DOI: https://doi.org/10.62204/2336-498X-2025-2-11

PSYCHOLOGICAL FACTORS OF RECONCILIATION IN THE JUDICIAL PROCESS: FROM REDUCING CONFLICT TO SUCCESSFUL MEDIATION

Anna Pakhomova,
Ph.D. in Law, Associate Professor,
Bila Tserkva National Agrarian University, Ukraine,
pakhomova_a@ukr.net; ORCID: 0000-0003-2292-9315

Inna Kovalchuk,
Ph.D. in Law, Associate Professor,
Bila Tserkva National Agrarian University, Ukraine,
kovalchuk.inn@gmail.com; ORCID: 0000-0002-1804-4189

Annotation.The article outlines the social significance of the issue of determining the individual-personal factors of the success of the application of conflict resolution technology in pre-trial dispute resolution. The successful application of out-of-court conflict resolution technologies in civil and commercial litigation largely depends not only on the effectiveness of the tools and methods themselves, but also on the individual-personal factors of the subjects of the conflict, as well as the professionalism and psychological awareness of mediators. These factors determine the ability of an individual to effectively use existing technologies, adapt to different situations and achieve constructive results in the process of pre-trial settlement of private disputes.

Keywords: mediation, out-of-court dispute resolution, conflict resolution technologies, conflict psychology.

Analysis of Recent Research and Publications. One of the priorities and key areas of legal reform in the context of Ukraine’s integration into the European Community is to improve the efficiency of civil proceedings in order to ensure everyone’s right to a fair trial, as enshrined in paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms [1]. Accordingly, at the present stage of development of the Ukrainian independent state, such alternative methods of resolving civil law disputes as international commercial arbitration and mediation are becoming increasingly common, which, on the one hand, allow to relieve the judicial system and increase its efficiency, and on the other hand, diversify the forms of protection of violated, unrecognized or disputed rights, freedoms and interests of individuals in accordance with the international standard of access to justice, which today is understood as the state’s obligation to ensure access not only to the courts It is difficult to define mediation in a short and unambiguous way. This is because mediation is not a single phenomenon, but a whole range of different approaches. It can differ depending on where it is used, how it is conducted, what results are expected from it, and what goals and functions it is supposed to fulfill. In addition, difficulties in defining mediation arise because it is important to understand the role of the mediator, i.e., how actively he or she should participate in reaching an agreement. The question of whether mediation can be conducted in court or during the trial itself remains open.

In no European country are parties to a conflict obliged to resolve their civil or commercial disputes through mediation or any other means of alternative dispute resolution. Settlement of a dispute through mediation is completely voluntary also considering the fundamental right of access to a court (Article 6 ECHR).

For obvious reasons, the best way to resolve a conflict is to attempt mediation before litigation. Avoiding litigation is cost-effective and prevents the courts from being overburdened with an excessive number of cases. In addition, mediation before the trial means that the relationship between the parties to the dispute is still good, which increases the chances of a settlement.

In contrast, litigation usually leads to a deterioration of relations due to its adversarial nature. Therefore, it may hinder the settlement. In connection with the introduction of mediation in Ukraine, a special Law of Ukraine No. 1875 «On Mediation» dated 16.11.2021 was adopted, which defines the legal basis and procedure for mediation as an out-of-court procedure for resolving a conflict (dispute), the principles of mediation, the status of a mediator, requirements for his/her training and other issues related to this procedure. Clause 4 of Part 1 of Article 2 of the said Law contains a definitional construction of mediation. The latter is understood as an out-of-court voluntary, confidential, structured procedure, during which the parties, with the help of a mediator (mediators), try to prevent or resolve a conflict (dispute) through negotiations. Subscribe to DeepL Pro to edit this document. Visit www.DeepL.com/pro for more information.

Mediation in civil law conflicts is also regulated by the following codified acts, in particular:

The Civil Procedure Code of Ukraine. Thus, at present, during the preparatory hearing, the court also finds out whether the parties wish to enter into a settlement agreement or conduct an out-of-court settlement of the dispute through mediation (Article 197). If the parties express such a desire, then the court is obliged to suspend the proceedings at the request of the parties.

The Commercial Procedure Code of Ukraine. During the preparatory proceedings, the court finds out whether the parties wish to settle the dispute out of court through mediation (Article 182).

At the same time, the question arises whether mediation is a self-sufficient procedure for a deep conflict resolution. Sometimes, the parties may need not only a mediator, but also a specialist with in-depth knowledge of psychology. In such a context, the psychological aspects of mediation are of particular interest, including the ability of the mediator to effectively manage the emotions of the participants. The study of this topic is important because a mediator with psychological knowledge can create an atmosphere conducive to reconciliation, reduce emotional tension, and increase the chances of a successful conflict resolution.

It is also important to identify the psychological factors that influence the reduction of potential conflicts in order to develop an effective strategy for the mediator’s behavior in the process of reconciliation.

Regardless of the aspect of mediation, the key functions of a mediator are: establishing social contact between all parties; building a constructive dialogue between all parties; stimulating a sense of solidarity between the parties; rationalizing the confrontation between the parties; reducing aggression and expectations of the parties; restoring social trust between the parties; helping the parties to specify their positions; assisting in identifying and verbalizing important points in favor of the parties; maintaining and interpreting negotiation protocols; organizing the mediation process, including documenting.

The essence of the difference between the mediation procedure and the court procedure is largely determined by the way the mediator acts: he or she considers all the circumstances that became known during the mediation, pushing the parties to an independent and mutually acceptable resolution of the dispute, remaining in the role of an observer and helping to find options. A judge or arbitrator, on the other hand, decides based only on a legal assessment of the actions that led to the dispute, abstracting from the consequences of the decision for both disputing parties, and offering a ready- made solution to the parties to the dispute. However, the main place in this process is occupied by the concept of conflict and its preconditions. Characterizing and identifying psychological factors that influence the reduction of possible conflicts in litigation is the basis for high-quality pre-trial resolution of civil and commercial disputes.

The results of the theoretical analysis of various publications and research works related to the above-mentioned issues are the identification of a number of psychological features, traits, and personal qualities that to some extent affect the reduction of the personality’s conflict and the likelihood of destructive conflict development. Thus, according to recent studies, such indicators as character traits, temperament, balance, the degree of expressiveness of affective behavior, professional and personal qualities can be considered as the main factors that reduce the likelihood of the appearance and development of conflict.

Speaking of conflict, we understand it as a clash of oppositely directed, incompatible tendencies in the mind of an individual, in interpersonal interactions or interpersonal relations of individuals or groups of people associated with acute negative emotional experiences.

It is almost impossible to find several people with the same taste (in music, movies, literature, etc.), habits, and circle of interests, which is the reason why disagreements will inevitably arise in the relationships of several or more people, which can lead to the emergence of a conflict situation and the conflict itself.

In the scientific literature on conflict psychology and conflictology, the following are conditionally distinguished: constructive, destructive, conformist, active and passive strategies of behavior in conflict [2]. However, many researchers studying styles in conflict use the K. Thomas – R. Kilmann grid as a basis. They have identified the following styles: competition (competition), avoidance, cooperation, accommodation, and compromise, which we have already mentioned above.

When considering the personal causes of conflict, researchers look at the individual characteristics of a person.

Many scholars have described the causes of conflicts and their relationship with personal characteristics. They define the natural components of a personality, its individual psychological parameters, values, motives, interests, internal representation of the personality, self-esteem.

Natural components are understood as temperament, dynamic personality traits, and activity. A set of motives, needs, and interests, as a rule, explains decisions and styles of behavior in a conflict. Motives are understood to mean internal motivating forces that are the «triggering» mechanisms of conflict. It is also emphasized that inadequate self- image forms psychological barriers and conflict behavior.

S.L. Grabovska [3] has made a significant contribution to the development of psychology in conflict and has identified three types of psychological orientations in her research, which are a key link in the choice of behavioral strategies in conflict. Cognitive orientation refers to a set of ideas or expectations that help an individual make decisions in situations at the cognitive level. With the help of cognitive orientation, a person is able to make decisions only at the level of «for» or «against» each other. When conflict situations arise, a person unconsciously develops negative tendencies in perceiving opponents, such aggressive reactions as «hostility» and «suspicion» arise, as well as psychological closeness, another person is perceived exclusively as an opponent, etc. The main characteristics of cognitive orientation are determined by two needs: the need for aggression and the need for protection. S.L. Grabovska also identified moral orientations when choosing strategies of behavior in a conflict. Moral orientations are associated with mutual obligations and rights of people, and it is assumed that relations are viewed from the standpoint of both individual capabilities and social ones, with the aim of establishing social relations. In interpersonal interaction in cooperative situations, there is an effect of acceptance of opponents and mutual respect [3, p. 201].

Despite the prominence of Thomas-Kilman’s classification of conflict behavior strategies [2], in practice and in the literature, the ability to reach a compromise is often presented as the highest degree of skill and success in negotiations and conflict management. This is coupled with the notion that «cooperation» in the sense of Thomas- Kilman is a theoretical abstraction that is unattainable in real life [2]. Many see the difference between these strategies only in the quantitative aspect.

The problem of unclear understanding of the fundamental difference between cooperation aimed at satisfying interests and compromise based on positional bargaining cannot be solved without clarifying and differentiating the concept of «interest».

In most definitions of individual characteristics in conflict resolution, the term

«interest» is used directly, while in others it is implied. Conflict resolution – a clear end to the confrontation between the parties, unlike other methods of conflict management – is ensured by maximizing the interests of opponents. Other forms of conflict management also inevitably involve taking these interests into account, since ignoring them leads to an escalation of hostility [4, p. 71]. At the same time, the concept of «interests» is used ambiguously by different authors. The works of Arthur Reber recognize that the term «interest» is still used purely intuitively [5].

In psychology, in the context of conflict resolution, one can find a large set of concepts: desire, craving, need, goal, curiosity, motivation, motive , etc. According to

1. O. Sudarkin [6 p. 241], there is no generally accepted classification of motivating forces in conflict. The notion of interest in a conflict is either implied or even taken for granted, remaining undefined. There are two main directions in understanding interest: cognitive and general motivational. In the conflict studies literature, the understanding of this category is broader, but still ambiguous. It emphasizes the connection between interest and conflict and adds a social aspect.

Research results. The effectiveness of the use of mediation depends on: the desire of the parties to reach a mutual agreement and continue cooperation and/or save time and money, the degree of mutual respect between the parties, the qualification of the mediator (the adequacy of the tactics and techniques used to the specifics of the specific situation), the complexity of the disputed issue, the duration of the procedure itself, the duration of the conflict (long-standing conflicts are generally less amenable to settlement than recent ones), the nature of the parties’ relations (their complexity is directly proportional to the complexity of mediation).

The use of the institution of mediation in resolving conflicts arising from civil and economic legal relations creates conditions for reducing the general level of conflict in society and the workload of the judicial system, as well as increasing labor productivity and employment of various social strata of society. First of all, this is explained by the diversity (including, due to the departure from the formalized regulatory and legal approach inherent in the classical judicial system) of methods for resolving labor disputes, which the mediation procedure provides to the participating parties.

However, one should not forget that the basis of a material dispute is also a conflict that has purely psychological characteristics. And it is precisely the understanding of the individual and personal factors of the success of the application of conflict resolution technology that gives impetus to effective mediation as a method of pre-trial dispute resolution.

Conflicts should be constructive, pushing people to find new solutions, unusual methods of achieving their goals, helping them to leave their comfort zone, open up to new experiences, consider the interests of others, and change for the better. In order to prevent a constructive conflict from turning into a destructive one, participants in the process of resolving it should not move from confrontation to a struggle of ambitions and humiliation of the weak by the strong. Very often, the optimal solution in a conflict situation is a compromise, mutual recognition and agreement with the desires and personal benefits of both parties, and further, thanks to the compromise, the conflict can develop into mutually beneficial cooperation.

Often, during a conflict, people are guided not by reason but by emotion, which can lead the participant(s) to a state of affect, a short-term outburst of emotional excitement that entails rage, anger, despair and other negative emotions that are partly responsible for being uncontrollable. Such behavior can lead to irreparable consequences, leave indelible imprints in the memory and consciousness of both yourself and the person to whom the flurry of negativity will be directed.

Many researchers associate the emergence of conflicts with psychological parameters, with a divergence of interests and motives in the activities of opponents [7,

1. 1554]. The choice of a behavioral strategy in a conflict situation may be influenced by various factors, such as psychological characteristics, the duration of the conflict, what consequences this conflict situation may have, depending on how significant the conflict situation is for the opponent, the availability of resources, etc.

The following definitions can be found in various sources: «the goal is a subjectively defined need»; «the motive is a subjectively defined need»; «interest is a subjectively defined need». However, this does not mean that there is no difference between these concepts.

In matters related to conflict, Maslow’s hierarchy of needs is most often used. Classifications of motives are built within one party [8, p.72]. Classifications of goals are closer to working with conflict as a variant of interaction but are limited to the perceived aspects of the situation and are incomplete.

Given the lack of certainty in understanding the term «interest» and its relationship with other concepts, most scholars recommend:

1. To use the word «interest» as a generic concept that includes more private definitions of the driving forces in the conflict, while distinguishing different levels of
2. To make a deeper differentiation of the concept under discussion in terms of interaction between the parties, as this makes it impossible to use it as a real tool in conflict management.

We can also offer the following understanding of the interests of the parties in a conflict:

1. Interests are the motivating force behind the parties’ entry into a conflict, determining their further behavior in it.
2. Interests differ according to several criteria:

The degree of openness to the other party;

• by the awareness of the party pursuing them;
• by the breadth of the field of possibilities of satisfaction (objectification);
• by the depth and, accordingly, flexibility, ease of refusal or

According to these criteria, the following levels of interests in a conflict can be distinguished:

Declared interests represented within the position: open; conscious; the narrowest and most superficial; having the greatest flexibility and possibility of change compared to other levels;

• interests-goals – often initially hidden, partially reflected in the position; conscious; broader and deeper; less flexible than only at the level of «stated interests»;
• interests-motives – more hidden; not fully realized; broader and deeper; less flexible and prone to change than at the previous levels;
• interests-values – more hidden and less conscious, wider and deeper than at the previous levels; practically not subject to change within the current conflict;
• interests-needs – the most hidden; the least realized; the broadest and deepest; inflexible, especially hard and urgent in case of their deficit nature [9, p.201].

In the areas related to conflict resolution, common interests of the parties are usually emphasized and the importance of their realization and use to create a principled basis for agreement is emphasized. However, the existing notion of common and conflicting interests is clearly not enough.

Therefore, it is quite often necessary to differentiate the interests of the parties in terms of interaction between them, since without this it is impossible to identify a real basis for conflict resolution. The sequence of types of interests does not necessarily correspond to the order in which they are identified in the process of conflict resolution.

According to this typology, the parties to a conflict may have:

1. Common This is the only solid basis for a constructive solution to the problem. However, identifying such interests is not usual and easy in a conflict situation. As the conflict escalates, irrationalization of behavior increases, the vision of the situation narrows, and the polarization of positive (own) and negative (other) qualities increases [10, p. 242]. It is important to show the parties to the conflict that it is beneficial for them to overcome the reluctance to have anything in common with their opponent and to build a strategy of behavior in the conflict depending on the closeness of interdependence between the parties.
2. Homonymous interests (or paronyms), respectively, are equally or similarly defined by the parties, but not identical, and define different For example, each of the conflicting parties can say in one form or another that they are outraged by the fact that they have been treated without due respect. Thus, we can state that both parties have an interest in «respect». At the same time, this is not the same thing at all, because for each of the parties to the conflict, respect for him or her is important. Identification of these interests on both sides helps them understand the reasons for each other’s behavior and shows that there are certain similarities among them. This helps to overcome the emotional isolation of the parties from each other, to reduce the impact of communicative distortions in the conflict [11, p. 101].
3. Different interests, but those that do not contradict each other. The interests of the third type (different, but not contradictory) directly affected by conflicts of interests include the interests of one party that are violated because of the conflict party, which are either indifferent to the other party or do not relate to the essential aspects for it. Ignorance of such interests leads to mutual resentment, a sense of injustice, and unjustified opposition to reasonable positions that each party considers to be its own. Identifying interests of this type opens up broader possibilities for agreement and creates a favorable atmosphere for interaction.

Various interests that are not directly related to the current conflict seem to be irrelevant to the specific conflict situation. However, awareness of such interests allows for the activation of resources that can be of interest to the other side, demonstrating goodwill and establishing relationships that are conducive to an agreement. In addition, discussing such aspects often leads the parties to recognize additional common interests.

It is also important that reaching an agreement to satisfy the third type of interests is usually either not difficult or much easier than interaction in areas of contradiction. The experience of reaching an agreement shows the possibility of success in solving the problem and sets the parties to a constructive mood.

4. Conflicting interests. They seem to be the reason for the conflict. They are the ones that lead to a dead end in the parties’ attempts to cope with the situation. The interests of the three previous types, once properly identified, most often do not create problems in their satisfaction when the parties are in a positive mood. Therefore, the wording of these interests can usually remain close to the original understanding.

This approach does not work for interests of the fourth type. It is to these cases that the recommendation to move from the level of different positions to the level of important interests applies. Here we come to the need to reformulate the initial positions and distinguish between deeper interests (from the level of «interest-goal» to the level of «interests-needs») and interests-positions. The latter are formed from superficial, sometimes momentary, desires, intentions, etc. At the same time, they are usually illusively perceived by the parties as vital requirements that must be met.

Thus, it is important for a mediator to understand when exactly there is a need to use the concept of «interest» in the narrow sense of the word – as a motivating reason, usually not fully realized by the parties, but determining their behavior, which leads to the emergence and escalation of a conflict.

Conclusions. To summarize, civil law conflicts are a complex socio-psychological phenomenon that requires specialized approaches for effective resolution. Traditional judicial mechanisms do not always provide optimal conditions for resolving such conflicts, which necessitates the use of alternative methods, including mediation.

Therefore, it can be concluded that the effectiveness of mediation in civil and commercial disputes largely depends on psychological factors that affect the process of communication and decision-making. Taking these aspects into account allows creating optimal conditions for reaching a mutually beneficial solution and minimizing the negative consequences of civil law conflicts.

Emotions in conflicts can be both negative (anger, fear, resentment) and positive (sympathy, optimism). However, both types of emotions can both help and hinder reconciliation. Negative emotions often block communication and deepen conflict, while positive emotions, while promoting trust, can sometimes arouse suspicion or distrust if perceived as insincere. In general, emotions are a powerful tool that can both promote reconciliation and hinder it, depending on the context and the mediator’s ability to manage the emotional atmosphere.

However, it is worth realizing that the successful psychological work of a mediator also depends on additional conditions. First, all participants in the conflict must be motivated to participate, be willing to openly discuss the essence of the dispute, be able to listen carefully to the opponent and make a considered decision. Since mediation is a voluntary procedure, it can only take place if the parties are willing to negotiate with a real intention to reach an agreement. Voluntariness also means that either party or the mediator can terminate the process at any time without giving reasons or, by mutual consent, resume it (the principle of voluntariness).

Mediation is a highly effective method of conflict resolution that offers several key advantages. Its inherent characteristics, such as confidentiality, voluntary participation, flexibility of approach and the independence/impartiality of the mediator, create a conducive environment for constructive dialogue. Moreover, mediation allows the parties to save time and, no less importantly, to preserve their reputation, image and relationships. These aspects are crucial for maintaining a productive reconciliation process and achieving mutually beneficial solutions.

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