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From social conflict to legal problem – and back again.

25 Basics of mediation (23)

What actually happens to a social conflict that is to be resolved by a judge? What demands are placed on the parties involved? This is the subject of the 23rd article on the basics of mediation. The focus will be on the transformation of the conflict.

 For the other variants of conflict management, see the article here. 

Once in the courtroom and back. The social conflict on its journey into the world of paragraphs.

The legalisation of conflict begins without lawyers, judges and paragraphs. It begins when the parties themselves reorganise their communication and want to be „right“.

The legal journey by no means begins with the entry into the court building. The (communicative, informal) legalisation of the conflict begins earlier, much earlier. It begins without lawyers, judges and paragraphs. As Luhmann's systems theory shows us, it begins as soon as the conflict parties themselves change their communication and argue in binary codes, e.g:

correct incorrect

lawful unlawful

allowed not allowed

right wrong

effective ineffective

Claim no claim

This transfer to the binary code of the law a miraculous transformation takes place: From a muchlayered social conflict system, whose communication structures are almost impenetrable for third parties, a binary communication structure peeled out. The social becomes either/or. Driven into the juridical-legal, a right-wrong communication structure is established, which ultimately turns the social conflict into a transformed into an objectified legal problem, that a third party can only decide on in the first place. To exaggerate slightly, it could be said that a third party can never decide a social conflict, but can decide a collectively defined problem. This role is assumed by the legal system that we have collectively agreed upon.

This transformation from a social conflict into a legal problem is something special. It is the result of a socialising historical process, a cultural achievement of mankind that cannot be overestimated. But let's take it in turn – and first take another step back. In order to understand what exactly has to happen when a social conflict is transformed into a legal problem, two aspects are crucial: Language and reduction.

Law as a foreign language

Before right and wrong can be decided in court, the conflict must be worked out from its social context in its essential elements and first of all translated into one language which the third party (here: the judge) understands.

It is easy to check that it really is a foreign language. Take any judgement and read it in full. If, after reading it three times, you know what it was about in detail, you are either a natural or a trained lawyer.

Most people would have to take a six-year language course before they understood a judgement, or at least claimed to understand it. Or to keep the thought short: Lawyers are not simply the mercenaries of their clients who fight for justice for them, but first and foremost interpreters. However, they rarely go to the trouble of translating in practice; the effort involved is simply too high.

Claim, application, day-to-day work – "Who wants what from whom and from what?"

This question is the starting point of civil law case processing and every judge must face it. What the plaintiff wants is taken from the statement of claim, which always contains a "specific request" (Section 253 (2) no. 2 ZPO). The application requirement requires the plaintiff to position himself in court, which he has usually already done in the pre-trial dispute in a legal or lay capacity. This unambiguous positioning, requesting the other party, is a mandatory prerequisite for the dispute decision. The procedural application forms the basis of the decision and is based in substantive law on a claim as regulated by Section 194 of the German Civil Code.

(This regulation is in fact one of the great inventions of 19th century German jurisprudence and was developed by the influential Leipzig Professor Bernhard Windscheid has been significantly developed. Today, it can be found in many civil legal systems around the world. Sometimes order is original).

It is important that the parties involved not only put the judge in a position to decide the transformed conflict with the application, but that they also limit it in this respect. Those involved in the conflict are not completely incapacitated in court, as is sometimes claimed. They have considerable influence and exercise it on their own responsibility.

The fact that the law is then disputed in court practically leads to a new conflict over the correct understanding of law and justice. This conflict over the understanding of the law, conducted by the parties' legal advisors, is a civilising proxy conflict because it excludes violence between the original parties. This is the great cultural achievement of mankind.

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Transformation = reduction and increase in complexity

On the one hand, the transfer of social issues to the judiciary is frustrating for those involved because many things that seem important to them fall by the wayside. But this is necessary so that the judge can decide. The reduction in social complexity is offset by an increase in legal complexity. The legal system is increasingly characterised by complexity, not only because it is a communication system, but also because it is now completely differentiated. The focus on the legal relevance of the social is balanced by the diversity of the depth and breadth of the legal system. For those particularly interested here, these intertwined processes will be described in more detail.

The transformation of a social conflict into a legal problem means first and foremost: Reduction of social complexity.

The law is not interested in everything social. Lawyers are therefore not interested even when they are dealing with a case.

The conflict, which is characterised by at least two The legal problem, which is activated and supported by conflicting points of view, is nourished by a multi-layered, constantly shifting system of relationships made up of interests and needs. This network is summarised as a legal problem. This is because the law as a social yardstick serves to ensure that the parties, as part of the social system, must orientate themselves to it. This orientation function is reflected communicatively in the code of right/wrong with which the legal system operates. From a multitude of possible standards, the one that captures the code that the legal system calls its own with right/wrong is selected. Standards of well-being or feasibility, of what is affordable or morally justifiable play a subordinate role here. They fall through the communicative net of law or are themselves transformed into right/wrong content.

How does the legal system deal with the conflict after the transformation?

Legal propositions are decision programmes (Conditional programmes). Communicative algorithms, so to speak, which represent an if-then structure. The third party appointed to make the decision turns The judge applies the facts of the case - which are relevant from a legal point of view - to the resulting legal norms relevant to the decision. This is theoretically very technical, even if judges are nevertheless not „automatic subsumption machines“, as was feared in the 19th and 20th centuries. As human beings, which judges are, they cannot be automatons. But perhaps artificial intelligence that has sifted through all legal judgements „ will soon show us that our decisions have been very exemplary. But that's another story.

However, the assignment of the conflicting facts to the legally specified characteristics not only leads to a decision, but also to an increasing structure of legal norms and decisions derived from them, which in turn have an effect on the system of norms. This is precisely what differentiates it. Law is alive, develops on the basis of decisions and leads to a constant branching, specialisation and deepening of the legal system. Complexity increases if decisions are to be made in a legal mode that is socially accepted.

The one-sided perspective on the social conflict (right/wrong) is, on the one hand, the solution mode for dealing with social complexity. On the other hand, it is the starting point of the problem from which the complex legal system has developed. This can be explained in terms of systems theory. The legal system deals with social complexity by reducing this complexity. To do this, however, it must build up its own complexity.

Mediation takes a different approach to social conflict.

In the courtroom, the law takes control of conflict definition and communication, mediation, for its part, makes it possible to address all social and individual needs and interests and to maintain them in conflict communication. It therefore remains more individualised, but also more complex in terms of form and content.

This inevitably means that the mediator cannot decide the conflict! He does not overlook the complexity, cannot evaluate what has not been trimmed to an objectified standard for third parties. His refusal to make a decision is based on his inability to make a decision. From the point of view of the legal system, this may represent a lack of certainty, but it opens up new possibilities for those involved.

The price of the right = alienation effect

The parties pay with the „Versimplification of their conflict“ They paid the price of not being able to resolve their conflict on their own and prevent a socially contagious escalation. This "subordination" of the social life situation leads to a Alienation effect of those involved in the conflict. The own Life and conflict situation is processed one-sidedly and often alienated. All the not decision-makingConsiderable speeches by the parties are filtered out by the legally trained ear. The judge only speaks one language: "legal". And what is legal and relevant to the decision is sometimes different from what is relevant to the conflict for the parties involved. Legal Decision therefore needs this social foreshortening.

The way back

However, the journey is not over at this point. We have accompanied the conflict to court and observed its transformation into a legal problem. But just as the path to justice does not begin with entering the courthouse, the journey does not end in the courtroom either.

What happens to the social conflict once the judgement has been pronounced and the courtroom doors close behind it? At this point it comes again to a transformation. Only now it is the Legal solutionThe "product" of the legal system, so to speak, which must be transformed so that it can also unfold its effect in the social sphere. It is important to realise that this step of the re-transformation is the sole responsibility of those involved in the conflict. The judge can solve the legal problem with his decision. The question is whether this solution also resolves the social conflict, However, only the parties involved in the conflict decide for themselves. Depending on whether they consider the judgement - measured against their overall social situation - to be convincing or not, they will settle or maintain the social conflict.

In the latter case, the delegation was not successful as a conflict management method, which can, but does not have to, exacerbate the conflict. This is because the law does not tolerate an escalation at least to the point of violence. After all, the decision-making power of the state judge is based on the state's monopoly on the use of force. In concrete terms, Even if the parties involved do not accept the judgement, the state also sets limits on how conflicts can be resolved!

Court proceedings are (not) zero-sum games!

Under game-theoretical aspects court proceedings were regarded as "zero-sum games". One person's gain is another's loss. However, public judgements can represent a (not inconsiderable) "added value" for society. They offer orientation, differentiate the common legal system and therefore create added value. However, this is rarely relevant for the parties involved. If you want to be right for yourself, you have to (have to) attribute injustice to your conflict partner. There is no „more justice“ for those involved in the conflict, but there is for the larger social system.

Conclusion: The legal handling of conflicts requires a transformation of the social into the legal and back again. The legal system creates added value by helping universally valid social norms to take effect, thereby creating an important point of reference for society as a whole. The actual parties to the conflict often experience these „motives“ as alienation and a lack of understanding. Mediation may make this possible, but it cannot be realised without personal involvement. This is the challenge facing the parties to the conflict.