Historical background of conflict resolution
Historical background of conflict resolution
The conflict is known since the beginning of life;Seen from creationist theories, according to the Bible in the book of Genesis, where even Adam and Eve, the first two unique inhabitants on Earth, and presenting with each other conflict of interest and mutual disagreements, despite the lack ofinteraction or existence of social groups with which to resolve. Seen this, from the biblical point of view, we can determine that certainly, the conflict by itself is a state of the human being. Individuals have a natural ability to disagree and have their own ideas, that we are able to defend over any other idea that could have a third party. It is common agreement between the scholars of this estate, which in that place where more than two people are, there is already some type of conflict between them, for issues that could be considered to banal.
This is why we must consider that mediation exists from the moment the first conflict arose and it underwent a discussion of possibilities in order to find a means that leads to a mutual agreement among the individuals involved. This happens in all areas;In the family, school, business and even sports field. The conflicts and the non -similarity of opinions have always existed, and a kind of mediation without technique, solved a series of problems in the different fields. The conflict can be considered as a condition of the human being, therefore the mediation or the ability to mediate, can be considered as a condition of the same as the conflict for.
The very origin of legal regulations, brings with it the need for society to regulate its various actions, in view of the fact that a conflict society is not possible to sustain in time and is the origin of a series of conflicts that canto become national and transnational battles, wars and confrontations. However, since before the creation of legal regulations and the birth of law itself as a positive norm, elements such as morals and custom became fundamental axes prior to the legal norm to cope with the resolution of conflicts that could be resolved betweenone or more people.
The conflict per is exists due to the coexistence between the parties, regardless of the fact that there are legal norms that regulate certain aspects. It is even identifying the conflict from an early age in early childhood. If we go to a children’s garden, we can see how there may be clashes between classroom children and at the same time, once the problem has occurred, older people intercede to end the conflict generated. A child is not able to recognize and identify legal norms, even moral to know whether or not to act correctly, however, it is connatural to human nature, the fact of setting up issues with other parts. Just as communication does not exist, there are always the possibilities of generating a conflict for any reason that may occur.
The role of third parties is essential for the resolution of conflicts and that is why the figures of people such as mediators, referees and judges, people outside the cause of the conflict to settle the issues in a clearest and impartial way,subject to the conditions of the parties.
"Conflict is not good or bad in itself, rather it is innate to the human condition and interpersonal relationships". It is therefore that we must limit, that there would be no conflict resolution or its various techniques, but be because of the human nature of creating them for themselves for their own reasons.
Beyond the conflicts circumscribed to the very nature of man, in much of the occasions, due to the obligations born following the promulgation of the legal norms encompassed within the range of positive law, sometimes, we see you in obligationto handle their resolution, as a consequence of the obligations born by legal norms, want these or not, to be involved in matters of that nature.
Historical evolution of conflict resolution
According to Otero Parga, there are three moments in the historical evolution of conflict resolution, among which we can distinguish the following:
The first moment dating from the first stage of history where despite the absence of regulatory bodies, civilizations always possessed people with recognized authority in the population who was responsible for resolving disputes between individuals.
After that, little by little forums were formed where individuals resulted in a safer, more regulated and organized conflicts between them, where they came to ask for justice or advice.
After the regulatory culture and with the birth of the positive norm, the third historical moment arises, where the institutionalized judiciary is born.
It is clear that the advent of humanity, resulted in the need to resolve conflicts, due to the roads that are taken by hand, because in any space where more than two people are, the conflict arises. The mediation of conflicts has been given since ancient times of civilizations. In countries like China and Japan, it was understood that people with major authority should intervene in citizens’ conflicts, trying to find a clear and healthy solution for the wrapped parties. Even in Japan, mandatory conciliation was imposed, prior to legal processes.
In the case of Africa it was common. Likewise, at the family level the family circles could be identified where the heads of family, helped, through the propitiation of peace, to reach agreements between them.
In the United States, the same aura of disgust due to the arrears of the jurisdictional instances, gave rise to the boom of the "alternative conflict resolution media". These achieved a significant reduction of the so -called judicial default, which allowed, that both the cases carried out by alternative means, and those that remained in the ordinary jurisdiction, had a resolution of higher quality and even more effective, since in the case ofThe cases known in the ordinary courts, the judges had a greater amount of time to examine more effectively the cases that reached their jurisdiction, which led to a more effective justice, and is worth the redundancy, more just.
In the case of Latin America, alternative conflict methods are still in their first steps, if we compare with the leaps that have reached European countries and the United States. However, it is clear that as phenomena such as globalization and recognition of international law are promoted in the region of the Americas, methods such as the alternative resolution of conflicts, will take strength to consecrate themselves as an election, not only of the great corporationsor the government, but also for small and medium enterprises and even for family conflicts and between individuals.
Legal Base of the Alternative Conflict Resolution in the Dominican Republic
In the Dominican Republic, the alternative conflict resolution is a figure that is booming in terms of its growth, spaces such as the Conflict Resolution Center (CRC), regulated by the Chambers of Commerce of the different provinces, have startedHis impulse process to promote an alternative culture of justice in conflict resolution systems in the Dominican Republic. However, nevertheless there is a decentralized regulatory body of the alternate resolution culture of conflicts, Dominican justice, from the beginning of the Republican life (1844), and with the creation and development of the Judiciary, have always advocated by thepeaceful resolution of conflicts.
The ordinary justice of the Dominican Republic, governed by the Judiciary, maintains alternating conflict resolution systems. In the particular case of justice on labor issues, it is conceived in the Labor Code, the indispensable knowledge of a conciliation hearing where the judge invites the parties to reach some kind of agreement. The Labor Code outlines the following about it, namely:
art. 674. The part interested in resolving an economic conflict not resolved by direct agreement will request the mediation of the Secretariat of Work, by means of writing and signed (…) ¨
The Labor Code also recognizes the use of the figure of arbitration in its articles 680 and following, which outlines the following:
Art. 680. The parties will designate three referees to resolve any economic conflict not resolved conciliatory. In the cases of conflicts that affect an essential service, it is presumed that the parties delegate the power of designation of referees, in the president of the work court of the place where the conflict has been raised, when they do not exercise it for themselves within themselves withinthe three days subsequent to that of their last meeting with the mediator, or when they do not declare in equal term the designation they have made before the Department of Labor or in the local representative’s office.
It is evident that the Dominican labor norm has been influenced by conflict resolution techniques, other than the ordinary jurisdictional process by before the country’s courts. In this way, it is achieved with this objective, to promote the culture of peace between employers and workers, reduce problems such as the judicial default that excessively slows down the knowledge time of issues that are submitted to courts and for others, causes thatThe decisions taken, are within the framework of the collective consensus, where both parties feel that they have obtained gain advantages in their processes.
In the case of criminal justice, the Code of Criminal Procedure, outlines in its articles 37 and following, the implementation of conflict resolution techniques, such as conciliation and mediation, in the particular case of this second figure, specific to whatNext:
art. 38.- Mediation. To facilitate the agreement of the parties, the Public Ministry can request the advice and help of persons or entities specialized in mediation, or suggest those interested to designate one¨.
Conciliation as a figure of greater use, is the most used means, in those cases in which the Public Ministry understands lack serious consequences, as long as it is possible to carry it out by mutual agreement of the parties, in case of the impossibility ofconciliation between the parties, the procedure established by the ordinary justice will be proceeded before the courts of the country.
The alternative conflict resolution, formally was born in 2006 through the issuance of resolutions 402-2006 and 886-2009, on the declaration of public policies for the implementation of alternate methods for conflict resolution, in the first instance inThe Family Mediation Center of the Judiciary and for the regulation of the alternate resolution procedures of criminal conflicts, however, the latter was repealed by Law 76-02, which creates the Code Code Code.
Regarding family law, the Code of the Minor provides conciliation in cases related to food, guard, visits, authorization of travel, affiliation or others, in the Dominican nation.
In the case of commercial law, commercial entities, such as merchants and companies, have organizations such as the Conflict Resolution Center (CRC), to resolve their conflicts alternatively to common law.
1.4. Role of the lawyer in the Alternative Resolution dispute (ARD).
The processes of alternative conflict resolution, which most frequently involve the figure of conciliation is used daily in court, particularly in issues related to labor law and family matters, such as food pension, parental visits, among othersissues. In the text published by the National School of the Judiciary called as "alternative conflict resolution", outlines about the importance of the presence of the parties in the conciliation sessions that are carried out in some legal processes. It emphasizes that although it is true that a lawyer can copesituations lived by the same.
In the case of labor jurisdiction, which in its traditional scheme, has defined a conciliation hearing which must be mandatory by the parties, is a success percentage well below what desired. This is due, according to the authors of the aforementioned text, that this conciliation process is carried out by the lawyers of the parties involved in the process and therefore, interests lose strength when transmitted by another person.
Otherwise it happens in the conciliation processes carried out in the Courts of Peace, where the issues related to food pensions, where the presence of the parties is required for the knowledge of the conciliation, the success rate of success ofThese conciliations are mostly higher than in those situations in which those affected in the place of the dissertation are not found.
These types of issues are mostly due to the lack of pacifist culture in the exercise of law. Lawyers are mostly trained to settle the conflicts of their clients and their own through the litigation. Therefore it is important to try to adopt the culture of attending these views, accompanied by customers, so that the success rate of conciliation sessions or other measures of alternative conflict resolution increases, to decongest the courts of those files thatIn fact, they could have known by alternative means successfully.
In cases related to mediation, given the nature of the figure, the presence of the parties constitutes a fundamental and precise fact, leaving the figure of the lawyer in the background, since in the mediation processes, they are the partiesthat decide which agreements to arrive and therefore they are the ones who decide which agreements to arrive in order to comply with the agreed.
With the implementation of alternative conflict resolution methods, in several instances of the ordinary jurisdiction, a culture that builds the figure of the lawyer has been promoted, and makes it a litigating lawyer to a conciliatory lawyer and pacifist. The role of the lawyer in the alternative processes, pursue their clients, have the most appropriate solutions, according to their needs.
In some countries, the assistance of durating lawyers the conciliatory stages, are mandatory, as is the case of Argentina, however, others leave it at the discretion of the parties.
It should be noted that the fundamental importance of the lawyer in this type of issues lies in the fact that they are responsible for guiding their clients, so that they can practices all the stages of the process, explain, how far their rights arriveAnd duties, the need or not to reach an agreement in this way, explain issues related to confidentiality and scope of said principle. Defines the strategies to follow to achieve better agreements, promoting that it is prevented from reaching a possible trial. To do this, we must achieve instruction on issues such as the one at hand, to achieve the composer culture in the lawyers of the country and the world.
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