MEDIATION

Make the correct Question: Principles of Orality, Immediate and Contradictory

Procedures or processes exist to end human conflicts, to decide and bring about acclaimed justice. Human conflict is the basis or challenge, which arises from the awareness of injustice and whose resolution is the objective of both paths. As Juan Carlos Vezzulla would say, the conflict is nothing more than the encounter “of two individuals confused by their own intrapsychic limitations, who face each other by incompatible positions, determined by the desire for power more than the other, structured in a position full of prejudices, that confuses more than clarifies their own interests. ” ([32]: 2003) Rhetoric as a space for orality, as a contact of spirits seeks to resolve the conflict, creating bridges, establishing a space for democracy, which is nothing more than communication.

When we reflect on the democratic nature of the judicial procedure, we always think of the principles of orality, immediacy and contradiction, as being the founders of legitimacy and power, in fact it is in recognition for the reception, a place of dialogue, where the first contact is established. As Bernard Guillemain would say, “it is a matter of contact with spirits. And this contact concerns the fineness of touching, probing (sniffing) in advance the reactions of others ”(1960: 6), it is here that we find space for debate and discussion between the parties (audiatur et Alter pars) in which each party deduces its reasons of law and fact and presents evidence, orally “before a judge, therefore at the hearing” (cf. Castro Mendes). It is this dialogue that encourages the contact of spirits, which will allow us the long (and not only short) effectiveness of the putative judicial decision that will end the litigation. These principles “have a positive right value (…) they are not linked to a written source; they exist outside the form the text gives them when referring to them ”(1979: 75/76). Perelman bases our democracy and its new rhetoric, precisely on these general principles of law "shared by all civilized peoples."

The chosen moments for the rhetorical practice are in the criminal process, the first interrogations, the instructive debate, the discussion and judgment hearing, and in the mediation process, the reception, the presentation and the creation of hypotheses. The two "paths" are both sequential, but the oral nature is much greater in the mediation procedure, where only the signature of the term at the beginning of the session and the final agreement are written. Thus, orality, trained by the rules of rhetoric, which grammar of its rational support seeks to welcome the parties. This moment is nothing more than first contact, than the mediation agents of the conflict or the police authority, being a mere mediation, or a legal procedure, record the incontrovertible facts of the identification and the boundaries of the dispute. Both paths are sequential and represent a trust on the part of victims and aggressors in the environment used, but they are also a relational process. The process is always both objective and subjective, composed of positions and interests, which must be distinguished in order to solve the objective problem.

The first moments, as close as possible to spontaneous interaction, in both ways are of an oral nature, while the last ones already require the writing contest, which implies a renunciation of the idea of ​​justice as command, seen before as a solution dialogical. The use of orality, as a logotechnical device of democracy in the public space, is the matrix of our political and legal culture. Without this space of orality, immediacy and contradiction, we retreat to barbarism. Both procedures, mediation and criminal proceedings need this dimension.

The oral nature has an almost absolute dominance in the mediation process, except for the final term or agreement whereas in the criminal process this oral nature is referred to the first interrogation of the detained defendant, instructive debate and discussion and trial hearing. Police and non-judicial interrogations, carried out without the presence of a lawyer, seek only to justify what is already known. In a different way, the criminal process does not dispense with dialogue either, but seeks to make sure by other means that the degree of certainty is assured, the truth is almost scientific and obtained by “Cartesian means” dispensing with the essential Rebbutal for Data to transform in a Qualifier provided by Backing, and allow the initial Claim to be confirmed, as in the new argumentation and rhetoric that seeks to legitimize only through the use of orality. (Toulmin, Stephen 2006: 150)

However, the mediation process cannot fail to be seen within a broader context, in which it is complemented with negotiation, conciliation and arbitration. The idea of ​​creating a network of peace judges, where non-contentious means (mediation, conciliation and negotiation) and a contentious means (arbitration) are made available to the public, is not to compete, but rather to complement the work of the justice bodies. It thus develops in a perspective of human choice that starts from sociology and not from imperativity as the penal process, still largely influenced by legal positivism.

Writing is also always present, even in ADR (Alternative Dispute Resolution), especially in the arbitration process where the final decision is ratified and acquires command strength. Thus are found the means such as negotiation (bargaining), conciliation and mediation, which are non-contentious means, we also find contentious means such as arbitration comparable to the judicial process, but orality is where the democratic and resolving basis of the dispute is built.

Orality translates into respect for the general principles of law, the use of legal tropes or places, legal arguments and elements of legal interpretation, instruments and figures of legal rhetoric. The instruments that argumentative rationality and oratory art enunciate are co-aided by the correct language, semiotics and legal hermeneutics.