Conciliationis is an additional step proposed in the dispute resolution process.
The conciliator meets with the parties separately at a so-called pre-caucus. The purpose is to help each party release their pent up concerns enough to enable them to gain a broader perspective on the dispute.
The parties then meet together at a joint session, where they discuss directly with each other instead of through a mediator.
The conciliator is there to help the parties take responsibility for managing their own conflict, rather than to judge between the merits of the position of one party or the other.
The Bill of Rights are first ten amendments to the U.S. Constitution which guaranty personal freedoms and limit governmental powers. The Sixth Amendment states:
„In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.“
The following part of the Sixth Amendment is named the confrontation clause: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”
The Confrontation Clause has its roots in both English Common Law, protecting the right of cross-examination, and Roman Law, which guaranteed persons accused of a crime the right to look their accusers in the eye.
According to the Bible, Acts 25:16, the Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.“
The Salem Witch Trials (1692–1693): Over 200 people were accused of witchcraft in Salem, Massachusetts, and brought before magistrates in public hearings. Accused individuals had to defend themselves directly against the charges, often in front of their accusers and the community. This event exemplifies the American tradition of confronting one’s accusers and making a public defense.
Judge: To form an opinion through careful weighing of evidence and testing of premises; to sit in judgement of, to try; to determine or pronounce after inquiry and deliberation; to govern, rule; to form an estimate or evaluation of; to form an opinion; to decide as a judge. Middle English juggen, from Anglo-French juger, from Latin judicare.
Mediate: Occupying a middle position; acting through an intervening agency; exhibiting indirect causation, connection, or relation. From Late Latin mediatus intermediate.
Fact: A thing done; the quality of being actual; something that has actual existence; an actual occurrence; a piece of information presented as having objective reality. From Latin factum.
Witness: Attestation of a fact or event; one that gives evidence; specifically: one who testifies in a cause or before a judicial tribunal; one asked to be present at a transaction so as to be able to testify to its having taken place; one who has personal knowledge of something; something serving as evidence or proof; public affirmation by word or example of usually religious faith or conviction. Middle English witnesse, from Old English witnes knowledge, testimony, witness, from wit.
Testimony: The tablets inscribed with the Mosaic law, the ark containing the tablets; a divine decree attested in the Scriptures; firsthand authentication of a fact; a solemn declaration usually made orally by a witness under oath in response to interrogation by a lawyer or authorized public official; an open acknowledgment. Middle English testimonie, Latin testimonium, from testis witness.
The O.J. Simpson Trial (1994–1995): Known as the “trial of the century,” this highly publicized courtroom drama saw both prosecution and defense present their cases openly, with the accused and accusers present. The trial was televised, and the process was marked by direct confrontation and cross-examination, embodying the American value of open, adversarial hearings.
The Sixth Amendment states: „In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, ….“
For Americans, whether in the legal system or in the workplace, the right to a hearing is fundamental. The hearing allows for the parties in conflict to make their arguments and counter-arguments. It is the beginning of the formal process of conflict resolution. Americans expect the team lead to call a hearing quickly.
In a fair hearing the conflict parties have the opportunity to present evidence – including witnesses – and to discover what evidence is brought against them. The hearing also allows for questioning (cross-examination) of the opposing party‘s witnesses. A hearing is only fair if it is administered by an impartial third party.
In the American business context the manager, as judge, may resolve the conflict based on those arguments and counter-arguments, or use the hearing as a basis for further investigation into the reasons for the conflict.
Because American managers are responsible for the results their teams produce, they focus on maintaining internal team cohesion. Conflict of any kind threatens cohesion. After having learned of an internal conflict, American managers are inclined to call the conflict parties together at very short notice. That first hearing is direct, informal and personal. The manager wants to „get to the bottom of the problem.“
There is a long history of witness testimony being given an excessive amount of weight in American trials. One prominent example of this is the Salem Witch Trials.
In January of 1692, two young girls (9-year-old Elizabeth Parris and 11-year-old Abigail Williams) from Salem Village, Massachusetts, began having fits, including violent contortions and uncontrollable screaming. Although a modern study suggests that these fits were the result of the children consuming the fungus ergot, which can be found in rye, wheat, and other cereals, at the time, the local doctor diagnosed bewitchment. Shortly thereafter, other young girls in the community began to exhibit similar symptoms, and three local women were arrested after the girls accused them of witchcraft.
Two of the women denied using witchcraft, however, the third, Tituba, a slave from the Caribbean confessed, probably hoping to save herself by acting as an informer. As part of her confession, Tituba claimed that there were other witches in the community that had acted alongside her.
This led to mass hysteria within the town of Salem, and soon many more people had been accused of and arrested for witchcraft. In the trials that followed, the primary evidence that was used for a conviction was witness testimony. In fact, some of the witness testimony that was presented wasn’t given by people who had seen the accused practicing witchcraft, but by people who had had dreams or visions of the accused practicing witchcraft. Altogether 19 people were hanged for witchcraft, 7 accused witches died in jail, and one man was pressed to death by stones for refusing to plea.
Eventually the trials were deemed unlawful, and in 1711 Massachusetts Colony passed legislation that restored the good names of those convicted of witchcraft, as well as provided financial restitution for their heirs. In 1953, Arthur Miller used the Salem Witch Trials as the basis for his play “The Crucible,” which he published during the Red Scare (a time of growing fear against communism during the 1950s) in an attempt to remind Americans not to rely primarily on witness testimony when judging innocence or guilt.
Litigious: To be litigious means to argue, to contend, to take your dispute to the courts. American society has become very litigious. With a population of roughly 310 million people, the U.S. has 1.2 million attorneys, 200 law schools, graduating approximately 45,000 lawyers each and every year. The court of law is where conflict is resolved.
How conflict is resolved is foundational to any society. It is a system for balancing out conflicting interest. Conflict resolution is so central to our daily lives, in so many or our interactions, that we are continuously fascinated by how they play out.
This fascination is the reason why many movies and television shows are based on the law and legal proceedings. Among the most popular in the U.S. were: L.A. Law (1986-94), the classic Perry Mason (1957-66), The Defenders (1961-65), Law & Order (1990-2010).
The popularity of these shows has led to the reality court room shows, a combination of reality television and the workings of the American legal system. The best known are Judge Judy, The People‘s Court and Divorce Court.
Eyewitness testimony is the account a bystander gives in the courtroom, describing what that person observed that occurred during the specific incident under investigation. This recollection is used as evidence to show what happened from a witness’ point of view.
Memory recall has been considered a credible source in the past, but has recently come under attack as forensics can now support psychologists in their claim that memories and individual perceptions are unreliable; being easily manipulated, altered, and biased.
Many U.S. states are now attempting to make changes in how eyewitness testimony is presented in court. Eyewitness testimony is a specialized focus within cognitive psychology.
The German State of Thüringen (Thuringia) analyzed aspects of its judicial system. It recommended that magistrates (judges) hold separate hearings with the parties in conflict. Separate hearings are considered to be “besonders hilfreich” – especially helpful.
Many attorneys were quoted praising the advantages of separate hearings: “loose, relaxed atmosphere; room to discuss matters other than the conflict itself; each side feels they are taken seriiously; an opportunity to present one’s viewpoint without the other party attacking it; creates a constructive communication climate.”
One of the magistrates underscored the value of holding separate hearings: “For me the most important part of the mediation is the hearing with each party separately. Points are made which are very important to the respective conflict party, points which helped me to better understand the nature of the conflict and which led us to a breakthrough.”