Mediation. Alain Lempereur

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СКАЧАТЬ (with the objective of evaluation in the light of the law; Fruchter 2019) and mediation‐arbitration, or “Med‐Arb” (Baril and Dickey 2014; Bickerman 2018), where it is expected that mediators will become arbitrators or pass the case to arbitrators, thus ensuring a certainty of settlement, accepted in advance by the parties.

       Number of actors: Personal or collective (team, large group, country).Without claiming to be exhaustive, this section will review who may be involved in mediating, as well as where and how these mediators operate. Three main categories stand out: informal, ad hoc, and institutional mediators.

      Informal Mediators

These mediators may not call themselves mediators, but do engage in mediation or an activity very close to it. They could be anyone who, in everyday life, helps parties to listen and understand each other and co‐create a solution to which everyone agrees. Here is a glimpse of the variety of these informal mediators:

       A student: Between classmates.

       A teacher: Between students, colleagues, parents and teachers, teachers and students.

       An office colleague, boss, union official, or staff representative: Between people at work, with customers or suppliers.

       An agent, broker, or representative: Stepping in at a given moment as an objective facilitator, and not as a defender of a particular cause.

       A solicitor: Between the parties in conflict.

       A local elected representative: Between their constituents, between the latter and economic actors or the government.

       A governor: Between local and federal public authorities, or between two local authorities, or in their relations with economic actors.

       A policeman or policewoman: Between two conflicting spouses, between squatters and owners of the premises, between protesters from opposite sides (Cooper 2003).

       A member of the military during a peacekeeping mission, or a humanitarian in crisis: Between belligerents, between the latter and the civilian population.

This list highlights numerous roles, functions, and professions that involve informal moments of mediation. According to a strict definition of mediation, only people outside and independent of the parties are considered as mediators. But in reality, mediation is employed by a range of people (as above) and occupies a much larger role as a method to pacify relationships or solve a particular problem. Rather than being in a position of authority or adviser or negotiator in their own name with their own motivations, informal mediators do not intervene for their own interests or to favor one side over the other. However, there is always a slight risk of sliding into other forms of intervention, such as arbitration. This is why mediation, as elaborated in this book, calls for professionalism, principles, ethics – methods, even though it is sometimes legitimate and useful that everyone can, on occasion and without formality, serve as a mediator.

      The concerned parties need to accept the mediator as such, as well as the mediator's approach to mediation. In informal mediation, most often, the mediator intervenes without formal acceptance for their role: mediation remains implicit, taking place even without the parties being aware of it. In cases where the process is more explicit, if an informal mediator presents themselves with a sincere desire to settle a problem which is not theirs and which has weighed on the parties for some time, and if the parties trust the mediator to understand both sides, the mediator will be welcomed and appreciated. Thus, if informal mediators have acquired the know‐how, they can sincerely and efficiently leverage the potential of mediation. But it is not enough for mediators to show their good will: the parties need to also accept them, at least implicitly, in this role. Sometimes the parties may prefer to receive advice or obtain a decision ruled by an authority, or may not want anyone to interfere in a conflict that they prefer to settle themselves.

      Let us now explore two major models of “formal” mediators, which are designated and considered as such by the parties involved.

      Ad Hoc Mediators

      On particular occasions, an external third party is responsible for helping the parties find a solution to the specific conflict between them.

      Who will be in charge of the price of raw materials?

A long‐term contract guarantees the prices at which a multinational company supplies certain raw materials to another company. The contract covers the quantities and prices – around one billion dollars over five years. The price of these raw materials soars on the markets, to exceed by more than 30% the price set in the original contract. The producing company requests that the selling price be reassessed accordingly. The buyer refuses, relying on the long‐term commitment made in the initial contract: proposing an increase of only 4%. The disagreement lasts several months. On both sides, lawyers prepare for trials; everyone believes they can convince the judge. However, mediation is finally accepted. A few sessions, over a two‐week period, lead to an intermediate price reassessment, the setting of minimum purchase quantities, and a revision clause for periodic price increases or decreases, depending on the market conditions. Mediation has allowed each company to continue their commercial relationship without market fluctuations becoming a burden.

      It is better for the parties to spontaneously agree on the profile and name of a third party, but sometimes an external authority – the public administration, a judge, a common hierarchical superior – designates a mediator with the parties accepting, nolens volens, this choice. The main characteristic of ad hoc mediators is that they halt their operations at the end of their mission.

      Mediators: Doomed to Disappear … or to Serve as Scapegoats

      Boutros Boutros‐Ghali, then Secretary‐General of the United Nations, commented on his experience as a mediator in international conflicts: “If your mediation succeeds, you must disappear because the [conflicting] States will say that they have been able to solve their problems alone; and if your mediation fails, you must agree in advance to serve as a scapegoat. I am used to it. I have done this all my life …” (Boutros‐Ghali 1995).

      There are many areas where ad hoc mediators intervene, on a private basis, on behalf of a principal or within the framework of mediation centers, from global issues to the most modest disputes (Bensimon and Lempereur 2007).

       International relations: During a political crisis or armed conflict, a special envoy is appointed by the United Nations, or a regional organization (African Union, Arab League, European Union) in order to promote reconciliation (Mitchell and Webb 1988; Faget 2010; Colson and Lempereur 2011).

       Relations between companies: Via independent and specialized mediators, or through corporate mediation centers (Salzer, Fefeu, and Saubesty 2013).

       Industrial relations and labor disputes, or interpersonal conflicts between fellow employees (Colson, Elgoibar, and Marchi 2015; Euwema 2019).

       Between the police and the community: In the United States, for example, a number of police departments have partnered with mediation organizations to offer this service and improve the relationship between law enforcement officers and the communities within which they live and work (Walker, Archbold, and Herbst 2002). Research also investigates the role of mediation in police work (Cooper 2003).

       Between neighbors: Small conflicts can be mediated thanks to local mediation associations СКАЧАТЬ