Authors : Elena Fogliata ,Co-authors Erica Bagni, Gian Piero Turchi
University of Padova, Italy - General Psychology Department
Master’s degree in Mediation as an operative tool within the penal, family and communitarian field
This paper has the aim to present which structure and function has mediation praxis within a theoretical paradigm that considers the reality as a discursive configuration generated by the speakers.
So, through this paper and moving by this approach, the aim is to share with this auditorium the alternative that mediation can represent to the judicial system in the contexts in which there are conflicts and controversy.
Slide 1
A clear example of these contexts, is our society that is more and more globalized, or characterized by a continue transformation of international, national, regional and local communities, both in reference to political-economical and socio-cultural aspects. This transformation is characterized by a continuous intersection between different cultures and societies, because of the increasingly intense socio economical exchanges.
The presence of different ethnic group sharing the same territory can often represent typical critical aspects, increasing all those classical conflicts of our societies on a civil, penal or familiar level.
The plurality and differentiation of the cultural references, in fact, can imply the possibility that each interlocutor interprets it’s own everyday life and exigencies coherently with it’s ‘personal’ point of view, as well as on the basis of their own cultural references. This generates both “disagreement” and “stigmatisation” of the other.
It is well known, in fact, how cultural references gave to persons a strong background and a firm forma mentis, that guide, characterize and set opinions and beliefs , blocking off whichever fusion with the reference of the others.
Slide 2
In this sense, on an interactive point of view, there is an increasingly possibility to have new relationships characterized by conflicts and controversies, or by peculiar and specific ways for configuring discursively the reality, so not looking for common elements between the two parties involved in the relationship. In this way, the parties remain bounded on their definition of the reality and consider the Other as extraneous and “averse”: what ensue from this process is that the Other is closet on a stereotypical definition of the identity, with the attribution of discursive elements and characteristics so ‘far’ and ‘jarring’ to close the possibility to have a relationship , or to manage the situation.
In other words, what since now explained implies a firm position of each party in conflict/controversy in it’s own discursive configuration of the reality ,considering it as right and true. This position is reinforced by the internal coherence of the opinions and by the use of the Other as element that confirm the assumed positions/ways.
Slide 3
Actually in Italy, the way at disposal to parties to resolve their conflicts derives by the judicial system,basing on sanctions presuppositions and referring, in theoretical-epistempological terms, to a mechanicistic paradigm that considers one of the counterparty as the “cause” of the conflict, so “on the wrong side”. In this way, assuming these reference,the reality is unique and factual:it is possible to detect the causality mechanisms for each event (natural or social) in which a person can be involved. This reality exists independently by the persons.
Slide 4
Deepening how the judicial sanction system is functioning and the modalities it uses, it is sufficient to consider that the presence of an expert (the judge), a third party, external to the conflict to which is delegate by the parties the characterization of a solution of the dispute is previewed and necessary. The judge works making reference to the laws corpus in force in that moment. This corpus defines and ratifies the reality as unique and inviolable, because ordered by defined and precise laws.
The judge to absolve to what is required, that is the solution of the conflict, looks for the cause that generated it: it examines the content of the controversy and founds the causal link; than - to reinstate the original state of the violate reality by the infraction of the law - the intervention is on the effect link: a sanction that removes the founded cause.
Slide 5
Analysing what here described it is possible considers that
the attention of this system is totally turned on the guilty that receives the sanction or punishment to pay off the “victim”
the parties in controversy have a passive role in a prosecution like this, due to giving to third a proxy to solve the conflict deciding the wrong or the right
the parties are fixed in that roles they had at the beginning of the judicial iter and believe to be on the right side, looking for a confirmation that the other ones is on the wrong. This remains also when the dispute is ended through the judge sanction, so when the solution has been founded. Also the counterparties roles remain when the punishment is extinct and there are a winner and a looser, this because the prosecution doesn’t offer to the parties instruments to manage/resolve the conflicts.
From what have been said, is foreseeable that also in the future there will be the same need by the parties to turn to the judge to resolve hostile situations, because of the absence of that personal instruments to manage autonomously it.
Through this description is clear how the sanction system generates and maintains some critical aspects , as well as the average duration of the prosecutions or the repeated and high economical cost both on an individual (parties) and on a social level.
Slide 6
The alternative here presented in the optic to hack the critical aspects over described, moves by the theoretical and methodological presumptions of the narrativistic paradigm (Turchi 2000). In the symposium Epistemological foundation and methodological exactness regarding research in the discursive science are deepened all methodological and operative aspects.
The alternative useful to manage the conflict places in the judicial reparative system, in antithesis with the sanction system before described.
Within the narrativistic paradigm the reality is defined as generated by the discursive ways, so, it is a discursive construction, a diachronic process that changes continuously and is not rectifiable. So the reality is discursive - or a series of discursive configurations - that notwithstanding changes and are every moment real in their pragmatic effects.
The assumptions of this paradigm , differently by that of the sanction system, bring to the re-definition of “controversy” and “conflict”, here it is considered as a “discursive configuration in which a party or both parties define a personal reality that does not permit the possibility to detect common elements”. So, there are discursive “positions” of each party, that does not consider the possibility to open its reality to the other, considered as wrong and different. By this derives “controversies”.
Moving by this definition, within the narrativistic paradigm, the elective instrument to manage conflicts is mediation, intended as “the promotion of the communication between two or more counterparties in controversy, with the aim to construct a THIRD reality, not anticipated by the definition gave by the parties, a reality that will be common with shared elements to proceed in the relationship”
To show step by step all the elements that constitute this alternative proposal of justice, and those in antithesis with the sanction system, some specifications about the reparative system and concerning the mediation praxis follow.
Slide 7
by the definition of mediation, firstly, is clear how the presence of a conflict or a controversy is a necessary and sufficient condition to have a mediation intervention. In this situation the parties are considered as the experts of the conflict, because they generated it. So it is not delegate to a third expert the solution of the ‘problem’. The mediator, in this sense, is an external shape, neutral and without decisional power, who supports the relationship between the parties , and not who find the ‘right’ or the ‘wrong”. If the dialogue between the two is hindered by the stereotypification of the interlocutor , the aim of the mediator is to interfere and modify these “typification processes” , working on the discourses that define the other as “a precise chap”. So, the aim of the mediation is to raise a description of the other through discursive processes that permits to generate a third common reality.
This aim is followed by the mediator, favouring the individuation – among the discursive element – of a common field, a third reality, not before considered, but from that time, fondant element to manage the future conflicts.
So, the mediator makes possible a communication between the parties in conflictual dialogue, thorough rhetoric strategies, transforming what has been defined as ‘problem’ or ‘solution’ in a resource to generate a shared reality. In this sense, it does not look for a better solution.
The paper The Application of the Textual Analysis Methodology within the Mediation: Operational praxis, stratagems, textual analysis, case studies, wrote by Cristina Landi and Simona Fanelli offers a deep explanation of the application of mediation.
Continuing this speech, it’s remaining on a generative level, and not on a specific content level of the controversy, that the mediator can support the conflict relationship. In these terms, at least, it is possible to give to the parties competences of management those processes that will carry out other static and typified configuration, offering useful competences to manage autonomously new conflicts.
Slide 8
To exemplify what explained, follow two dialogues developed in a familiar field, the first one characterized by typification processes, the second one by those common elements that the mediator has to highlight and that are the focus for the generation of the third and shared reality.
Table 1
Mother: «have you seen? Mark is having a hard period. He doesn’t eat with pleasure from weeks….»
Father: «…it’s because he is tired of YOUR persistence: you have to eat! Eat! Eat!! »
Mother: «and what ABOUT YOU, he wouldn’t stay in the kitchen more than five minutes »
Father: «WITH ME he would eat, if YOU WOULD PERMIT to the others to live! So he could do as he wish!…»
Mother: «you see! It’s impossible speak with you! »
Table 2
Mother: «have you seen? Mark is having a hard period. He doesn’t eat with pleasure from weeks….»
Father: «…it’s because he is tired of your persistence: you have to eat! Eat! Eat!! »
Mother: «and what about you, he wouldn’t stay in the kitchen more than five minutes »
Father: «anyhow… I’ve seen too he is not eating so much from some week… at school..what teachers are saying about?»
Mother: «yes, we have to meet them to talk about him.. Mark says he is eating at school, but we have to listen the teachers… MAY WE go there tomorrow? »
Looking the first column (table1), after the first sentence, a series of reciprocal attributions is produced. Reading since the last sentence , it is evident how the reality configuration that have been generated does not permit the possibility to “talk” with who has a definition of reality totally different and paired. This first exemplification highlights how during a dialogue it is possible to generate a reality so exclusive, and to use a lot of elements that make it stronger and reinforced.
Differently, in the second column (table2) it is represented the use of knowledge processes that configure a reality definable as “third”, it permits a shift from a conflict level to another ones. So, a sentence like «anyhow… I’ve seen too he is not eating so much from some week… at school..what teachers are saying about?», is the marker of a change: the question lays at the other the role of the interlocutor and not that of the “enemy in wrong”. This permits to the party to continue to talk.
Slide 9
About the sanction system, it is possible highlight the implications of the reparative approach :
parties have to manage the conflict they have generated: In the sanction system they are deprived of this possibility
parties are active roles, essential to make the third reality and did not wait for a solution founded by others, this highlights how the contribution by both parties is necessary and essential
counterparties have to contribute equally to the generation of the common reality, they have to do the same movement, otherwise the risk is that the mediator is an adviser of each party and not the mediator between the two.
Slide 10
Concluding and analysing this speech in cultural terms, the pragmatic implications of the management of a conflict through mediation are:
the generation of responsibility in reference to the infraction of a social established law, instead of the proxy to third (the judge) that has to solve the conflict,
victim and guilty have to participate to the management of the conflict, so all the community is progressively called to manage its internal conflicts . Step by step the community acquires instruments and competences that will bring private and social costs down
parties reciprocally collaborate to generate other and shared realities: the maintenance of the counterparties follows
Finally, this praxis permits to the community to pass to a perspective where the other, the different is, a resource at disposal to manage and pursue objective of change and to develop the community.
CONNECTED TO THIS PAPER YOU CAN FIND:
in the section “MEDIATION”
- The Application of the Textual Analysis Methodology within the Mediation:
Operational praxis, stratagems, textual analysis, case studies, paper and slides files
in the section “DIALOGICAL MODEL”
- Epistemological foundation and methodological exactness regarding research in the discursive science, symposium and slides files
CONTACTS
labsalute.psicologia@unipd.it
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