Mediation. Alain Lempereur
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varies, depending on the number of parties, the habits and training of the mediators, the technical nature of the case, the refusal of one of the parties to physically meet the other, the tensions between the parties, etc. Finally, this variety also contributes to the irreducible diversity of personalities: no mediator is like another, depending on their training, their specialization in this or that sector, their past experiences, their personal qualities, openness and attentiveness, authority, or objectivity. Mediation is a deeply human process with many variations (Fiutak 2009).
Conclusion: An Overflow of Methods or a Lack Thereof?
Mediation illustrates the 2000 European Union motto: “United in Diversity” (In Varietate Concordia). Behind a constant – the desire to contribute to the peaceful resolution of conflicts between parties, based on their acceptance of an approach characterized by its dynamism and plasticity – appears the variability of practices. However, this mediation effervescence should not obscure several risks.
The first risk is the trivialization of mediation, of its use in any situation, leading to some mediation mania. It is useful to identify precisely when and why to engage in a mediation process, or otherwise rely on other intervention mechanisms. This refers to the relevance of mediation, and its application criteria, which is treated in Chapter 2.
Aboard an airplane, a pointless mediation
The use of micro‐mediation can reflect the growing difficulty of fellow human beings to communicate directly with each other in order to settle small disputes. On planes, when a passenger was annoyed by a neighbor (conventionally, the knee kick in the seat, or the backrest too tilted during a meal), the matter would be settled directly with the fellow traveler. Airline companies have noted the increasing propensity of passengers to ask for help from flight attendants, rather than attempt a direct resolution of their conflict by relying on the elementary rules of civil request by conversation.
A corollary to the previous one, the second risk is the absence of methods: whether they may be ignorant of the existence of methods, or, on the contrary, disturbed by the apparent relativism that draws from a diversity of possible methods, would‐be mediators might rely on their own instincts only. This risk concerns each of us when we are called upon to take on the role of informal mediators. But the other models – institutional mediators and ad hoc mediators – are not immune to this pitfall either.
Moreover, a third risk is unsuitable methods; i.e. mediators apply patterns and reflexes inherited from their previous professional experience in other functions. This is the case, in particular, of the institutional and ad hoc mediators, who find themselves minutely supervised when planning the mediation but in the end are left fairly on their own during the actual mediation process.
Even mediation professionals may lack methods
Criminal mediators, sometimes chosen from among former judges or police commissioners, might see mediation as a subset of a criminal lawsuit, without necessarily reaping all the potential of a more methodical approach including gaining a mutual understanding of the causes that led to a criminal offense.
Some mediators, who are often efficient in the search for solutions, seem less focused on the reconciliation between people. In this case, it is a question of working, also, if necessary, on the relationship on top of the concrete problem at stake.
A mediation process entails its own methodological requirements. To ignore them, or to apply inadequate ones that are fundamentally foreign to it, is to risk the failure of mediation, or in any case to deprive oneself of assets in favor of the resolution of the conflict.
Hence this book: it is not about proposing the method – as if only one method exists – but rather about synthesizing methods, drawing from enough sources and tempered by enough experiences to be applied flexibly to most contexts. It is not a question here of limiting oneself to a single model, but of being inspired by several, to unfold an approach that allows each mediator to find their own ways of engaging in mediation. In doing so, we will try to bring as much to experienced mediators – who are sometimes so comfortable employing a single method that they end up ignoring others that may be useful – as to beginners – who venture in this delicate path with, depending on their personalities, either the misleading feeling of knowing it all or the paralyzing impression of not knowing anything.
To structure this method, mediators and parties in conflict can rely on what we call the Seven Pillars of Mediation, which we will develop in the following chapters.
The Seven Pillars of Mediation
1 Solicit the Parties permanently so that they take ownership of the resolution mechanism, by mobilizing active communication between them and seeking progressively some mutual recognition.
2 Secure Principles, that is to say the “rules of engagement,” which will allow everyone to stay on course with problem‐solving.
3 Sequence Phases in this process, with various stages, from the establishment of mediation to, if possible, an agreement.
4 Seize the Problem, and its various data, by an in‐depth analysis of its dimensions.
5 Seek Paths to solutions, so that parties discover what might work for them.
6 Surmount the Pitfalls that arise and hinder a resolution throughout the process.
7 Seal the Points of agreement (or disagreement), with the aim of gradually bringing to light a peaceful and realistic solution, to be implemented by all parties.
CHAPTER 2 THE PERTINENCE: Weigh the Pros and Cons of Mediation Before Engaging in It
In what kinds of situations can one choose mediation as a way of resolving a conflict? What are its many advantages, but also its limitations? These are the fundamental questions that the parties in conflict as well as mediators may need to ask themselves. This chapter will help to determine the adequacy of mediation as a process of intervention. Indeed, third parties can act in various ways, so it is useful from the outset to offer an overview of the spectrum of intervention.
Mediation Among Other Types of Third‐Party Interventions
When one or both parties conclude that it is no longer possible to engage in direct negotiation, a third party's intervention can become necessary. A wide diversity of types of third‐party intervention coexist; eight of them will be introduced here (see Figure 2.1).
Eight Approaches of Third‐Party Interventions
These intervention methods are arranged on a continuum from more autonomy for the parties toward more control by the third party.
1 Ally – It is wise, when a party lacks self‐confidence and recognizes the need for support, to ask a third party to sit next to the party or attend the meeting as part of the audience. Though this individual – or a supporting group – is not a substantive expert, and remains silent, their presence offers comfort.FIGURE 2.1 The 8 A's: Mediation within the spectrum of third‐party approaches.
2 Attorney – When a situation involves a legal dimension, it is wise to have input from someone who understands the law – its technical and relevant language and its challenges – and who can represent the involved party. The latter, of course, is free to adopt or reject the attorney's contribution.
3 Ambassador – In some situations, it is wise to resort to a third party who will be a representative, either because they are well versed in a particular