Mediation. Alain Lempereur

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СКАЧАТЬ B: But you did not give us any information about the quality of …

      1 A: Anyway, six years ago, you gave us a hard time about … We did not come to terms with it.

      2 B: What are you talking about? Are you the one complaining? Did you see how you received our representatives? You called them every name under the sun!

      3 A: At our company, we favor directness. When we have something to say, we are frank about it.

      4 B: But the delivered products were rigorously compliant with the contract.

      5 A: I have already told you that Article 42 … provides that the manufacturer is liable.

      A and B end up repeating themselves, and the dialogue goes around in circles (also see Chapter 6).

Anyone can observe these parallel “monologues” in conflict situations, both in negotiations and in court proceedings. It aims only to present to the other side the arguments that affect us, without responding to those put forward by the other side. It is a stubborn repetition of the same words, without going into detail or explaining each of the points that are important to the other. This “non‐dialogue” evokes a reciprocal avoidance that fails to deal with the problems of the other party. On the other hand, thanks to mediation, dialogue orchestrated by a third party – the “trilogue” or “trialogue” – brings the problems perceived by one and by the other into the exchange. In mediation, increasing importance is given to recognition of the essential role of the mediator as the organizer of the meetings (Lempereur 2015c), orchestrating a sequence where a typical agenda includes both parties' priorities. During this process, the mediator enforces the agenda and helps to clarify different points and how they are connected, so that each party successively goes after important points for oneself and for the other.

      In the previous example, mediators devoted a time slot for speaking when the parties could successively explain themselves on the following:

       For A:

       The application of Article 42

       Traces of old disputes (“Six years ago …”)

       For B:

       The reality of the lack of information

       The greetings of representatives perceived as insulting

       The compliance verification of the delivered products

      From there, and subject to good faith in the statement of concerns by each person, the mediator invites each party to integrate what poses a problem for the other. This reciprocal recognition, by accepting possible disagreements on the interpretation of the facts, contributes to the emergence of potential solutions to the problems invoked by each party.

      In addition to this juxtaposition of priorities, another source of complexity is that mediation succeeds in managing the existence of many intertwined, independent, but linked conflicts. What appeared to be one conflict, is, in reality, many underlying conflicts. In court, where a conflict hides other ones, judges find themselves quickly annoyed: solicited for a particular dispute, they cannot rule on another one, even if it is linked to the first one. Mediators, on the other hand, embrace the complexity of the diverse elements of the conflict.

      On a farm: One thing leading to another

A court commissions a mediator to help find an agreement between a farm in financial difficulty and its creditors. Throughout the course of a session, the mediator realizes, while listening to the farmer, that the latter is confronted by two other conflicts: with his wife in the settling of a divorce, and with his brothers for the succession of their parents' farm. The mediator, feeling that the conflicts are related and knowing that resolving one may help to unfreeze the other, takes on work with the farmer and his wife on the one hand and with the farmer and his brothers on the other hand. They thus arrive at two distinct agreements, one on the divorce and one on the succession. These two conflicts settled, the financial capacities of the farmer improve: an agreement occurs with the creditors to keep up the establishment and restructure the repayment of debts. The resolution of the financial conflict with the creditors results from the prior resolution of the two other disputes.

      If there had not been mediation, each conflict would have been managed in an isolated manner: the conflicts regarding divorce and succession would have persisted as much in negotiation as in court. As often happens in cases of bankruptcy, the farm would have been liquidated at a low price, and the creditors would have ultimately been repaid less than what they received in the long‐term agreement allowing for the continuation of agricultural activity.

      Mutual Misunderstanding

      The parties involved in a conflict often do not understand one another: they live their past as a coherent whole, and the other, whether it is a person, a department within an organization, an ethnic group, or a nation, is placed on the “negative” side. The other is of bad faith and is the representative of the “axis of evil.” French philosopher Jean‐Paul Sartre (1944) summarized it: “Hell is the others.” How did we arrive at this Manichean Yalta between the other and me?

As Chapter 6 will elaborate, the mediator helps to uncover it, as much for themselves as for each of the parties, by verifying through their questions if each party listened to and understood the other. The goal here is that a step‐by‐step, mutual comprehension of what has been perceived differently in the disagreement should come to light. The mediator will explain an essential distinction between understanding and agreeing: one party can understand how the other functioned – recognizing how the other feels – and still not agree with them. A party who understands can, at the same time, continue to express a different narrative of reality, of the distribution of responsibilities, and of the consequences to draw from it in order to find an acceptable solution to the conflict.

      The reciprocal ignorance and incomprehension increase when individuals, groups, or organizations in conflict belong to radically different cultures: national cultures, but also professional cultures – such as an engineer in conflict with a legal expert. An extra factor favoring mediation requires the availability of a “multicultural” person, knowing the different, present “worlds” well, who is likely to play the role of cultural interpreter so that each party better understands the other. This essential role of cultural intermediation, for example, is taken on by criminal mediation associations in Paris.

      Interpreting the culture of the Other, my fellow human being

       At the Paris‐based Mediation Training Center (CMFM), an effort is made to assign at least one mediator (if there is a co‐mediation) of the same cultural origin as the party in conflict.

       In the framework of the Association of Criminal Aid (AAPE), a mediation case involved a French mother and an Algerian father. The mother had no contact with her children – who were living in Algeria – for more than a year. The association took care to integrate a mediator of Algerian origin in the mediation team. During the entire mediation, the Algerian party looked only at the Algerian mediator and addressed only him. At the end of the meeting, a first agreement was made, and the French mother was immediately able to talk to her children by phone, before meeting them later.

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