Disputes as the subject matter of Civil and

Mediation has the function to canalize conflicts in the social system. There are different forms and dimensions of conflict in a social system. There are intrapersonal and interpersonal conflicts, individual and social conflicts, intragroup

227 Luhmann 2009, p. 15.

228 See for an example of the rationalization process in the practice of mediation: Moore 2014, p. 186.

and intergroup conflicts and international conflict. There is no universal definition of conflict, but the concept of conflict obtains meaning only because it is given a meaning within a specific theoretical framework. ²²⁹ One can therefore say that the conflict is a social construct.²³⁰ At the level of communication, a conflict is defined as a contradiction to a communication by which expectations are communicated. A conflict therefore arises if expectations are communicated and the non-acceptance of these expectations is communicated in return. ²³¹ Such conflict may emerge without any clear objective reason. It is sufficient that a contradiction is communicated.

Once the conflict has started, the conflict develops its own integrative undertow which means in other words that the conflict escalates.²³²

Felstiner et al. have described conflict as a social process that may or may not evolve into a dispute.²³³ A conflict starts if someone perceives that the other has frustrated, or is about to frustrate, some concern of his or hers. The emergence of a conflict therefore requires that there is a perceived injury and somebody that he or she blames for the perceived injury. According to a broad understanding of conflict, a conflict does not necessarily have to be openly communicated but may also be hidden. A further transformation of the conflict occurs when the grievance is communicated to the person or body considered to be responsible and a claim is made. The conflict is transformed into a dispute when a claim is rejected in whole or in part by the other person or group.²³⁴ The disputes so described have several characteristics: they are subjective, which means that the transformations occurs in the mind of the disputant. The disputes are unstable as the transformation is related to perceptions of wrongdoing that may change when they are processed and not objective events that happened in the past and the disputes require and induce a reaction, hence they are characterized by reactivity. ²³⁵

It is relatively easy to draw a line between conflicts and legal disputes. Legal disputes are conflicts that involve a reference to the legal/illegal code.²³⁶ They involve a claim that is based on legal positions. It is more difficult to develop a distinction between conflicts on the one hand and disputes on the other. Some

229 Menkel-Meadow, Love and Schneider 2006, p. 5. In the social sciences there is no generally accepted concept of conflict. Anything from a disagreement between children to a nuclear war may be considered to be a conflict: Röhl 1987, p. 448. For a distinction between conflicts of interests and conflicts of values, see Aubert 1963, p. 27.

230 Felstiner, Abel and Sarat 1980, pp. 631.

231 Luhmann 1987, p. 530. On the conflict in systems theory: Simon 2015, p. 7.

232 For a model on the escalation of a conflict: Glasl 2013, p. 238.

233 This is described as a process of naming, blaming and claiming: Felstiner, Abel and Sarat 1980, p. 636.

234 Felstiner, Abel and Sarat 1980, pp. 635-636.

235 Felstiner, Abel and Sarat 1980, pp. 637-638.

236 Ervasti draws, for instance, a distinction between conflicts and juridified conflicts (disputes) Ervasti 2009, p. 22.

scholars see the turning point at the moment the conflict is reacted to.²³⁷ The conflict turns into a dispute when somebody else is blamed for the wrongdoing and reacts to being blamed. In contrast to a conflict, a dispute is always shown openly. However, it is still connected to the subjective perception of wrongdoing and may be connected to values, reputation as well as other resources the disputants consider themselves to be entitled to. According to this view, it would be necessary to distinguish between a conflict, a dispute and a legal dispute. Luhmann on the other hand considers the contradiction to be an element of the conflict itself. For him, the transition from a conflict to a dispute is made when the topic of the conflict attracts communications and the communications start to turn around this new topic.²³⁸

The distinction between conflicts and disputes is also often expressed by the distinction between conflict resolution and dispute resolution. Dispute resolution has been described in a narrow sense as the resolution of a legal dispute, while conflict resolution has been described as the resolution of the conflict at large.²³⁹ Whenever there is an intervention mechanism, the conflict changes and is reformulated (and with it, the subject matter of the conflict). In order for a conflict or dispute to be resolved in a conflict or dispute resolution mechanism, it must be reproduced. In judicial proceedings the conflict is reproduced as a dispute over legal positions. Such reproduction can also be observed in different mediation models.

As noted earlier, the understanding of the conflict varies according to the mediation model used.²⁴⁰ The pragmatic model developed by Fisher and Ury presents the conflict as a frustration of needs and interests that is presented through a fight over positions. The transformative school represented by Bush and Folger considers the conflict to be an interactional crisis between the parties.²⁴¹ This determination of the conflict has an impact on the way the intervention process develops and communication proceeds, and vice versa. The dispute resolution mechanism determines how the conflict is to be perceived.

Civil and Commercial Mediation that is functionally equivalent to court proceedings uses a concept of conflict of its own. Conflicts between different classes of society or a disturbance regarding the relations between the parties are not the subject of Civil and Commercial Mediation. They would also not be the subject of court mediation. The question then, is whether the conflict must have a legal element, whether there must be a conflict over legal positions or regarding facts that are legally relevant to be handled in Civil and Commercial Mediation. It is

237 Menkel-Meadow, Love and Schneider 2006, p. 5.

238 Luhmann 1980, p. 101.

239 Koulu 2006, p. 63. Ervasti 2009, p. 23.

240 Alberstein 2006, p. 333.

241 Bush and Folger 2005, p. 46.

obvious that a mediation that seeks to achieve an outcome that is binding and may be declared enforceable requires legal positions to be asserted or formulated at some point of the process. This does not have to take the form of a formal statement of claim, hence the parties do not have to formulate a legal position in the narrow sense, but the assertion must include a position that creates, changes or terminates a legal right and that may be declared enforceable, if requested by the parties. A process that is meant to be an alternative to litigation necessarily involves a dispute that could alternatively be operated in accordance with the legal/illegal code of the legal system, which does not mean that the dispute is reduced to legal positions as it is the case in litigation. Taking into account the transformative process of the disputes and dispute resolution and the subjective elements of the conflict, one may reformulate the subject matter of Civil and Commercial Mediation as a dispute that consists of legal positions and subjective perceptions of frustrations of interests and needs.