in the dispute ( the supply of a commodity does not conform to the contract, the marital betrayal , the clash between two vehicles , … ) is the “cause”.

The process (methodology of solution ) allows litigants to represent a particular case to a judge and ask him to declare what “effect” it follows up under the law applicable to the same case.

The entire mechanism is, however, not very efficient, since it is necessarily based on many simplifications and approximations .

First, lawyers should seek to identify the facts relevant to the process, omitting all the other information on the facts that maybe very important for the parties, but irrelevant to the legal system.

Second, lawyers can apply to the court only remedies allowed under the law.

Based on these initial simplifications, the trial requires to put the judge in a position to know the situation at issue in the dispute. This occurs during the preparatory stage, through document exhibition, technical expertise and witnesses. However, as a result of the preparatory stage, there is often a situation that is never fully conform to reality. Maybe it has not been possible to produce all relevant documents, because they were lost or declared not acceptable by the judge, maybe the depositions of the witnesses did not allow a faithful reconstruction of the situation, … Anyway, the court shall decide on the basis of this “virtual” reality , often called the “reality of the trial”.

Following these steps, the dispute (“cause”) becomes crystallized in the judge’s eyes. In these conditions, he decides about it.

In fact, the magistrate merely states what king of legal “effects” are produced by the “cause”, applying them to parties. In this last phase, the eventual confusion in the relevant legal system comes to play a fundamental rule: the more obscure and uncertain it is, the greater will is in judge’s hands.

In this context, certainly the parties are never free to choose the solution on how to get out of the conflict, because it is imposed on them.

So clarified that the trial before a judge is a “linear method” for the solution of civil and commercial litigation, let’s try to understand why it is an inappropriate instrument.

Generally speaking, in the world of science is emerging awareness that the “linear approach” is wrong to deal with “complex systems”.

The “cause and effect” principle is valid to solve a simple case, such as a chemical reaction. For example, it works very well if you have to establish what consequences arising from a temperature change in a liquid contained in a tank. The result is predictable and measurable with accuracy. The same, however, does not apply at all when it comes to understand the results of a temperature change in the earth atmosphere or the results of an interest rate rise applied to a particular currency in the context of the global economy. In these situations, the “cause and effect” principle does not work, because “complex systems” operate according to different mechanisms, dictated by their own characteristics.

“Complex systems” have at least the following aspects[2]:

  • high number of elements involved;
  • non-linear interactions between the elements (even knowing the inputs into the system, one can’t know its outputs);
  • presence of negative and positive feed-back, released by any individual elements, as a result of the inputs into the system and subsequent reactions;
  • network structure, which binds together the elements involved in the system;
  • dynamicity ;
  • opening ;
  • creativity and innovation ;
  • unpredictability (in the long term, you do not know what effect can determine the inputs into the system, because of the influence produced by the feed-backs released from any individual elements);
  • non- controllability;
  • structuring of hierarchical levels of the elements involved;
  • delayed effects (a single input exerts different effects in the short, medium and long term).

Surely two enemy populations represent a “complex system”. However, it seems correctly to recognize the presence of a “complex system” even among the people involved in civil and commercial litigation .

Consequently both conflicts are not properly solved through the “linear mode”.

Thanks to its flexibility , mediation appears more appropriate to manage such conflicts. At the same time, the mediator must always be aware that he is working not with simple individuals, but with individuals embedded in a “complex system”.

To act effectively, the mediator must be able to provide the parties with a suitable environment , where they are given the opportunity to draw closer and begin to cooperate.

The same results of mediation are themselves elastic, since the content of any agreement (which is still a success) can be reduced only so much to some specific aspects of the conflict as a solution globally.

The mediator’s role is so central, but not absorbent , as equally important is that done by the other parties involved in the conflict (the so-called “stakeholders”), who can physically sit around the mediation table or can conditioning the negotiation from the outside.

The influence of the mediator depends mainly on the quality of the relationship that is able to establish with parties. Neuro-linguistic programming techniques (NLP) are very important tools for his/her work, giving the mediator the power to communicate adequately with parties and to help them in recognizing the blocks that prevent from proceeding in their negotiated settlement of the dispute . Nevertheless, the mediator must avoid any abuse, which ultimately would also be useless. Any his intervention on parties represents nothing more than placing an input in the dispute “ complex system” , whose evolution is unpredictable and can’t be controlled in the long term. As a result , the use of NLP techniques may be appropriate , if the mediator tries to get the parties a short-term outcome, but useless when aimed at achieving an effect on a longer time scale in the negotiation.

The mediator is certainly empowered to make suggestions about the conduct of mediation, while it seems much more limited and variable to provide indications of a substantial nature, alleging that the actual content of a possible agreement .

Mediation is an activity at the same time supple and structured, which often starts in a moment well prior to the first joint-meetings between parties. As a preliminary to this moment, the mediator can have separate meetings with parties and other stakeholders, in order to gradually create the conditions for promoting the acceptance of mediation in all those who are involved. This requires a considerable freedom of action for the mediator, who must only worry not to affect parties’ perception of his/her neutrality.

Moreover, to be effective the mediation shall take due account of the specific peculiarities of each individual conflict. This means that mediator has to pay attention to various elements. First, the causes and the dynamics of conflict. Second, the positions and interests of the involved parties and stakeholders, but also to the consistency with which they all participate in the mediation. Third, the mandatory rules posed by legal systems relevant to the parties involved in the dispute.

In view of the above, the practice of mediation is highly specialized activity (something not yet fully recognized in Italy, as a result of lawyers bars lobbing on Italian Parliament). His/her high professionalism firstly allows the  mediator to act in a useful way to made parties trusting in the mediation and feeling it as a real way to sort from the conflict . In addition, he/she has the skills necessary to encourage interaction between parties, in order to move them into a generative collaboration. A prerequisite for the success of such an action is mediator ability to listen and dialogue, which does not arise at all from mere improvisation. A good mediator is also concerned that everyone sitting around the table can negotiate in an informed way. In such conditions, even when he/she is knowledgeable, patient , impartial and discreet, the mediator has a strong ability to help the negotiating parties to reach an agreement .

Despite this, the mediator is likely to fail, if he/she is not adequately supported in the environment where he/she operates. In other words, if – for whatever reason – the mediation is being boycotted or opposed by significant components of civil society (like most of lawyers in Italy), in which parties live or by whom they are influenced, litigants hardly accept to give during the mediation itself or they participate without conviction, despite all mediator’s efforts. The negative consequences of such a situation, however, strike only litigants and not those who boycotted the mediation instead. In the case of disputes in civil and commercial matters, boycotting mediation apparently damages personal and financial interests of the litigants only. In the reality, recent studies have revealed that the entire society suffers high costs because the non-use of mediation .

In light of the above, the task of the mediator is to facilitate communication and dialogue between parties, moving them away from a blocked negotiate on their initial positions and bringing them to consider their real interests at stake. Shifting litigants’ attention to this last target, the same way to negotiate the conflict evolves significantly: it becomes similar to a negotiation between parties that intend to proceed to the conclusion of any personal or business relationship, without having any prior contact.

When lawyers assist litigants during a mediation, the first ones must consider the particular contest in which they are requested to act. In fact, it’s totally useless a lawyer who masterfully defends his/her client positions with the best dialectical artifices, as it would be in front to the court: the result is only to sink the negotiation. On the contrary, in mediation parties need good legal advisors, who helps to better assess the situation and the evolution of the negotiation, before, and to draw properly the possible settlement, then.

[1] Some works of mine on mediation are the following: “Mediation e processo civile”, in Contratto e Impresa / Europa , 1, 2002, pag.97 (my proposal to introduce mediation in Italy – where it was unknown – on European Union Paris convention results. I examine how mediation could be compatible with civil code principles); “Brevi note al modello di legge uniforme UNCITRAL sulla conciliazione/mediazione delle controversie commerciali internazionali”, in Contratto e Impresa / Europa , 2, 2003, p. 1341 (commentary on UNCITRAL model law on mediation); “Le controversie tra sub-fornitori e committenti” nonché “I conflitti condominiali”, in AA.VV., “ADR: La negoziazione assistita nei conflitti economici”, Milano, 2005 (ISBN 88-8363-708-9, one of the first Italian books on ADR: mediation, mini-trial, neutral evaluation and more); “I sistemi ADR nell’ottica del legislatore comunitario” in Contratto e Impresa / Europa, I, 2009, p. 59 (a first deep commentary on European Union directive on mediation); “La direttiva UE sulla mediazione”, “Le raccomandazioni CE sugli organismi per la conciliazione delle controversie individuali di consumo”, “Gli Organismi di mediazione” nonché “La deontologia per il mediatore” in AA.VV., “La mediazione nelle liti civili e commerciali”, Milano, 2010 (ISBN 88-14-16006-6: a compressive book on European and Italian legislation on mediation); “Contributo al dibattito sulla mediazione civile e commerciale“, in Contratto e Impresa / Europa, n. 1, 2011, p. 97 (it’s about the taught discussions and reactions arising from mediation introduction in Italy: first I explain what mediation is and then I defense it showing that mediation adversary thesis have no juridical ground); “La risoluzione del Parlamento Europeo sull’attuazione della direttiva 52/2008/CE sulla mediazione“, in La Mediazione – proposta in mediazione, 3 – 2012, p. 118 (my commentary on European Parliament resolution about the receptions of EC mediation directive in member States); “U.N. guideline for effective mediation”, in Contratto e Impresa / Europa, 1, 2013, p.419; “ADR and ODR for consumer disputes in UE law, in Contratto e Impresa / Europa, 2, 2013.

[2] A. GANDOLFI, Formicai, imperi e cervelli – Introduzione alla scienza delle complessità, Torino, 1999.