Mediation. Alain Lempereur
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TABLE 1.1
| Before the mediation takes place | |
|---|---|
| Named as such – The upcoming process is explicitly labeled: “a mediation.” | Not named as such – We proceed the same way, but without specifically calling it “mediation.” |
| With much prior information on mediation given to the parties – The parties have received more or less lengthy information on the principles, procedure, objectives, and rules of mediation. | With little prior information on mediation given to the parties – The parties engage in mediation with little or no information on how mediation works. |
| With formal acceptance of the mediation – The parties say “yes,” orally or in writing, for the initiation of a mediation process, after a more or less lengthy reflection. | With superficial acceptance of mediation, without any deep understanding of what mediation is – The parties experiment with mediation, “to see,” without prior in‐depth reflection, or because the judge or another authority has invited them to do so. |
| With contractual or legal obligation – Due to the law or a mediation clause in a contract, the parties are required to attempt mediation before they engage in legal proceedings (depending on the country, such clauses may apply in bankruptcy, labor disputes, or divorces). | With acceptance not linked to a contractual or legal clause requiring mediation – Once a conflict has arisen, the parties decide by mutual agreement to engage in a mediation without having previously committed to it. |
A hypothesis often put forward is that only mediation that is genuinely accepted at the outset leads to an agreement. However, the probability of an agreement is fairly close in both cases. If there is an obligation to mediate, whether the parties wish it or not, they need to at least try a mediation process. When a mediation is well conducted, the parties feel recognized, realize that there is a shared purpose to understand each other – and eventually reach an agreement, more often than expected.
TABLE 1.2
| From whom? And with whom? | |
|---|---|
| Internally – Mediation concerns internal relations within a group (family) or an organization (company, public body). | Externally – Mediation concerns the external partners of a group or an organization: customers, suppliers, users. |
| With official institutional mediators, mediation bodies, or mediation centers. | With informal mediators, or independent mediators on ad hoc missions. |
| With a single mediator. | With a team of mediators (co‐mediators). |
| In the presence of the parties – The parties involved are present in person. | In the absence of the parties – Only their representatives attend (lawyers, elected representatives, agents, etc.). |
| In the presence of all parties concerned. | In the presence of only some of the parties concerned – Only the main ones, as involving all of them would complicate the process. |
When the parties are not there in person and are represented (by a friend, a spouse, a lawyer, etc.), it is necessary for mediators to find out, at the start of mediation, the representatives' decision‐making power. They will thus know, when the discussion turns toward the search for solutions and then the approval stage, if the agreement will still have to receive external approval, or if an agreement can be reached here and now, with the agent being empowered to decide for the principal.
The presence, or absence, of many actors involved (multi‐party mediation) poses particular difficulties:
Sometimes, the stakeholders are numerous
Divorce – Father and mother … but also children? Or a grandparent who could help with child custody?
Succession – All heirs? The main ones? A distant cousin? The loyal housekeeper who receives a symbolic share?
A co‐ownership – All co‐owners of the condominium? Only co‐owners most concerned by the work proposed in the garden?
An infrastructure project – The mayor, any neighbor, or some of their representatives? What about environmental groups and business owners? Do we need to bring a state official or representative? Maybe one from the construction company? (De Carlo and Lempereur 1998; De Carlo 2005; Matsuura and Schenk 2016)
A major policy change – What if we need to redefine political districts, or a state or federal policy? (Lempereur 1998c)
Various criteria influence the choice of the number of people to solicit. The concern of facilitating the exchanges can favor, at least initially, a small number of actors. It is also important to involve the main protagonists likely to influence the decision. Conversely, in the spirit of inclusion, some mediators favor the idea that the participation of a maximum of actors, even “the least” important, will contribute to the legitimacy of the final result and, therefore, to its smooth implementation. Age, state of health, legal capacity, or availability are also criteria. In the most complex multi‐party mediations, it is preferable to sequence meetings over time: the first meetings, conducted with the key players, will reveal who else needs to be involved to obtain their reaction – and possibly their agreement.
The question of the number of people around the table is all the more important as participants do not share the same information, or in the same way, if they are being observed by other parties (Colson 2004, 2007). During mediation, even if one of the parties wants to express themselves spontaneously, it is important to be as inclusive as possible – the other party or parties, their counsel, mediators themselves? Any presence is a filter to information sharing. Admittedly, the hypothesis is that mediators, by definition, are benevolent toward everyone, have little influence on what is said and what is not said. For example, fearing retribution, some parties may hold back on expressing themselves: “What will my lawyer think? And the other lawyer, could she hold against me what I intend to say?” As a result, mediators may turn to the “caucus method,” which we will further discuss in the book: caucuses (probably stemming from an Algonquian word caucauasu; Online Etymology Dictionary 2020) are private meetings with a given party, to allow for a free flow of information.
If the temptation exists to restrict the circle of the parties present at mediation, it needs to avoid creating the opposite risk involved in the absence of certain parties, who could disavow an agreement obtained without them, and consequently hinder its implementation. Two types of absences should be noted:
The absence of decision‐makers. It is not surprising that they do not accept the agreement reached, without them, by the other parties. An agreement is only binding on those who build and then sign it. Hence the importance, at a given moment, of the presence of all the actors concerned.Litigation between a real estate developer and a co‐ownerThe developer of a housing complex is in litigation with a new co‐owner, about leakage from roof terraces. Responsibility could be attributed as much to the developer (waterproofing qualities of the products used) as to the co‐owner, who may have damaged the terrace by installing a chimney, which was not originally planned. Never mind, the developer is covered by insurance: co‐owner and developer agree on behalf of the insurer. However, if the latter is absent during the mediation and does not sign the agreement, its implementation is unlikely.
The absence of decision influencers. Certain essential actors do