Mediation. Alain Lempereur

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СКАЧАТЬ agree to communicate through the mediator: The mediator meets them in turn and engages in “shuttle diplomacy.” By carrying the messages between the parties and giving their own perceptions or suggestions on the evolution of the relationship, the mediator plays the role of a mutual spokesperson. As a result, either the parties change their perceptions of “the other,” and agree to meet, or the process proceeds without any physical meeting.

In the latter case, mediation does not serve to renew the relationship between the parties, but to establish enough contact for the resolution of the problem: the parties do not wish to meet each other; they simply want to resolve the problem. In fact, experience shows that there are four different scenarios, in terms of focus and results, defining a Mediation Matrix (see Table 2.1) that reflects the Responsible Negotiation matrix (Lempereur 2018).

      1 Mediation with no progress on the relationship or the solution. In this case, the intervention by an outside authority, like an arbitrator or adjudicator, becomes likely. However, sometimes the conflict has ripened, and even after the mediation ends, parties might resume direct negotiations.

      2 Mediation with a solution, but without a relationship. “Problem‐centered mediation” is transactional, i.e. only concerned with the substance of a conflict, but not with the quality of relationships among the parties in dispute. Without building a relationship, however, there is a risk that the solution will be short‐lived.TABLE 2.1 The Mediation MatrixFocus on relationshipYes(3) Relationship‐centered mediation(4) Full potential mediationNo(1) Unsuccessful mediation(2) Problem‐centered mediationNoYesFocus on problem‐solving

      3 Mediation with a renewed relationship, but without a solution. Some mediations only aim at restoring relationships between parties, without trying to achieve a resolution of the substantive issues at hand. A “relationship‐centered mediation” is seen as a process of transition so that a direct relationship can resume between parties. This renewed relationship allows the parties to find a solution on their own. A metaphor that could be helpful to clarify this situation is a “jump‐start” cable that a fellow driver uses to help start a stalled car. The person offering the cable is not physically pushing the stalled car, but they are serving as a catalyst that enables you to continue on your own.Corporate relationship and sensitive confidentialityTwo companies in a sensitive technology sector were ready to engage in long and costly litigation proceedings, with an unpredictable outcome. Mediators were able to restart communication between them. As soon as their leaders had renewed the thread of their former relationship, they asked mediators to withdraw in order to broach highly confidential questions. In the absence of mediators, the parties drafted a final contract that contained some clauses known only to them.

      4 Mediation with a relationship and a solution. This is mediation that delivers its full potential in terms of relationship building and problem‐solving; it yields both relational and transactional results. Though it may look like an ideal to achieve, parties may wish to renounce it when there is already a solution to the problem or a resumption of relationship. So much the better if mediation succeeds in these two spheres of action; but both the parties and the mediator will remember that sometimes there can be a solution without relationship; and the converse. A renewed relationship is like the cherry on top, but the second scenario, whatever discomfort it brings, can emerge, even if the hope was to purge the past and to reconstruct a common future together. Maybe the only future that comes out of mediation is the one, limited but important, that stems from the implementation of a workable solution to a particular problem.

      Negative Emotions and the Risk of Escalation

Pretending to ignore negative emotions is to risk an impasse or an explosion later on (Lempereur 2003b, 2014a). Therefore, sharing them can serve a constructive purpose in conflict resolution, especially when a good faith effort is made to express them with, and not against, the other. There is an emotional release that, once performed and received by the other (who shows empathy, if not sympathy), prepares to come to terms with rational arguments. The venting person can then turn to rational problem‐solving as the next step.

      Yet, these toxic emotions – fear, sadness, anger, shame, etc. – when unmanaged, often damage relationships. Emotions can overwhelm not only those who experience them, but also those who are exposed to them: “You are not going to complain again …,” “Calm down!” In these examples, the listener reacts to emotions by refusing to acknowledge them, which can significantly exacerbate the expressed feelings. Or, the interlocutor can mirror these emotions (one's tears generate the other's tears) or transform them (one's fear provokes the other's anger). If the emotional spiral deepens, the parties can no longer focus effectively on the issues.

      In particular, negative emotions nurture excessive aggression, whether they are unilateral or, most often, reciprocal. Aggression is communicated in writing (sending a certified mail to neighbors, former spouse, or associates; threatening e‐mail to multiple addressees) or orally (tone of voice, screaming) and is accentuated by word choice (irony, accusation, shaming, threat, insult), as well as body language and demeanor. The protagonists thus find themselves in an escalation that they no longer understand or fully control.

To stop this cycle, each party requires the first step from “the other.” They can all wait a long time like stone statues. In this blocked context, mediation is appropriate because an external third party, whom everyone agrees to meet, builds a bridge of “ceasefire” across the gap of negative emotions. This image of mediators with the white flag or blue helmets applies as much to wars between countries as to conflicts between groups and individuals. Mediators, ready to understand everyone, screen aggression; they translate the messages – transmitting the content without an aggressive tone – that thus become audible and acceptable to the other.

      In these cases, mediators themselves need to know how to recognize, accept, and welcome emotions, consider them, name them, and channel them without rejecting them (Chapter 8). They witness the drama of both the emitted emotion and perceived emotion, as well as their intermingling (Lempereur and Colson 2004, chapter 6). They bring each of the parties to the mutual awareness of “How have our emotions overwhelmed our relationship?” We have often seen, in criminal mediation, for example, how a few hours of discussion can lead each person to recognize sincerely: “We both got angry …” After this de‐dramatization, the mediator can focus on the “relationship‐centered mediation.” Once the link is re‐established, the mediator withdraws and leaves the parties to deal with the problem between themselves, if possible. Or, in the framework of a “problem‐centered mediation,” they continue to help the parties formulate the needs underpinning their emotions and look for solutions together.

      The Imbroglio of Accumulated Problems

      In most cases, the parties do not have one problem to deal with, but many. Additionally, they may have different problems in mind, each of which is valued more or less according to their own priorities. If they cannot manage to sort out this imbroglio by themselves, mediation can be useful.

      The supplier, their client, and the implementation of a contract

      In this conflict, Client A considers the rule of law to be the uppermost consideration; on the other hand, their Supplier B emphasizes the lack of information, non‐compliant work techniques, and personal attacks. In the dialogue, each person repeats the important points for themselves, while carefully avoiding addressing those of the other.

PERSON A: Article 42 of that regulation provides, in case of transportation, that the manufacturer is СКАЧАТЬ