Mediation. Alain Lempereur

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СКАЧАТЬ in the interest of the children.Divorce without childrenThe ex‐spouses wish to conserve a cordial or at least efficient relationship. Even if they do not see each other again, it is in their interest to maintain a relationship in the strict framework of the divorce procedure, which they hope will be the least painful possible.

       Neighbors – Unless you move to isolated regions, you will inevitably rub shoulders with neighbors, with whom it is preferable to maintain cordial relations so as not to make daily life difficult for yourself.Neighbor on the same floorDespite the racket from their party until five in the morning and the damage they caused to the walls of the corridor two days earlier, my neighbor and I have an interest in speaking civilly to one another in the future in order to manage co‐ownership issues.

       Students, teachers, parents – Our children spend much time at school. It is also the workplace of teachers. From elementary school, to middle and high school, students, teachers, and parents are linked for years. Preserving the quality of these relationships is fundamental for all (Cardinet 1997).Insults at schoolStudent of this professor or professor of this student, I think about tomorrow. I still recall this moment of tension where we lacked respect and nearly got physical. I have a hard time speaking to the other. But, tomorrow, we will meet again in class and it will be unpleasant. I would prefer to not go there, or to call in sick. But seeing one another again is inevitable: still six months before the end of the year. Ah, if only there were mediators! Could they help us?

       Employers and employees – By definition, a corporation supposes continuity; beyond conflicts, everyone needs to work together.Work methods in a companyEmployee of my boss, or boss of my employee, I no longer tolerate this lack of respect for the work methods I propose. They do not understand anything no matter how hard I try to explain it. As for firing or resigning, I do not even consider it. But tomorrow, the atmosphere will remain horrible. Ah, if mediators were able to make them understand the advantages of these new work methods!

       Between organizations – Businesses, governments, and associations maintain ongoing working relationships (clients, users, suppliers, partners, associates) which are not in their interest to cut off.A company and its supplierA company notes the increase in late deliveries, errors related to orders, and changes in taxes without previous information from its main supplier. Things become so bad that the company is nearly thinking of changing suppliers. Terminating relations: why not? But what will be the cost associated with a new supplier? Facilitating an exchange of explanations between the two companies, mediators help to shed light on the temporary difficulties of the supplier – the unexpected departure of the director of production. The supplier agrees to the preferential conditions of its client regarding future deliveries, once the director of production is replaced.

       Between countries – It is advantageous for neighboring states to maintain good relations. If tensions appear, it is in the interest of the international community to mitigate them through mediation efforts.A border disputeA border dispute has poisoned relations between two countries for years. But is it only a border problem? What about these ancient historical tensions that have not been dealt with? Is it not time to evoke endured and inflicted sufferings in order to work toward a reconciliation? From the viewpoint of neighborly relations, beyond fixing the borders once and for all, what about reflecting on exchanges across these borders: developing trade between the two economies, student exchanges, learning both languages, creating sister cities, etc.? A third party can help to support confidence building at least until direct negotiations can take place.

      The concern to maintain or rebuild an acceptable – and ideally, satisfying – relationship is at the core of many mediations. Its success is measured by the results of the restored relationship, to the extent that parties themselves judge relevant.

      The Need for a Process of Problem‐Solving

Sometimes, negotiators, charged with resolving a conflict, skip steps to announce “their” solutions without having set up an extensive inventory of problems and needs of “the other.” The result is suboptimal if compared to the solution that negotiators could obtain if they had followed a methodical process of problem‐solving:

       Description of facts, while comparing the versions of each party

       Understanding the motivations, needs, interests, and constraints of each party

       Invention of all possible solutions in response to the needs of one another

       Considering the involved parties and contexts

       Finally selecting a balanced solution among all possible options, which is justified and takes everyone's needs into account as much as possible

      It remains difficult for negotiators to split themselves in two: to know how to negotiate the resolution of a problem on one's behalf and, at the same time, to structure the exchanges in anticipation of such a resolution. Thus, an additional justification favors mediation: it stems from an already evoked “division of labor.” On the one hand, negotiators are in charge of the substance, and on the other hand, mediators are in charge of the process and its successive phases (see Chapters 5 to 7).

      The Need for Confidentiality

      Whether talks take place in the family, the neighborhood, the district, at school, or at the workplace, safe free speech needs to be protected. Parties are often concerned about maintaining discretion around a conflict and its resolution, fearing for their public image or their personal reputation. Confidentiality proves to be an important criterion of choice. In contrast with other modes of conflict resolution, mediation prioritizes confidentiality, as it is essential to confidence and trust.

      Petty crimes: I will repair the damages. To protect my honor, please do not talk about it!

There are 30,000 cases of criminal mediation in France every year. Petty crimes include slander, assault, and shoplifting. If they become public, the offenders risk ruining, for life, their reputation. Within mediation, confidentiality allows parties to say difficult things about oneself or the other, to react to one another, without the information being used against anyone. Mediation can thus result in apologies, followed by mutual recognition, as well as reparations for the reprehensible act. However, confidentiality does not cover infringements of public order. Here is why mediators temper the principle of confidentiality, as Chapter 3 indicates, with the principle of respect for the law. For example: “I commit to confidentiality and invite you to do so. But if there was a violation of public order, I would be obliged to disclose it to the prosecutor.” Each person knows the limits of confidentiality guaranteed by mediation because they have been clearly spelled out by the mediator.

      To protect oneself from the risks of leaks in the media, the advantage of confidentiality in mediation is valued in the political field, as in economic matters, between companies.

      Good Time Management

      All of the above underlines how long it takes to overcome, peacefully, a conflictual situation, because a multiplicity of factors need to be taken into account: (re)establishing the relationship, receiving and considering emotions, describing contents, dealing with needs, imagining appropriate solutions, and obtaining commitment. From this point of view, the comparison between mediation and negotiation reminds us of the fable The Tortoise and the Hare by La Fontaine: the hare‐negotiator tries to rush the exchange, to finish it quickly, but without ripeness. The tortoise‐mediator, СКАЧАТЬ