Mediation. Alain Lempereur

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But the image of the tortoise has its limits. Indeed, mediation is not slow: it is much faster than a court ruling, as it presents several advantages. First, long periods of time elapse before a judge addresses a case, except for emergency interim proceedings. Second, once the decision has been made in the first resort, appeal remains possible, again postponing a decision to a potentially distant horizon. From start to finish, it is not rare for a court ruling to require several years. Mediation can be started in a short time, and take from just a few days to a few months in the most complex cases. Therefore, if it succeeds, it saves years to the benefit of all parties.

      Besides, if it takes some time for a case to be litigated, the time dedicated by the judge to review it is short, really too short: the parties have the feeling that “their” case is expedited in minutes, stuck between dozens of others. In front of a civil judge, the parties' arguments are so brief that deep explanations are impossible. It is true that mediation will take more time: first to understand (one another), then to listen to one another until a solution is reached. In brief, in litigation, the frustration of the waiting time for a decision adds to that of a shortened hearing. By contrast, mediation intervenes more quickly, and then, as Talleyrand says, knows how “to take one's time.”

      Other forms of external decisions (the vote, a hierarchical decision, etc.) are settled quickly – limited time for a debate before a vote or for an explanation to a hierarchical authority. But again, parties often feel they lack the time to explain themselves, as in court. The way mediators manage information exchanges will thus be perceived as a loss or gain of time, depending on the length of time it takes to renew the relationship, to dig into a problem deeply, and to brainstorm solutions.

      Thus, mediation manages time well. It consumes a little but utilizes it well.

      Cost Control

On average, the predictable cost of mediation remains significantly less than that of a legal procedure. It is a frequently cited justification in favor of mediation. Litigating a case, especially if it involves an appeal, requires legal specialists, like bailiffs and lawyers, whose services prove expensive. Naturally, if mediation is engaged in parallel with a trial, the costs of one add to the costs of the other, especially if mediation does not result in an agreement; but if it succeeds, the trial is ended, sparing a much greater financial cost for the parties. In mediation, lawyers act as advisers and often charge more reasonable fees, because the time they save allows them to engage in other activities (Lempereur and Scodellaro 2003).

      What about the mediator's compensation? In general, informal mediators are not paid. Institutional mediators are paid by their organization and not by the parties. What about ad hoc mediators? Many practices exist, responding to different contexts. Certain associations give unpaid services to their members, like the French Mediators' and Arbitrators' Association (AMAPA), which settles conflicts between audiovisual professionals. In this case, mediators voluntarily give their time. If not, as for all services, private advisory firms or liberal professions charge a flat fee, hourly fees, or an amount that depends on the total amount that is contested in the mediation. Certain complex affairs require a lot of time, not only for preparation but also in sessions; they require experienced and specialized mediators, whose services are valuable, and therefore expensive for parties. Even in this hypothesis, if two parties agree on the name of one mediator, rather than each one appointing a lawyer – thus two professionals – the incurred fees remain lower and are split between them.

      It is up to each person to appreciate the value of the service rendered by paid or unpaid mediators (see Chapter 4). It would be dogmatic to consider that a mediation solution should necessarily be free. The more individuals, companies, and organizations are accustomed to work with lawyers whom they pay well and from whom they demand a lot, the higher‐quality services they will expect from mediators. Inevitably, a mediation market is put in place, and the law of supply and demand will apply. Reputable and experienced mediators will naturally be more costly. It is important to follow the evolution of the mediation costs, because the risk is that mediation will be viewed as an expensive process, like arbitration. Free mediations will persist in ad hoc mediation under the form of pro bono action and will continue to prevail in informal and institutional mediations.

      Search for a Well‐Accepted, and Thus More Sustainable, Solution

The scenario is frequent in negotiation: two parties sign a direct, rapid agreement between them, but it is revoked a little later by one of them or not executed at all. Why has an agreed‐upon commitment not seen the light of day? Have the parties truly explained themselves in depth? Have the identified solutions put an end to the problem? Have the parties really claimed ownership of the agreement? All these questions shine light on a powerful criterion in favor of mediation: a solution will be all the better accepted if none of the parties feel it is imposed on them.

      In conflictual situations, emotions and tension between parties enable an entrenched position to emerge: mine. Here, only “my” solution can be the right one. The conflict, where one digs in one's heels, is also a way of preserving one‐sided self‐esteem: “I am a good person. The one who is at fault is the other.” On the other hand, if mediation works, the parties find sufficient time to explain their perspective to the other and to really understand one another. The self‐esteem of both parties is preserved and reinforced. Each person is considered, and more easily recognizes some legitimacy in the other's words and actions. The mediation process helps the parties to formulate acceptable solutions that were not imaginable at the beginning, but that emerge when one better understands the deep motivations of each party.

      A divorce – “$2,000 of alimony, too much!”

In a divorce, the husband refuses to grant a $2,000 monthly payment of alimony to his ex‐wife. She demands this sum, producing a budget of her monthly needs and those of their children. In mediation, the husband reveals that he understands the necessity of this sum, but his new partner considers that it would be offering an undeserved luxury to his ex‐spouse. He needs the solution to be understood by, and acceptable to, his new partner. It is thus not as much the financial aspect that annoys him, contrary to how it appeared at the start. Once these respective needs are clarified, the parties come to imagine appropriate responses to it. During the mediation, an acceptable solution for the parties (but also for the new partner in the background) emerges. First, the ex‐husband transfers a $1,000 alimony to his former spouse, who will manage this sum for herself and both children. Second, he will grant up to $1,000 to cover a part of the rent, which he will transfer directly to the real estate agent. This final clause ensures that the money is not used for another purpose. The agreement is thus durable, responding to the needs of both parties.

      This example underlines that beyond negotiators – the ex‐spouses – quasi‐negotiators, however absent from exchanges, exercise an important influence on the choices of official negotiators (Colson 2007). A party's refusal in mediation is sometimes rooted in the fact that another stakeholder, absent but decisive, is not taken into account in the solution. That is why the mediator's approach claims to be as inclusive as possible. To assure a durable agreement, it is important to map out all the relevant protagonists who might be impacted by the consequences of the agreement, block it, or, on the contrary, encourage it.

      The following example illustrates the advantage of mediation in finding solutions that integrate the needs of all parties and in organizing the agreement's sustainability by anticipating changes in circumstances and their potential consequences for the initial agreement.

      Inheritance: To sell or not sell the house?

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