Mediation. Alain Lempereur
Читать онлайн книгу.
governor: Between local and federal public authorities, or between two local authorities, or in their relations with economic actors.
A policeman or policewoman: Between two conflicting spouses, between squatters and owners of the premises, between protesters from opposite sides (Cooper 2003).
A member of the military during a peacekeeping mission, or a humanitarian in crisis: Between belligerents, between the latter and the civilian population.
This list highlights numerous roles, functions, and professions that involve informal moments of mediation. According to a strict definition of mediation, only people outside and independent of the parties are considered as mediators. But in reality, mediation is employed by a range of people (as above) and occupies a much larger role as a method to pacify relationships or solve a particular problem. Rather than being in a position of authority or adviser or negotiator in their own name with their own motivations, informal mediators do not intervene for their own interests or to favor one side over the other. However, there is always a slight risk of sliding into other forms of intervention, such as arbitration. This is why mediation, as elaborated in this book, calls for professionalism, principles, ethics – methods, even though it is sometimes legitimate and useful that everyone can, on occasion and without formality, serve as a mediator.
The concerned parties need to accept the mediator as such, as well as the mediator's approach to mediation. In informal mediation, most often, the mediator intervenes without formal acceptance for their role: mediation remains implicit, taking place even without the parties being aware of it. In cases where the process is more explicit, if an informal mediator presents themselves with a sincere desire to settle a problem which is not theirs and which has weighed on the parties for some time, and if the parties trust the mediator to understand both sides, the mediator will be welcomed and appreciated. Thus, if informal mediators have acquired the know‐how, they can sincerely and efficiently leverage the potential of mediation. But it is not enough for mediators to show their good will: the parties need to also accept them, at least implicitly, in this role. Sometimes the parties may prefer to receive advice or obtain a decision ruled by an authority, or may not want anyone to interfere in a conflict that they prefer to settle themselves.
Let us now explore two major models of “formal” mediators, which are designated and considered as such by the parties involved.
Ad Hoc Mediators
On particular occasions, an external third party is responsible for helping the parties find a solution to the specific conflict between them.
Who will be in charge of the price of raw materials?
A long‐term contract guarantees the prices at which a multinational company supplies certain raw materials to another company. The contract covers the quantities and prices – around one billion dollars over five years. The price of these raw materials soars on the markets, to exceed by more than 30% the price set in the original contract. The producing company requests that the selling price be reassessed accordingly. The buyer refuses, relying on the long‐term commitment made in the initial contract: proposing an increase of only 4%. The disagreement lasts several months. On both sides, lawyers prepare for trials; everyone believes they can convince the judge. However, mediation is finally accepted. A few sessions, over a two‐week period, lead to an intermediate price reassessment, the setting of minimum purchase quantities, and a revision clause for periodic price increases or decreases, depending on the market conditions. Mediation has allowed each company to continue their commercial relationship without market fluctuations becoming a burden.
It is better for the parties to spontaneously agree on the profile and name of a third party, but sometimes an external authority – the public administration, a judge, a common hierarchical superior – designates a mediator with the parties accepting, nolens volens, this choice. The main characteristic of ad hoc mediators is that they halt their operations at the end of their mission.
Mediators: Doomed to Disappear … or to Serve as Scapegoats
Boutros Boutros‐Ghali, then Secretary‐General of the United Nations, commented on his experience as a mediator in international conflicts: “If your mediation succeeds, you must disappear because the [conflicting] States will say that they have been able to solve their problems alone; and if your mediation fails, you must agree in advance to serve as a scapegoat. I am used to it. I have done this all my life …” (Boutros‐Ghali 1995).
There are many areas where ad hoc mediators intervene, on a private basis, on behalf of a principal or within the framework of mediation centers, from global issues to the most modest disputes (Bensimon and Lempereur 2007).
International relations: During a political crisis or armed conflict, a special envoy is appointed by the United Nations, or a regional organization (African Union, Arab League, European Union) in order to promote reconciliation (Mitchell and Webb 1988; Faget 2010; Colson and Lempereur 2011).
Relations between companies: Via independent and specialized mediators, or through corporate mediation centers (Salzer, Fefeu, and Saubesty 2013).
Industrial relations and labor disputes, or interpersonal conflicts between fellow employees (Colson, Elgoibar, and Marchi 2015; Euwema 2019).
Between the police and the community: In the United States, for example, a number of police departments have partnered with mediation organizations to offer this service and improve the relationship between law enforcement officers and the communities within which they live and work (Walker, Archbold, and Herbst 2002). Research also investigates the role of mediation in police work (Cooper 2003).
Between neighbors: Small conflicts can be mediated thanks to local mediation associations and to strengthen local democracy (Faget 2010; Susskind and Lempereur 2017).
At school: School mediators (adults or students trained for this purpose; Cardinet 1997).
Within the family: Family mediators (Parkinson 2014).
These official, but ad hoc, mediators are generally experienced people, recognized for their wisdom or impartiality, or accepted as such and trained in mediation. They are sometimes retired professionals (Lempereur 1998b) or freelance consultants. Another approach is to involve several mediators – the co‐mediation model – as illustrated in the following example.
A college of mediators in New Caledonia
By 1988, and for several years prior, the French overseas territory of New Caledonia had been shaken by a series of clashes between supporters and opponents of independence. On April 22, the crisis culminated in the hostage taking of 27 police officers (gendarmes), detained on the island of Ouvea by independence activists. On May 5, a special commando unit of the National Gendarmerie engaged in an assault, releasing the hostages, but at the cost of 21 casualties. New Caledonia was on the brink of civil war. Prime Minister Michel Rocard dispatched a team of mediators to the area, coordinated by Christian Blanc. This team was composed of different mediators with complementary profiles (legal, administrative, spiritual leaders). They engaged and listened carefully to representatives from the different ethnic groups of New Caledonia. They succeeded in bringing the parties together and convening a negotiation which successfully ended with the Matignon Agreement on 26 June 1988.
Whatever the outcome, these official yet ad hoc mediators halt their mission once the problem has been resolved, or the stalemate has been confirmed.
Institutional Mediators
Here, mediators are part of a mediation organization, which guarantees continuity. The mediators are formally employed by an organization (public body, company, etc.) and its external partners (consumer, user, customer, supplier, etc.) seeking to rectify a complaint that they find justified in law or in equity. In addition, large organizations have appointed