“A MULTI-DISCLIPLINARY APPROACH TO CARING IN CONFLICT RESOLUTION: MEDIATION AND COLLABORATIVE PRACTICES”

Summary: Objective of article. Caring. Multi-disciplinary practice. Conflict. Appropriate means. Mediation. Caring for the individual. Collaborative Practices. Emancipating effect. Change in professional attitude. Subjects as protagonists.

Man is the being whose project is to be God. Jean Paul Sartre.

“I like being human because I perceive that the construction of my presence in the world, which is a construction involving others and is subject to genetic factors that I have inherited and to socio-cultural and historical factors, is nonetheless a presence whose construction has much to do with myself. (...)

The fact that I perceive myself to be in the world, with the world, with others, brings with it a sense of “being-with” constitutive of who I am that makes my relationship to the world essential to who I am.  In other words, my presence in the world is not so much of someone who is merely adapting to something “external”, but of someone who is inserted as if belonging essentially to it.  It’s the position of one who struggles to become the subject and maker of history and not simply a passive, disconnected object.” Paulo Freire, in Pedagogy of Freedom[2]

  The objective of this article is to explore how multi-disciplinary practice is indispensable, particularly in the area of Family Law, for treating individuals with respect and commitment, accepting beings for who they are, three-dimensional and in constant development, and protagonists of their own life stories. We seek to show how this occurs in mediation and also in Collaborative Practices, which rely on the work of multi-professional teams. One of its fundamental principles is the understanding of justice as the exercising of all virtues for citizens, as defined by Aristotle.

The present investigation draws on a larger study entitled “the Caring Project” which, since 2008 through the work “Caring as a juridical value”, investigates Caring and its relationships with Law in multi- and inter-disciplinary form, embracing this as a principle which goes beyond the bounds of the legal sphere, posing the challenge of upholding “the ethics of co-responsibility, grounded in mutual support and citizenship”, as aptly defined by Tania da Silva Pereira[3].

Within the ideal of inviting individuals to be the subjects of their own history lies a deep concern in caring for others. “Caring is the opposite of neglect and carelessness. To care is more than a mere act; it is rather an attitude. Therefore, it encompasses more than a moment of awareness, of zeal and of devotion. It represents an attitude of activity, of concern, of responsibility and of an affective involvement with the other”, according to the terminology adopted by Leonardo Boff [4].

Thus, it is clear that multi-disciplinary practice arises as part of this search for care, from the desire to find a praxis that can encourage the individual to find their own path to well-being, when seeking the professional counsel of an attorney in times of crisis to resolve their problems.

Once upon a time there was an attorney who, armed with their powers of mandate, would then represent the individual and put an end to the problem dogging them. The resolution (abracadabra!) would be found in a judgment that would end the legal dispute, condemning the loser to meeting obligations plus payment of legal costs and attorney’s fees, making the winner and their attorney happy ever after. Also, once upon a time, there was a therapist locked in their office inertly witnessing the suffering of their patients, individuals with declining health, unbalanced, emotionally collapsing, spending money on interminable legal proceedings without achieving outcomes that may bring them some relief. Or, worse still, witnessing clients reach the end of a lawsuit without addressing the matter in dispute, which consequently lingered on.

 In the 21st Century, we continue to experience first-hand that in practice, theory is different, and hence the need to find other ways – that are more beneficial, productive and cost-effective from both an emotional and financial standpoint – of dealing with the human conflicts that are brought to offices, courtrooms and therapists’ offices.  

As accurately noted by Mara Caffé, “Notwithstanding the specificities of Psychoanalysis and of Law, we can state that both areas entail a certain procedure to handle conflicts, or rather, a certain processing of conflicts, despite having different start and end points. Individuals that resort to a court of law or seek psychoanalytic therapy, adopting the most commonly used parlance in each case, do so with the expectation of encountering a solution to their disputes. Therefore, the notion of conflict is highly central to both Psychoanalysis and Law, largely defining the subject matter of these practices: psychic conflict and legal conflict, respectively”[5].

Judges now recognize that their role needs to change in order to serve society, by “assimilating the scientific contribution from sociology and psychology. Less judge, more social peacekeeper and conciliator of interests in real or virtual conflict, judges in the third millennium should adopt the attributes of a good mediator”, as advocated by Pedro Caetano de Carvalho[6].

And perhaps these attributes are valuable not only for the purposes of passing judgment on demands, but also for better referral of these demands to the most adequate forum of conflict resolution. Indeed, the judge need not necessarily be prepared to handle the conflict himself but must be able to deploy the multi-disciplinary team available to properly handle the dispute in hand.

The awareness of judges that it no longer suffices to simply pass a judgment that brings a close to the lawsuit yet fails to transform the conflict, represents a major step forward for society in that its helps promote the search for alternative approaches, which can lead to truly effective outcomes.

Society and the Legal profession are no longer satisfied with these “Pyrrhic victories”. Not least because if the conflict is not resolved, besides prevailing in the life of those involved, it ends up back in Court as a so-called “child process”, a suit spawned from the original which was adjudicated but whose underlying cause was not dealt with effectively.

As Eliana Nazareth noted, “The term “solution of the conflict” is used at the end of the case, but the judicial judgment only concludes the “intramural” process, within the confined ambit of that snippet of time-space of an unlimited whole, of a timeframe which is often more mythical than chronological; of a space that is more symbolic than real. Because it is a time-space of emotions. Time related to unraveled projects of failed lives, of robbed hopes, to which the judicial solution cannot associate temporal bounds. Humans are in a tragic situation: action and thought do not coincide”[7] and, in this situation, the care derived from the support of multi-disciplinary practice is lacking.

 It is also important to note that “the contemporary family has undergone significant changes, evolving from the model of the patriarchic family to a modern family model, and, finally, through to the contemporary or post-modern family model”[8]. And, as aptly pointed out by Roberta Tupinambá, “As a consequence, amid this new profile of the contemporary family, the legal order cannot ignore so many defining changes. And it did not. The architecture shifted to a broader context in which the individual, the person, became a focus as the central figure of the legal order, an effect of major world events, including the two great wars”[9]. 

Moreover, particularly in the field of Family Law, we see a situation where the legislation cannot keep up with the social evolution of families, calling for the use of alternative techniques for the resolution and prevention of litigation, where “the very notion of Law signifies a procedure of continuous evolution” [10].

Nowadays, the notion that conflict is inherent to human existence is widely recognized and, therefore, it is important to elect the best way of dealing with it, where the notion that they can carry out their function better when aware of these forms and methods is more palatable to the legal profession.

We borrow from Fernanda Tartuce the idea that “it is important to use, therefore, the notion of conflict as a possible object of transformation, change and, perhaps, evolution of beings, justifying why it should be dealt with in the best way possible”[11].

In Brazil, Resolution no. 125 of the National Council of Justice (CNJ) marked the beginnings of public policies involving the best means of conflict resolution in the sphere of Judicial Power, by addressing the need to implement other mechanisms of conflict resolution, especially settlement and mediation.

It is fitting to mention that “the term ′composition′ is more appropriate for addressing the subject than the expression ′solution′. Rather than an ′artificially created′ finalization, resolving (supposedly) the dispute by imposing an outcome for a single act, composition denotes the reorganization and structuring of a conflict into a new arrangement”[12].

Mediation, as defined in the Dictionary of Philosophy by Abbagnano, is the function which relates two terms or two objects in general. According to the Port-Royal Logic, “mediation is indispensable in any reasoning. ‘When consideration of just two ideas proves insufficient to decide on whether to accept or reject one idea over the other, it is necessary to resort to a third idea”[13]. This lexical definition serves to illustrate exactly what mediation involves: seeking of a third impartial party[14], that can promote communication among people in conflict so that, jointly, they can pave a way forward which meets their needs.

Thus, “this is precisely the aim of mediation: to help individuals investigate their best alternatives, their most satisfactory options in situations of deadlock or even to avoid them, as aptly stated by Six, ‘within this society of uncertainties in which we live’!  This does not, as some wish to believe, entail mere conflict resolution, because conflict is not something that is resolved or just dissolves, but rather transforms. Without conflict, humans do not create, live or recreate themselves”[15].

The use of better ways of conflict resolution has become more commonplace at the start of the millennium because experience has allowed us to clearly see – and accept – that neither attorney nor judge alone is able to deduce what is best for the client. And furthermore: this conclusion is down to the client who must be given the means, as a being imbued with subjectivity, to conclude what is best for them, in the context, assuming their place as protagonists of their history. These choices must be made amongst truly constructed options within a process that allows examination, assessment and decision-making based on the clients′ interests, needs and values, both objective and subjective, for mutual benefit.  

In the interaction between Law and Psychology practitioners, and other similar areas, the long reach of mediation becomes clear, this “old and time-tested technique whose effectiveness, transcending the immediate goals of conflict resolution and social peace-keeping, fulfils, ultimately, the need for understanding, communication and human dignity” [16].

However, it is important to point out that “in the context of hyperindividual cultures, a marked characteristic of contemporary Western society, opting for a form of conflict resolution grounded in the use of dialogue is an ongoing challenge for men and women of all ages: children, adults and the elderly”[17]. A challenge that, we believe, is being embraced with enthusiasm at a feasible pace.

Article one of the Universal Declaration of Human Rights establishes that: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”, an essential quality for living together in society.

Regarding other human beings with respect and care in a spirit of brotherhood leads us to a people-centered approach based on dialogue. This is necessary because it promotes clear and attentive expression, and likewise empathic and inclusive listening, being open and receptive to new perspectives, while respecting differences.

 It is no coincidence that “mediation, as a technique centered on the ability to listen, understand and liberate individuals entrapped by blind reasoning, in their interaction with the ′other′, predates Law and all other scientific specialties. This holds true because, although mediation more closely resembles the area given over to Psychology, it should not be confounded with this area, and transcends the division of knowledge into specific disciplines. And, in this sense, it aspires to an epistemological position more akin to philosophy than any other branch of knowledge. Thus, it can be safely said that mediation embodies a kind of return to undifferentiated knowledge and that its ethic transcends institutional matters”, as eloquently put by Antonio Cezar Peluso [18].

 Aristotle, in Nicomachean Ethics, carried out a study on the nature of justice, the principle foundation of world order and, thus, to which all virtues are subordinated. Justice is therefore construed as the exercising of all virtues involving citizens, a habit through which the just act and realize and strive for just actions. In its strictest sense, justice is a private virtue bestowed by alterity and equality and, hence, in Aristotle’s view, justice was a trait of character which makes people inclined to do what is just and desire what is just.

And, in this sense, mediators should be, as noted by Cezar Peluso, “individuals adept in the art of politics (fostering citizenship) of overriding the logic of non-contradiction and of inspiring the discovery of alternatives between right and wrong, just and unjust, between this or that predefined solution”[19]. Mediators are akin to conductors or directors, who do not take on the role of musicians or actors, “they understand, instill trust, set the beat, confer a kind of supplementary energy and encourage others to apply all their talent. Yet, ultimately, director and conductor are considered the principal individuals responsible for the work produced: the lone catalyst”, in the metaphor proposed by Jean-Fran?ois Six[20].

It is important to highlight that mediation, as we shall see in Collaborative Practices, is not for everyone, but only for those who have the ability, the will and the objective and subjective means to handle the job.  Neither the mediator, nor the professional team in Collaborative Practices, can act if the clients fail to engage in the procedure as active participants and passively await resolution by this third party. The mediator functions as a catalyst, a driver, and must remain in this role, without giving in to the temptation of acting as judge or arbiter, or seeking an external solution, which deprives people of the effort of personal construction.

Considering care and respect for beings living in society, “The mediator’s ultimate objective should be to allow people and groups who seek them to achieve a better existence: with and for others”[21].

Based on the same ideal, there are Collaborative Practices, in which “collaboration is built on creative possibilities, resulting from dialogue and understanding among people.  Through collaboration, people strongly engage in a positive manner, favoring fertile ground for ideas and visions, which go on to generate new ideas and innovative actions that make a difference in their lives”[22].

Collaborative Practices are a non-adversarial method of conflict resolution where each client is represented by a duly trained attorney and, together, all sign a Participation Agreement pledging to negotiate transparently and promising not to litigate during the whole procedure, under pain of interruption of the process with withdrawal of the professionals. The attorneys undertake to resort to the Law Courts only to ratify accords or take legal measures previously agreed between clients on the matter being negotiated. Thus, the clients have an environment in which they can safely converse, having both attorneys as allies in crafting an agreement which benefits the whole family.

It is recommended that two coaches join the Collaborative Team, one for each client, to assist in the subjective processes during the negotiation, and also to help the attorneys identify the true interests of the clients.

Both Mediation and Collaborative practices are based on the principle of good faith which is, above all, a moral value and “can take on a host of meanings, such as trust, loyalty, honesty, sincerity and fidelity”[23]. In the Practices, we adopt the term “transparency” to denote this commitment assumed by the whole team adopting the procedure, being an indispensable condition for hiring them and, by the same token, breaching of this commitment is grounds for halting the procedure and obliging the withdrawal of the whole multidisciplinary team, that will no longer be able to attend these clients on family issues.

The two methods also produce the same empowering effect in the participants “who feel able to resolve their own conflicts and lead their lives in a responsible, cooperative and supportive manner”[24].

The multidisciplinary approach to assist individuals that are emotionally damaged, showing respect for their rights, proves essential if we intend to promote effective care and respect, especially regarding family matters.

Ultimately, “the only family that counts for an individual is that which they, as an individual, count themselves part of. ′Count’was used with the double meaning this word has in Spanish: to include in a calculation and to narrate” [25].

However, if the subject is not given the opportunity for this narrative, we would not only be excluding them from the story but also preventing, denying, taking away, their role as protagonist, reducing them to zero. We, attorneys, no longer wish to speak for the clients, but want to be alongside them, as partners and consultants, not representatives!

In addition, unlike what occurs in legal disputes, “forged in the shackles of a temporality that does not coincide with the timing of bustling life, with everyday deadlines and tasks. Judicial communication is bound by timing which separates, with long timeframes, the issuance and receipt of information, which is always submitted to the treatment of legalese”[26]. The multidisciplinary approach respects people’s time, pace and the possibility of establishing timing which closes the gap between issuance and reception of discourses.

Thus, in collaborative practice we have the opportunity to assist our clients but, above all the family as a whole, in identifying values, true interests and priorities, seeking creative, inclusive, mutually beneficial solutions, with an eye to the future, participating in this composition, creating a new story, weaving a new fabric with which to dress themselves, and at their own pace. 

Collaborative Practices require a shift in professional attitude and in the practice of law, with greater respect and care for the professionals involved.  We, lawyers, must redefine our relationship with the other lawyer in order to work in partnership, as guides in the process and mentors of the negotiations, using the law as a framework and not a tool, in a negotiation grounded in transparency, good faith, based on objective interests and criteria, working effectively in a multidisciplinary team, given our commitment is with the health of the family – and not solely to defend the interests of one party.

The lawyer must be familiar with the principles of mediation[27] and Collaborative Practices[28] so they can help clarify to the client the most productive way of handling their demand, in a manner that instills their faith in the procedure chosen. To this end, communicating with the lawyer of the other party involved is of great importance to allow them to share these collaborative concepts. However, as Freud did in the past, we also have to show “the difficulties of our method, the time this will require, the efforts and sacrifices that must be made and with regard to success, state that this cannot be guaranteed, because it hinges on the behavior, understanding, obedience and persistence of the patient”[29] – the client, in our case.

Collaborative Practices also provide the chance to form an interdisciplinary team, including a specially trained health professional to act as a coach for the clients. This function should not be confounded with that of an individual therapist, in as far as it brings to bear specificities to directly help the client to understand and handle the emotions arising from the dispute, identify and prioritize topics, interests, needs and values of those involved; to develop and strengthen resources and abilities; to understand the communication dynamics with the other party; to grasp and deal with the issues related to the others involved (children, partners, employees); to resolve the pending matters that interfere in an effective co-parental relationship; to build a workable and collaborative parental plan; to prepare for dialogue and negotiation with the other party.

Besides engaging a coach for the clients, when children are involved, there is the possibility of hiring a “coach for the children”, a therapist specialized in children and adolescents, who joins the team to act as spokesperson for the children, in a neutral fashion, i.e. only one professional will be chosen by the clients, who shall trust in their work. Similarly, a financial consultant can be brought onto the professional team, who shall also act neutrally, gathering information from the clients and helping build scenarios.

The multidisciplinary team thus seeks to increase autonomy, provide freedom to think about solutions, avoid conflicts, fostering direct participation and accommodating the individual in all their potential. For this reason I firmly believe in proper handling of conflicts as a means of upholding the essential dignity, care and respect which humans deserve, as beings living in society that must act cooperatively. And it is in this way I believe the profession of lawyer should be conducted in the family arena: giving the subject a say and devoting time to listen so that the resulting dialogue can allow a consensus to be built and in this process the client has the chance to hear themselves as well as to be heard. The lawyer should be trained for this, where mediation is a valuable path to learning, and should have the support of a mental health professional, equally well prepared for this specific listening so that, ideally, they can work together as a team. 

This is certainly worthwhile: with individuals directing their own histories and professionals exercising all virtues toward the citizen, we shall attain true justice, updating Aristotle′s concept, given that the use of the right, timely and effective methods is what makes a just legal system possible.

I share the same faith as John Dewey, a North American educator who back in 1939 wrote:

“[...] A genuinely democratic faith in peace is faith in the possibility of conducting disputes, controversies and conflicts as cooperative undertakings in which both parties learn by giving the other a chance to express itself, instead of having one party conquer by forceful suppression of the other – a suppression which is none the less one of violence when it takes place by psychological means of ridicule, abuse, intimidation, instead of by overt imprisonment or in concentration camps. To cooperate by giving differences a chance to show themselves because of the belief that the expression of difference is not only a right of the other persons but is a means of enriching one's own life-experience, is inherent in the democratic personal way of life” [30].

And likewise the view of Paulo Freire:

I like being human, being a person, precisely because it is not already given as certain, unequivocal, or irrevocable that I am or will be "correct," that I will bear witness to what is authentic, that I am or will be just, that I will respect others, that I will not lie and thereby diminish the value of others because of my envy or even anger of their questioning my presence in the world. I like being human because I know that my passing through the world is not predetermined, preestablished. That my destiny is not a given but something that needs to be constructed and for which I must assume responsibility. I like being human because I am involved with others in making history out of possibility, not simply resigned to fatalistic stagnation. (...) I like to be human because in my unfinishedness I know that I am conditioned. Yet, conscious of such conditioning, I know that I can go beyond it”[31].

In conclusion, it is not by chance that this text begins and ends citing two great educators, because whatever our area of professional work, for effective respect and care with beings, we must strive for all to have quality education from birth, at home, in the family, the community, at school and in life in society, to learn how to communicate, exercise dialogue, grow together, always changing, with hits and misses, but always striving for exchange, expression, freedom, with respect, understanding that we are a whole that must act embodied by a cooperative ethic. Ultimately, whenever a child is born, the world starts to take shape...

REFERENCES:

[2] FREIRE, Paulo. Pedagogia da autonomia: saberes necessários à prática educativa S?o Paulo: Paz e Terra, 1996. p.52-54.

[3] Tania Almeida in the presentation of the work for which she is coordinator. PEREIRA, Tania da Silva; OLIVEIRA, Guilherme O Cuidado Como Valor Jurídico. Rio de Janeiro: Forense, 2008, p.XII..

[4] BOFF, Leonardo. Saber cuidar. ética do humano – compaix?o pela terra. Rio de Janeiro: Vozes, 2004, p.33.

[5] CAFFé, Mara. Psicanálise e direito. S?o Paulo: Quartier Latin, 2nd ed., 2010, p.165.

[6] CARVALHO, Pedro Caetano. Contribui??o da justi?a para a promo??o da paz, do cuidado e da resiliência. In: PEREIRA, Tania da Silva; OLIVEIRA, Guilherme. O Cuidado Como Valor Jurídico. Rio de Janeiro: Forense, 2008. p.75.

[7] NAZARETH, Eliana Riberti. Psicanálise e media??o - meios efetivos de a??o. https://www.pailegal.net/mediacao/mais-a-fundo/monografias/270-psicanalise-e-mediacao-meios-efetivos-de-acao. Accessed 24 June.2017.

[8] TUPINAMBá, Roberta. O cuidado como princípio jurídico nas rela??es familiares. In: PEREIRA, Tania da Silva; OLIVEIRA, Guilherme. O Cuidado Como Valor Jurídico. Rio de Janeiro: Forense, 2008. p.379.

[9] TUPINAMBá, Roberta. Op.cit.,p.379.

[10] TUPINAMBá, Roberta. Op.cit.,p.379.

[11] TARTUCE, Fernanda. Media??o nos conflitos civis. Rio de Janeiro: Forense, S?o Paulo: Método, 2008. p.33.

[12] TARTUCE, Fernanda. Op. Cit., p.36.

[13] ABBAGNANO, Nicola. Dicionário de Filosofia. 4th edition. S?o Paulo: Martins Fontes, 2003. p.655.

[14] Currently we recognize the concept of multi-partiality or active partiality, given the mediator can acknowledge their partiality and ensure this does not interfere in the mediating work.

[15] In the presentation of the work which they translated. SIX, Jean- Fran?ois. Dinamica da Media??o. Belo Horizonte: Del Rey, 2001. Translation by águida Arruda Barbosa, Giselle Groeninga and Eliana Riberti Nazareth. p.viii.

[16] Antonio Cezar Peluso in the preface of the book: SIX, Jean- Fran?ois. Op.cit., p.ix.

[17]ALMEIDA, Guilherme Assis. Media??o e o reconhecimento da pessoa. Revista do Advogado: Media??o Concilia??o. Year XXXIV, Edition no. 123, AASP, S?o Paulo, p.22, August 2014.

[18] PELUSO, Antonio Cezar. Op.cit., p.xi.

[19] PELUSO, Antonio Cezar. Op.cit., p.xi.

[20] SIX, Jean- Fran?ois. Dinamica da Media??o. Belo Horizonte: Del Rey, 2001. Translation by águida Arruda Barbosa, Giselle Groeninga and Eliana Riberti Nazareth. p.223.

[21] SIX, Jean- Fran?ois. Op.cit., p.247.

[22] MANDELBAUM, Helena. Métodos alternativos de resolu??o de conflitos: práticas colaborativas. In: LAGRASTA NETO, Caetano; SIM?O, José Fernando (coord). Dicionário de Direito de família, volume 2: I-Z. S?o Paulo: Atlas, 2015. p.706.

[23] TUPINAMBá, Roberta. Op.cit.,p.367.

[24] VEZZULLA, Juan Carlos. Media??o responsável e emancipadora – reflex?o sobre a atua??o dos advogados. Revista do Advogado: Media??o Concilia??o. Year XXXIV, Edition no. 123, AASP, S?o Paulo, August 2014, p.60.

[25] GALLANO, Carmen. Família e inconsciente. Revista Stylus, n.15, pp.11-24, Rio de Janeiro, November, 2007.

[26] CAFFé, Mara. Op.cit., p.175.

[27] ALMEIDA, Tania; PELAJO, Samantha; JONATHAN, Eva (coords). Media??o de Conflitos: para iniciantes, praticantes e docentes. Salvador: Jus Podium, 2016.

[28] Recommended reading WEBB, Stuart G.; OUSKY, Ronald D. The Collaborative Way to Divorce: The Revolutionary Method That Results in Less Stress, Lower Costs and Happier Kids – Without Going to Court. New York: Plume, 2007, and TESLER, Pauline H.; M.A; J.D; Thompson, Peggy; PH.D. Collaborative Divorce: The revolutionary New Way to Restructure Your Family, Resolve Legal Issues and Move on With Your Life. New York: Harper, 2007.

[29] FREUD, Sigmund. Conferências introdutórias à psicanálise. IN: Obras Completas, vol.13. S?o Paulo: Companhia das Letras, 2014, p.19.

[30] In the talk “Democracia criativa: a tarefa diante de nós”, apud ALMEIDA, Guilherme Assis. Media??o e o reconhecimento da pessoa. Revista do Advogado: Media??o Concilia??o. Year XXXIV, Edition no. 123, AASP, S?o Paulo, p.23, August 2014.

[31] FREIRE, Paulo. Op.cit., p.52-54.

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