In Chile in recent years, its citizens have been increasingly empowered. This has occurred in the hands of a relatively uninterrupted cycle of relatively high growth for no less than 27 years that has allowed unprecedented expansion in consumption of goods. In addition, our institutionality has been transformed into one in which greater rights are recognized to the people and in which the State has explicitly assumed its financing. Paradoxically, despite the extraordinary progress we have undergone, we are going through an era of marked mistrust and certain institutions are frankly fatigued and in need of renewal.
By the way this is not new. Already in 2009 the UNDP Human Development Report in Chile concluded that one of the great challenges facing our country is to change the way we do things. This forces us to put the focus of attention on social relations: negotiations, conflicts, exchanges. In other words, the concrete practices by which people achieve their ends. More than environmental problems that have to do with issues such as quantity and quantity of infrastructure, coverage and access to certain goods, these are problems with the logic of action, how things are done. In the latter three major forces interact: institutions, subjectivity (preferences and expectations) and practical knowledge.
Social practices have a strong inertia and resistance to change. Along with this new society new conflicts have also emerged. In a broad sense, conflicts are the consequence of the nonviolent actions that some realize to capture assets of others through a variety of means that include theft, threats, fraud, defaults, lawsuits, limitations or exclusions Of competition, etc. For some time the streets, courts and regulations have replaced the rational and serene negotiation that is the one that allows people to reach sustainable and long-term agreements.
To paraphrase the celebrated Nobel Prize for Economics, Ronald Coase, it seems that in Chile transaction costs understood as those associated with negotiating and agreeing make many processes unviable, causing the conflict to be channeled through these other channels. Obviously, the solutions that are generated in those spaces are less efficient than those that result when people negotiate.
Both the judicial and regulatory channels have important limitations, but sometimes they are the only available route. The judicial route is eminently adversarial and as such generates consequences beyond the object of the dispute. It is argued that unlike other means of dispute settlement, judicial proceedings offer or appear to offer the aggrieved party the possibility of meeting five aspirations: / i / a sense of revenge; / Ii / a sense of empowerment; / Iii / the possibility of being heard publicly; / Iv / a sort of certificate of legitimacy to their dispute; And, / v / the desire that justice be done in a manifest and concrete way. That is why people take them in an emotional rather than rational way and are willing to risk losing to prove that they were right. It is the human combination of wanting to win and seeing your opponent lose and that makes them willing to endure not only the cost of litigation but also the risk of losing.
On the other hand, as the quantity and complexity of our social relations increases, we are more likely to encounter imperfect, incomplete, or imprecise rules and agreements. And as risks increase, contingency fee schemes become more frequent. However, a conflict that reaches the courts means delegating its resolution to a third party outside the parties with biases, preferences and knowledge that are very different from the ones they have.
This increases the conflict, increases the uncertainty about its outcome and forces the contenders to transfer a large amount of information to the one who must resolve it. In addition, the judge may simply be wrong. And although through the arbitration the parties try to avoid the costs of litigation derived from the high congestion that in general present the ordinary courts and the uncertainty associated with the lack of knowledge in specific and complex matters, the solution of the same also falls In the hands of a third party and not in them. Something similar happens when it is the regulation that settles a conflict by better recognizing one interest group over another.
In short, we need to change our practices and one of the most important is how we negotiate to resolve our differences. If we do, we will greatly reduce the costs of conflict and take important steps in the generation of an indispensable collective good that is trust. For that to happen, we must approach the conflict with a different view, with greater knowledge, considering its various facets, anticipating him acting in an early manner incorporating the community and relevant actors and devising new instruments and mechanisms that encourage agreement in place To stimulate divergence. The recent outcome of the dispute between Codelco and Anglo is a good sign that achieving an agreement is possible. The challenge is to develop best practices and negotiation skills.
Juan Pablo Bórquez Yunge, November 2012.