Mediation. Alain Lempereur

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СКАЧАТЬ on whether they claim to be an adviser or a facilitator, mediators do not use the same resources. According to a classical typology (French and Raven 1959), mediators can leverage different power resources vis‐à‐vis the parties: they can demonstrate expertise that the parties trust; their status may grant them special legitimacy; the parties can value their relationship with them; they may have crucial information which they can make available to the parties; or they can reward or exert pressure on the parties.

      Methods – Within these three overarching models, mediators make method choices. That is to say, they select reasoned approaches to achieve their goals. This is flexibility within the framework. There are many method choices, and we will come back to them. For example, is there, at the opening, an oral agreement or a written contract on the rules of the mediation process? Do we communicate in writing or orally, face to face, by videoconference or by phone? How is the time dedicated to analyzing the past allocated in relation to that spent exploring possible avenues for the future? Is the final agreement drawn up by the parties, their lawyers, or the mediators themselves under the supervision of the parties?

      Practices – At a more detailed level, within the choices of methods, each mediator brings their own personal “way of proceeding.” Mediation style may also vary in the same person, depending on the situations encountered. Mediation styles will crystallize in the details of the choice of words, the ways of welcoming, the handling of space and time, the questions asked, the use of silence, the transition from oral ideas to putting the solution in writing, and other various initiatives of mediators.

      Some Variables

      The extraordinary diversity of mediation practices is due in particular to the large number of possible choices regarding the methods. To illustrate this diversity, the following tables present the main variables, which offer endless combinations. As of now, some light will be shed on the key choices.

      The question of the free acceptance of mediation – or, on the contrary, when it is imposed – deserves to be raised immediately (before being further examined in Chapter 4). What happens, depending on whether the parties hear a suggestion (“How about going to mediation?”) or receive an injunction (“You must go first to mediation!”)? In fact, when the judge says to the parties: “I strongly suggest that you go to mediation,” they are more or less forced to do so, even if the judge adds: “Do you agree?” In mediation sessions, we have frequently heard expressions such as “we did not want to displease the judge.”

TABLE 1.1

Before the mediation takes place
Named as such – The upcoming process is explicitly labeled: “a mediation.”	Not named as such – We proceed the same way, but without specifically calling it “mediation.”
With much prior information on mediation given to the parties – The parties have received more or less lengthy information on the principles, procedure, objectives, and rules of mediation.	With little prior information on mediation given to the parties – The parties engage in mediation with little or no information on how mediation works.
With formal acceptance of the mediation – The parties say “yes,” orally or in writing, for the initiation of a mediation process, after a more or less lengthy reflection.	With superficial acceptance of mediation, without any deep understanding of what mediation is – The parties experiment with mediation, “to see,” without prior in‐depth reflection, or because the judge or another authority has invited them to do so.
With contractual or legal obligation – Due to the law or a mediation clause in a contract, the parties are required to attempt mediation before they engage in legal proceedings (depending on the country, such clauses may apply in bankruptcy, labor disputes, or divorces).	With acceptance not linked to a contractual or legal clause requiring mediation – Once a conflict has arisen, the parties decide by mutual agreement to engage in a mediation without having previously committed to it.

A hypothesis often put forward is that only mediation that is genuinely accepted at the outset leads to an agreement. However, the probability of an agreement is fairly close in both cases. If there is an obligation to mediate, whether the parties wish it or not, they need to at least try a mediation process. When a mediation is well conducted, the parties feel recognized, realize that there is a shared purpose to understand each other – and eventually reach an agreement, more often than expected.

TABLE 1.2

From whom? And with whom?
Internally – Mediation concerns internal relations within a group (family) or an organization (company, public body).	Externally – Mediation concerns the external partners of a group or an organization: customers, suppliers, users.
With official institutional mediators, mediation bodies, or mediation centers.	With informal mediators, or independent mediators on ad hoc missions.
With a single mediator.	With a team of mediators (co‐mediators).
In the presence of the parties – The parties involved are present in person.	In the absence of the parties – Only their representatives attend (lawyers, elected representatives, agents, etc.).
In the presence of all parties concerned.	In the presence of only some of the parties concerned – Only the main ones, as involving all of them would complicate the process.

When the parties are not there in person and are represented (by a friend, a spouse, a lawyer, etc.), it is necessary for mediators to find out, at the start of mediation, the representatives' decision‐making power. They will thus know, when the discussion turns toward the search for solutions and then the approval stage, if the agreement will still have to receive external approval, or if an agreement can be reached here and now, with the agent being empowered to decide for the principal.

      The presence, or absence, of many actors involved (multi‐party mediation) poses particular difficulties:

      Sometimes, the stakeholders are numerous

       Divorce – Father and mother … but also children? Or a grandparent who could help with child custody?

       Succession – All heirs? The main ones? A distant cousin? The loyal housekeeper who receives a symbolic share?

       A co‐ownership – All co‐owners of the condominium? Only co‐owners most concerned by the work proposed in the garden?

       An infrastructure project – The mayor, any neighbor, or some of their representatives? What about environmental groups and business owners? Do we need to bring a state official or representative? Maybe one from the construction company? (De Carlo and Lempereur 1998; De Carlo 2005; Matsuura and Schenk 2016)

       A major policy change – What if we need to redefine political СКАЧАТЬ