¿QUÉ SON LOS MÉTODOS ALTERNATIVOS DE SOLUCIÓN DE CONFLICTOS - MASC?

Mecanismos Alternativos de Solución de Conflictos

Introducción a la Videoconferencia

• La videoconferencia es presentada por la doctora Delia Grandes Andra Remolina Botía, presidenta del Consejo Superior de la Judicatura, junto con otros magistrados.

• Se reflexionará sobre las competencias y actitudes necesarias para aplicar técnicas de negociación en el ámbito judicial, enfatizando el derecho de los ciudadanos a una justicia efectiva.

Presentación del Expositor

• El Dr. Cossy Alfonso Dávila, magistrado experto en legislación financiera y derecho civil, será el expositor principal.

• Su presentación abordará medios y técnicas de negociación como preparación para futuras conferencias que profundizarán en mecanismos específicos de resolución de conflictos.

Estructura del Taller

• La conferencia se dividirá en dos fases: una introducción general hoy y un análisis más específico dentro de ocho días.

• Hoy se discutirán características generales y se distinguirán entre mecanismos y técnicas de negociación.

Concepto de Negociación

• La negociación es presentada como una necesidad biológica inherente al ser humano, esencial para satisfacer necesidades desde la infancia.

• Desde pequeños, los humanos participan en negociaciones cotidianas que abarcan desde relaciones familiares hasta interacciones sociales complejas.

Características Generales de la Negociación

• La negociación implica un intercambio que puede incluir bienes, servicios o valores para satisfacer necesidades mutuas.

• Se define como un proceso que busca acordar relaciones personales o colectivas, abarcando aspectos económicos y jurídicos.

• En toda negociación pueden participar múltiples partes e incluso terceros que faciliten la solución del conflicto.

Negotiation Dynamics and Conflict Resolution

Understanding Negotiation

• Negotiation is characterized as a bilateral process involving multiple parties, aimed at exploring and reaching agreements that regulate their interests or rights.

• There are two types of negotiation: with contention (conflict) and without contention. Non-contentious negotiations occur in everyday transactions, such as shopping, where there is no conflict but merely an exchange of interests.

Types of Conflicts in Negotiation

• Negotiations can also arise from contentious situations where interests or rights are disputed, leading to conflicts that require resolution.

• The discussion highlights the importance of alternative dispute resolution mechanisms compared to judicial processes, suggesting that alternatives should ideally be employed before conflicts escalate.

Positive Aspects of Conflict

• While conflict often has negative connotations due to confrontation, it can also serve a positive role by highlighting the need for problem-solving and public participation.

• Engaging in conflict resolution mechanisms is viewed as a form of democratic participation, emphasizing the importance of teaching children negotiation skills from an early age.

Legal Capacity in Negotiation

• Participants in negotiations must possess legal capacity to exercise their rights; this includes understanding their ability to enter into obligations independently or through representation.

• Minors can engage in negotiations related to disputes within schools or homes, indicating that they have opportunities to learn negotiation skills despite their age.

Conditions for Effective Negotiation

• It’s crucial for participants lacking capacity to be represented adequately while ensuring that representatives' powers and limitations are clearly defined.

• Negotiations should only involve matters legally permissible for transacting; certain fundamental rights cannot be negotiated away, such as the right to life or personal identity attributes.

Equality and Fairness in Negotiation

• Even if participants are in unequal positions, negotiations must strive for relative equality and freedom; dominance by one party undermines genuine negotiation efforts.

• If one party imposes conditions on another without mutual agreement, it leads to an ineffective negotiation scenario rather than a collaborative process.

This structured summary encapsulates key insights from the transcript regarding negotiation dynamics while providing timestamps for easy reference.

Negotiation and Conflict Resolution

The Nature of Negotiation

• True negotiation requires a relative balance where all parties benefit, which can occur directly or with third-party assistance.

• Self-composition refers to parties resolving their conflicts independently, while hetero-composition involves a third party intervening in the resolution process.

Mechanisms of Conflict Resolution

• Arbitration is an alternative conflict resolution mechanism but differs from negotiation as it is a formal process rather than a negotiation itself.

• It’s essential to distinguish between negotiation mechanisms and techniques; the former are methods for conflict resolution, while the latter are strategies employed during negotiations.

Forms and Techniques of Negotiation

• Negotiation forms include alternatives for conflict resolution without judicial intervention, applicable even within judicial processes like judicial conciliation.

• These forms vary by legal systems and contexts, ranging from common to less known methods that can be utilized across different jurisdictions.

Legal Foundations of Alternative Dispute Resolution

• The fundamental basis for these mechanisms includes legal frameworks and the freedom of parties to seek alternative solutions within constitutional limits.

• Article 116 provides constitutional backing for individuals temporarily assuming justice administration roles, such as jurors or conciliators.

Specific Methods of Negotiation

• General negotiation serves as a broad method for resolving disputes with or without third-party involvement, aiming to reach mutual agreements.

• Various figures in law practice facilitate negotiations; however, this discussion will focus on select examples rather than exhaustively listing all options.

Key Examples of Negotiation Methods

• Dación en pago (payment in kind): A unique legal figure allowing debtors to transfer property instead of cash payments to settle debts.

• Transacción (settlement): A civil contract designed to resolve disputes either preemptively or during ongoing litigation through reciprocal concessions from both parties.

Importance of Conciliation

• Conciliation involves an impartial third party aiding in dispute resolution by suggesting solutions derived from both sides' proposals without losing neutrality.

• This method has gained traction since reforms in 1989, leading to numerous conciliation centers established across various institutions.

Alternative Dispute Resolution Mechanisms

Overview of Alternative Mechanisms

• The discussion begins with a reference to a recent video conference on reconciliation, highlighting alternative mechanisms such as peace judges, which operate differently from state justice by making decisions based on equity rather than strict legal frameworks.

• The concept of peace judges has historical roots in indigenous cultures, particularly among the Palabreros and mediators. In Peru, this figure has been successful for over 22 centuries.

Consumer Financial Protection

• Another alternative mechanism mentioned is the financial consumer defender, which acts as a mediator between financial entities and users under Law 1328 of 2009.

• The process involves submitting a complaint to the financial entity or directly to the defender, who then assesses whether to admit the complaint within a few days.

Arbitration as an Alternative

• Arbitration is presented as another alternative dispute resolution method where arbitrators act like judges to resolve disputes in matters permitted by law, regulated under Law 1563 of 2012.

• There has been an increase in arbitration usage for both significant economic disputes and smaller conflicts in recent years. Various institutions provide information about these arbitration mechanisms.

Techniques vs. Mechanisms

• A distinction is made between "means" (legal mechanisms for conflict resolution) and "techniques" (behavioral methods aimed at achieving favorable agreements).

• Techniques are described as skills or tactics that involve psychological, sociological, ethical, and legal considerations during negotiations.

Practical Negotiation Tactics

• The speaker emphasizes that negotiation techniques vary widely and depend on individual skills; they can also be referred to as tactics specific to each case's context.

• One practical tactic discussed is taking initiative during negotiations—whether buying or selling—which can influence outcomes significantly compared to waiting for offers from others.

Negotiation Techniques and Strategies

Importance of Serious Offers

• Offers in negotiations should be serious or reasonable, aiming to be close to a point of equilibrium. This establishes a foundation for effective negotiation.

• Some negotiators may start with insincere offers, which can undermine the seriousness of the negotiation process and lead to misunderstandings.

Risks of Insincere Offers

• Offering products at significantly inflated prices or very low prices is risky; it can lead to quick withdrawal from negotiations if perceived as insincere.

• It’s crucial for negotiators to know when to concede during bidding processes to avoid failure in negotiations.

Establishing Limits and Concessions

• Preparing limits on demands and potential concessions is vital. Negotiators must have clear guidelines for successful outcomes.

• Understanding one’s own point of equilibrium helps in determining how far one can negotiate without compromising essential interests.

Managing Demands and Offers

• Negotiators should assess whether their demands are excessive or merely distractions, ensuring they remain focused on key objectives.

• Knowing when to make final offers or retreat from negotiations is critical; this prevents alienating the other party.

Utilizing Strong Arguments

• Employing strong arguments based on previous business relationships can enhance credibility during negotiations.

• Reminding parties of long-standing commercial relationships can encourage them to continue negotiating rather than breaking off discussions.

Presenting Realities and Advantages

• Demonstrating the practical benefits of reaching an agreement, such as financial advantages or improved relations, can persuade parties towards conciliation.

• It's important for negotiators to present realistic expectations about product values, helping counterparts understand market realities.

Offering Additional Benefits

• Providing additional advantages during negotiations—such as better quality options—can sway decisions positively towards closing deals.

Negotiation Tactics and Strategies

Concessions and Added Value

• A common tactic in negotiations is to persuade the other party to make concessions, such as price reductions or increases. This can involve offering non-traditional advantages like advertising or recommendations to third parties.

• Negotiators can also leverage added value from related products or services, asking what additional benefits they can provide in a deal, such as internet installation combined with satellite signal.

Importance of Information Management

• The management of information is crucial in negotiations; understanding the other party's needs and desires allows for better exploitation of that information.

• If a seller knows why a buyer needs a product, they may demand a higher price or offer something more aligned with the buyer's expectations.

Emotional States in Negotiation

• Emotions play a significant role in negotiation tactics. Demonstrating genuine emotions like joy, sadness, or anger can influence outcomes.

• Joy can foster trust and empathy, while sadness might evoke sympathy. Conversely, anger may convey seriousness about one's position.

Tactical Approaches: Yielding and Submission

• One unique negotiation tactic involves "exposing the jugular," which symbolizes submission to stronger demands while appealing to the opponent's sense of justice or ethics.

• This approach mirrors animal behavior where one submits during conflict; it suggests vulnerability but also seeks fairness from the more powerful negotiator.

Dilemmas and Mutual Threats

• Presenting dilemmas—offering two options where one is less burdensome—can guide decisions favorably for oneself. This strategy often appears in conciliations where settling is preferred over lengthy disputes.

• Mutual threats are another tactic; these involve warning counterparts about potential negative consequences if an agreement isn't reached. However, these must remain within legal boundaries to avoid extortion claims.

By structuring your notes this way with clear timestamps linked directly to key insights from the transcript, you create an effective study tool that enhances comprehension and retention of negotiation strategies discussed.

Negotiation Tactics and Conflict Resolution

Understanding Sensitivity in Negotiations

• Emphasizes the importance of sensitivity when dealing with judicial servers and lawyers, particularly in conciliations and extrajudicial arrangements. Good arguments are essential to confront threats effectively.

Strategies for Addressing Threats

• Discusses the need to face threats without fear or ignorance, highlighting that negotiation tactics can involve presenting false advantages or disadvantages to influence the other party.

The Role of Time in Negotiation

• Explains how time management is a critical tactic for negotiators. They must plan how to manipulate time to their advantage, whether by setting ultimatums or requesting extensions based on various personal reasons.

• Provides examples of using deadlines as pressure points in negotiations, illustrating how urgency can affect decision-making.

Psychological Pressure Techniques

• Describes marketing strategies that create urgency (e.g., "limited stock" messages), which induce tension and prompt quicker purchasing decisions from consumers.

Conclusion on Negotiation Techniques

• Summarizes key aspects of negotiation: understanding its definition and characteristics, exploring alternative conflict resolution mechanisms, and identifying specific negotiation techniques used in practice.

Importance of Alternative Conflict Resolution Mechanisms

• Argues that not all conflicts can be resolved through state judges; a citizen's culture is necessary for employing alternative mechanisms effectively.

• Highlights that these mechanisms are vital for peaceful coexistence and participatory democracy, allowing individuals to engage directly in resolving their conflicts.

Self-Composed Justice

• Discusses self-composition as a form of justice where parties involved actively seek solutions themselves, reinforcing both peaceful coexistence and democratic participation.

Ethical Considerations in Negotiation

• Notes that while there are numerous negotiation techniques available, they must adhere to ethical standards, legality, and creativity within defined limits.

Reflective Practices in Conflict Resolution

• Stresses the importance of criticism and self-reflection among participants during negotiations. Acknowledging differences is crucial for effective conflict resolution.

Attitude Towards Conflict Resolution

• Encourages a proactive attitude towards utilizing alternative methods for conflict resolution. Everyone has the capacity to contribute positively toward resolving disputes creatively without escalating them unnecessarily.

Negotiation Techniques and Conflict Resolution

Importance of Negotiation Techniques

• The speaker emphasizes the need for effective negotiation techniques, particularly in difficult situations, highlighting the concept of "the best alternative to a negotiated agreement" (BATNA).

• Empowering individuals with these mechanisms is crucial for daily conflict resolution, aiming to prevent escalation.

Questions and Answers Session

Role of Alternative Conflict Resolution

• A question arises regarding whether alternative conflict resolution methods displace judicial functions; the answer clarifies that they do not replace but complement state justice.

• The speaker notes that while alternatives can reduce reliance on formal justice systems, they are essential due to insufficient judges to handle all societal conflicts.

Cultural Attitudes Towards Litigation

• The discussion shifts to why many prefer institutional solutions over alternatives, attributing this preference to a culture of litigation prevalent in Colombia and other countries.

• Despite this trend, there has been progress towards embracing alternative dispute resolution mechanisms in recent decades.

Challenges with Adhesion Contracts

• A question about adhesion contracts reveals their restrictive nature; these contracts limit freedom as they often come with pre-established terms that leave little room for negotiation.

• However, it is argued that applying alternative conflict resolution methods is still possible within these frameworks.

Conclusion and Final Thoughts

Emphasizing Human Skills in Conflict Resolution

• The speaker thanks Dr. José Alfonso Instancia de Ávila for his insightful presentation on alternative conflict resolution mechanisms during times of crisis.

• Concluding remarks highlight the importance of empathy, ethics, legality, and imagination in resolving conflicts effectively. A quote from Gautama Buddha reinforces the idea that love and understanding are key to overcoming misunderstandings.

Desire to Appreciate Others' Perspectives

Expression of Gratitude and Faith

• The speaker expresses a desire to appreciate the viewpoints of others, highlighting the importance of understanding diverse perspectives.

• Acknowledges gratitude towards those who contribute their thoughts, emphasizing community and shared experiences.

• Mentions a "distant faith" that seems to resonate with everyone, suggesting a universal connection or belief system.

• The inclusion of music indicates an emotional or reflective moment, enhancing the overall message about appreciation and unity.