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- Herausgeber: John Wiley & Sons
- Kategorie: Fachliteratur
- Sprache: Englisch
- Veröffentlichungsjahr: 2021
When negotiation fails, Mediation avails other moves for an amicable resolution. Whether you are a current or future mediator or a party to a conflict, this is your essential companion to the theory, concepts, and best practices of Mediation. In a world ridden by social divisions, responsible resolution of conflicts is more timely than ever. What happens when parties are unable to negotiate an agreement together? The next move is to invite a third party to reset the negotiations, facilitate the exchanges, rebuild a working relationship and empower the parties to explore the past, surface their present needs, invent, evaluate and choose the best solutions for the future. Mediation: Negotiation by Other Moves brings decades of critical analysis and experience that the authors tested worldwide in international organizations, governments, NGOs, universities and corporations. You will understand Mediation better, and its significance in your personal and professional life. You will be able to develop a flexible mindset and a broad outlook to achieve sustainable outcomes. This book will cover: * Models and principles from various domains of Mediation: family, business & labor, public affairs, international relations * A Mediation framework to prepare for Mediation and to run its process smoothly * A step-by-step approach to a Mediation session, from the opening until a possible settlement, via the various phases of problem solving * Mediation traps and how to avoid them--for mediators and parties alike * Ethics of Mediation and questions of responsibility Mediation: Negotiation by Other Moves is essential reading for anyone who wishes to develop a pragmatic approach to Mediation.
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Praise for Mediation
“In today's world we are called to be mediators in almost everything we do: mediation has become an essential aspect of true leadership and success. This book is a must read, not just for experts and practitioners, but also for whoever wants to foster inclusiveness and reciprocal understanding.”
Enrico Letta, Dean of the Paris School of International Affairs and former Prime Minister of Italy
“As evidenced in this book, mediation benefits all spheres of society. A prominent example is the use of mediation by patrol police officers, which infuses them with both problem‐solving and attention to dignity. It promotes nonviolent positive interactions between citizens and police.”
Christopher C. Cooper, Attorney, Mediator, former Washington D.C. Police Officer & U.S. Marine Sergeant
“I always recommend this book to students, because the authors' complementary profiles and lenses account with talent and acuity for the peaceful and democratic uses of mediation.”
Jacques Faget, Professor of Law and Sociology, University of Bordeaux
“Military chiefs have a duty to master the art of war, but also of mediation. Hundreds of officers from 120 countries benefitted from this book's principles and used them afterwards in operations.”
Loïc Finaz, Vice‐Admiral (Ret.), War College (France)
“For anyone interested in mediation or as a reference for experienced practitioners, this book is an accessible and complete resource written by seasoned and world‐class mediators. Many EU diplomats and advisers have already benefited from its substance for more than a decade.”
Antje Herrberg, Mediator, European External Action Service, and founder of MediatEUr
“This thought‐provoking book is an asset for those who are keen on achieving desired results in diplomatic mediation. It will guide a reader to success, even when the chances look remote.”
Oleg Ivanov, Diplomatic Academy, Ministry of Foreign Affairs (Russia)
“Our mission is to support the capacity of Israelis, Palestinians and other regional actors to negotiate more effectively. We need to leverage the mediation methods of this book every day.”
Ihab Khatib & Lior Frankiensztajn, Executive Directors, Negotiation Strategies Institute, Jerusalem‐based NGO
“With rising conflicts in today's world, mediation is needed more than ever. Here is a lucid and insightful book on the contemporary practice of mediation, highly practical and usefully illustrated with a range of good examples. It is a genuine pleasure to recommend this excellent book to students, professional mediators, and indeed anyone who practices mediation informally, in other words, most of us.”
William Ury, co-author, Getting to Yes, and author, The Third Side
“If you love French cuisine, Escoffier's Guide to Modern Cookery has been a reference for 100 years. If you are more into mediation, from now on, you can turn to Mediation. It is an outstanding collection of everything practical you need to know: from scanning the landscape, preparing the grounds, deciding on principles, to leading through the ups and downs of mediation, preventing mistakes and getting your value systems right.”
Peter Maurer, President of the International Committee of the Red Cross
“How might mediators facilitate the resolution of conflict by empowering the parties themselves to negotiate more effectively? Both academics and practitioners need this book: after surveying existing mediation practices and outlining relevant principles it provides thoughtful advice on how best to structure the mediation process and promote the parties' better understanding of their conflict and develop and assess alternative solutions.”
Robert Mnookin, Mediator and Law Professor, Harvard Law School and Program on Negotiation
“This book is essential for mediators and staff working in humanitarian, development, peace and security contexts. Having spent over 30 years with the United Nations in emergencies in Somalia, Rwanda, Burundi, Gaza, Iraq, and Syria, I have witnessed the consequences of conflicts. Today's world needs mediation both for prevention and conflict resolution. My one take‐away from the book is that mediation is an art, a skill that one needs to practice and can learn. I highly recommend this book.”
Panos Moumtzis, United Nations Assistant Secretary General; Executive Director, Global Executive Leadership Initiative, and former Humanitarian Coordinator for the Syria crisis
“As a negotiation adviser, I have often observed the critical importance of responsible mediation. This brilliant book offers the secret keys to delivering success for all sides.”
Kalypso Nicolaïdis, Professor of International Relations, Oxford University and European University Institute
“Without appropriate knowledge and preparation, mediation efforts often fail. The authors optimize the whole mediation process.”
Tetsushi Okumura, Professor of Management, Toyo University (Tokyo)
“The very subtitle of this wise and comprehensive guide—Mediation: Negotiation by Other Means—reveals a deep and unusual understanding of the intimate relationship of two important processes that are normally treated as wholly separate. Drawing on significant research and extensive experience across multiple continents, this distinguished international group of co‐authors will valuably enlighten readers who seek to employ this powerful third-party method of conflict resolution and management.”
James K. Sebenius, Professor at Harvard Business School and Director, Harvard Negotiation Project
MEDIATION
NEGOTIATION BY OTHER MOVES
ALAIN LEMPEREUR
JACQUES SALZER
AURÉLIEN COLSON
MICHELE PEKAR
EUGENE B. KOGAN
This edition first published 2021.
© 2021 by Alain Lempereur, Jacques Salzer, Aurélien Colson, Michele Pekar, and Eugene B. Kogan
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Library of Congress Cataloging‐in‐Publication Data
Names: Lempereur, Alain, author. | Salzer, Jacques, author. | Colson, Aurélien, author. | Pekar, Michele, author. | Kogan, Eugene B., author.
Title: Mediation : negotiation by other moves / Alain Lempereur, Jacques Salzer, Aurélien Colson, Michele Pekar, Eugene B. Kogan.
Description: Chichester, West Sussex, United Kingdom : Wiley, 2021. | Includes bibliographical references and index.
Identifiers: LCCN 2021008530 (print) | LCCN 2021008531 (ebook) | ISBN 9781119768425 (cloth) | ISBN 9781119805366 (adobe pdf) | ISBN 9781119805359 (epub)
Subjects: LCSH: Mediation.
Classification: LCC K2390 .L46 2021 (print) | LCC K2390 (ebook) | DDC 303.6/9—dc23
LC record available at https://lccn.loc.gov/2021008530LC ebook record available at https://lccn.loc.gov/2021008531
Cover Design: Wiley
I say nothing to one that I cannot say to the other, at the right time, with only a slight difference in emphasis and I report only the things that are indifferent, or known, or serve both in common. There is no reason for which I would permit myself to lie to them.
Michel de Montaigne, The Essays, 794B
Table of Contents
COVER
TITLE PAGE
COPYRIGHT
ACKNOWLEDGMENTS
INTRODUCTION
Conflict
Authority
The Other
Methods
An Overview of the Book
CHAPTER 1: THE PERIMETER: Explore Existing Mediation Practices
Before
Seeking Methods
The Origins of a Practice and Its Words
A Variety of Mediations
Conclusion: An Overflow of Methods or a Lack Thereof?
CHAPTER 2: THE PERTINENCE: Weigh the Pros and Cons of Mediation
Before
Engaging in It
Mediation Among Other Types of Third‐Party Interventions
A Past to Overcome: Seven Justifications in Favor of Mediation
A Future to Reconstruct: Seven Justifications in Favor of Mediation
CHAPTER 3: THE PRINCIPLES: Set Up Operating Principles
Before
Acting
The Principle of Independence
Versus
the Reality of Situations
The Principle of Neutrality
Versus
the Resort to Fairness
The Principle of Impartiality
Versus
the Need for Proximity
The Principle of Confidentiality
Versus
Potential Exceptions
The Principle of Respect for the Law
Versus
Spaces of Creativity
The Principle of Fairness
Versus
the Parties' Self‐Determination
The Principle of Self‐Determination
Versus
the Mediator's Push
CHAPTER 4: THE PREPARATION: Structure Pre‐Mediation
Before
Starting a Session
An Itinerary for the Pre‐Mediation Phase
A Preparation Itinerary for the Parties' Mediation
A Preparation Itinerary for the Mediator
Notes
CHAPTER 5: THE PORTAL: Set the Stage
Before
Problem‐Solving
P for Presentations
O for Objectives
R for Rules of Engagement
T for Time and Stages
A for Agreement to Mediate
L for Launch!
CHAPTER 6: THE PAST TOWARD THE PRESENT: Grasp the Problems
Before
Seeking Mutual Recognition
First Move:
Identify the Problems to Negotiate
Second Move:
Uncover Motivations
Third Move: Seek
Mutual Understanding
CHAPTER 7: THE PRESENT TOWARD THE FUTURE: Generate Possible Solutions
Before
Potentially Committing
First Move:
Invent as Many Solutions as Possible
Second Move:
Evaluate Solutions
Third Move:
Decide – Toward a Commitment Among Parties
CHAPTER 8: THE PITFALLS: Question Practices
Before
Acting
The Mediator's Initiatives: Measuring Risky Behaviors
The Parties' Initiatives: Facing up to Critical Moments
CONCLUSION: AN ETHICAL PERSPECTIVE AND QUESTIONING
Questioning: The Philosophical Foundation of the Mediator's Actions
The Mediator as a Powerful Ethical Model
BIBLIOGRAPHY
ABOUT THE AUTHORS
DETAILED TABLE OF CONTENTS
INDEX
END USER LICENSE AGREEMENT
List of Tables
Chapter 1
TABLE 1.1
TABLE 1.2
TABLE 1.3
TABLE 1.4
TABLE 1.5
Chapter 2
TABLE 2.1 The Mediation Matrix
Chapter 3
TABLE 3.1 The Matrix of Neutrality and Impartiality
Chapter 5
TABLE 5.1 Summary: Mediators Open a PORTAL
List of Illustrations
Chapter 2
FIGURE 2.1 The 8 A's: Mediation within the spectrum of third‐party approache...
Guide
Cover Page
Table of Contents
Begin Reading
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ACKNOWLEDGMENTS
We thank all the women and men who have contributed to the theory and practice of mediation all over the world: mentors, colleagues, friends, researchers, and thousands of mediators and participants in seminars who influenced the content of this book.
We are indebted to our mentors and the pioneers: Graham Allison, Michel Barnier, Béatrice Blohorn‐Brenneur, Jean‐Pierre Bonafe‐Schmitt, Jeanne Brett, Guy Canivet, Hervé Cassan, Pierre Drai, Jacques Faget, Roger Fisher, Thomas Fiutak, Steve Goldberg, AJR Groom, Michèle Guillaume‐Hofnung, Serge Guinchard, Charles Jarrosson, Hans Kelman, Etienne Le Roy, Jean‐Claude Magendie, Peter Maurer, Michel Meyer, Bob Mnookin, Christopher Moore, Jacqueline Morineau, Mirko Nikolic, Bruno Oppetit, Gérard Pluyette, Simone Rozes, Frank Sander, Jim Sebenius, Jean‐François Six, Alan and Ari Slifka, Howard Stevenson, Larry Susskind, Sid Topol, Hubert Touzard, Bill Ury, Keith Webb, Andy Williams, Howard Wolpe, and Yvan Zakine.
This book would not have seen the light of day but for our colleagues and friends: the members of the Harvard Program on Negotiation, IRENE at ESSEC, the Kellogg Dispute Resolution Research Center, the Oxford Programme on Negotiation, including Liliane de Andrade, Myriam Bacqué, Stephen Bensimon, Christian Blanc, Linda Benraïs, Jean‐Michel Blanquer, Bob Bordone, Claude Bruderlein, Nicholas Burns, Tessa Byer, Paola Cecchi‐Dimeglio, Erica Chenoweth, Alain Christnacht, Christopher Cooper, Tim Cullen, Jared Curhan, Jocelyn Dahan, Owen Darbishire, Florrie Darwin, Pierre Debaty, Laurence de Carlo, Jacques Dercourt, Bruno Dupré, Martin Euwema, Luc Fauconnet, Lorraine Fillion, Pamina Firchow, Paul Fisher, Mari Fitzduff, Lior Frankiensztajn, Gary Friedman, Bruno‐André Giraudon, Don Greenstein, Jean‐Édouard Grésy, Jérôme Grimaud, Eric Guérin, Susan Hackley, Sheila Heen, Sophie Henry, Antje Herberg, Jocelyne Hervé, Jack Himmelstein, David Hoffman, Sergio Jaramillo Caro, Isabella Jean, Alan Jenkins, Ted Johnson, Sandra Jones, Peter Kamminga, Michel Noureddine Kassa, James Kerwin, Ihab Khatib, Marc Kiredjian, Anne Landois, Enrico Letta, Justin Lêvecque, Maria Madison, Joseph Maïla, Patricia Malbosc, Francesco Marchi, Liz McClintock, Gerry McHugh, Oliver McTernan, Philip Milburn, Jordan Morgan, Nicolas Mottis, Anaide Nahikian, Kalypso Nicolaïdis, Eugene Nindorera, Fabien Nsengimana, Charlotte Pailleux, Ricardo Perez Nuckel, Gabrielle Planes, Bill Rapp, Jim Reiman, Herve Remaud, Tina Robiolle, Monique Sassier, Veronique Schneider, Dan Shapiro, Linda Singer, Marianne Souquet, Guhan Subramanian, Arnaud Stimec, Christian Thuderoz, Joëlle Timmermans‐Delwart, Emmanuel Tronc, Michael VanRooyen, David Weil, and Andreas Wenger.
We thank Fiona P. Noonan for her contribution to the translation and to our researchers and assistants: Julianna Brill, Lara Cazemajou, Jacee Cox, Katherine DeCourcy, Michael Dumont, Autumn Galindo, Sarah LaMorey, Cécile Seguineaud, and Elise Willer.
Finally, we thank our colleagues, participants, and mediators in various institutions: Brandeis University, College of Europe, ENA, Ecole Polytechnique, Essec Business School, European Commission, European Institute of Peace, European Peacebuilding Liaison Office, European University Institute, United States Institute of Peace, Alliance for Peacebuilding, International Association for Conflict Management, Harvard University, Sciences Po‐Paris, French Ministry of Foreign Affairs, Saïd Business School – Oxford University, UNITAR, various universities, and mediation associations.
INTRODUCTION: Why Do We Need Mediation Methods?
Mediation includes four key concepts that will form the basis of this book: conflict, authority, the other, and methods. Let us explore these terms and how they interconnect with the purpose of this book.
Conflict
Conflict is an inevitable dimension of life. First, we all experience inner conflicts between antagonistic aspirations of different parts of our identity. Second, when we bring together groups of individuals, tensions may arise for many reasons: clashes of values and norms, resource allocation, definition or interpretation of rules, reward and sanction mechanisms, etc. Many causes trigger a conflict, which can deepen over time.
On the positive side, conflict is creative; it helps reveal how obsolete or unfair certain social arrangements might be. It expresses frustration in the face of perceived or experienced injustice, prolonged oppression, and denial of identity. Conflict provokes new questioning, shakes up established routines, inefficient returns, and can spur innovation. American civil rights activist Septima Poinsette Clark (1898–1987) has remarked: “I have great belief in the fact that whenever there is chaos, it creates wonderful thinking. I consider chaos a gift.” Conflict is the engine at the heart of “creative destruction” theorized by economist Joseph Schumpeter (1942). This is the bright side of conflict.
But, on the other hand, conflict is also destructive. Waged among groups – countries, organizations, businesses – and individuals, conflict endangers solidarity, cooperation, and mutual exchange; and thrives on selfishness, competition, and self‐righteousness. Conflict often generates aggression and inflicts suffering. It has a built‐in escalation dynamic – whoever is blamed first is provoked to retaliate, feeding a new assault of greater intensity that causes an even more massive counterattack, and so forth. Each side often looks to dominate and crush the other, while imposing their solution. As damages and victims accumulate, relationships shatter, identities are denied, time is lost, and resources are squandered. Conflict takes a deep emotional toll (e.g. sadness, anger, suffering) and inflicts significant material damages (e.g. wasted resources, property destruction). In the sphere of armed conflict, an even more detrimental result of conflict is the violation of human integrity and dignity (e.g. injuries, rape, death, massacre, and genocide).
This ambivalent reality of conflict – a powerful engine of change, but also an agent of destruction – creates concerns that all human societies address: how to manage conflicts? How to prevent them, mitigate them, resolve them, and even transform them? And who should intervene? This brings us to our next point.
Authority
Conflict resolution systems are often founded on authority. In private life, parents have the authority over their children and over the rules to address familial conflict. In organizations, the upper level has “formal“ authority – drawing on the official title or position in the hierarchy – to settle conflicts at the lower levels. In society, overall, the law, in distinguishing between what is legal or not, makes each person part of a system of conflict prevention and regulation. If, despite everything, two parties are in conflict about the interpretation of a legal norm, the judge is there to decide with all the authority conferred upon them by the law. In each case above, authorities are entrusted with the role of ending the conflict.
But authority shows its limits in contemporary society, owing to a combination of factors, including the rise of individualism; the erosion of moral, or religious, norms; the decline, renewal, or rejection of traditional authority figures – the father, instructor, professor, priest, police officer, etc.; the growing influence of liberalism and its deregulation; the democratization of societies and decision‐making systems; an increased transparency and questioning of hierarchy in organizations (i.e. “flat organization”); the decline of Fordist business as a bureaucratic organization; the contestation of legitimacies – scholarly, scientific, technical, legal, administrative – and biases – patriarchy, gender, race, ethnicity, sexual orientation – and, in return, the rise of participative mechanisms of consultation, dialogue, and negotiation.
The First Move: A Negotiator's Companion (Lempereur and Colson, ed. by Pekar 2010) summarized the tendency of this vast sociological movement: “impose less and propose more.” In conflict management, whatever the context, the involved parties hardly accept a solution imposed on them by an outside authority. There is, everywhere, a growing desire to stay in control of one's life, plans, and trajectory – including one's conflict and its settlement.
The rise of negotiation as a mode of joint decision‐making aligns with this shift away from unilateral, top‐down diktat. But what happens when negotiation fails and the parties are unable to define an agreement that satisfies both of them? One possibility is to fall back on an authority – a boss or a judge. Another is to invite a third party – neutral, impartial, and benevolent – to reignite negotiations, facilitate the exchanges, and empower the parties to explore the conflict, bring their essential needs to the surface, imagine possible solutions, evaluate them, and finally choose those to which they freely and mutually commit. This is, in a few words, what mediation stands for: it offers a pursuit of negotiation by other moves. It reinforces a trend where the law is first the law of the people (Lempereur 2011a, 2011c).
A mediator is not an authority per se. They do not have the power to make decisions. They do not coerce, choose favorites, and very rarely impose limits. On the contrary, they always seek to empower the parties. They facilitate, encourage, and motivate. Theirs is a strange art: the parties accept their presence at the negotiating table precisely because they have no formal authority over them. This is why, when mediation succeeds, the parties are more likely to recognize the agreement that they themselves produced – with the mediator's support – and discover the strength of this process of third party's facilitated negotiation, and its profound legitimacy.
The Other
Faced with conflict and rejecting the presence of an external authority does not necessarily mean that individually each party has full power to shape the outcome. The parties need to work together, and their cooperation constitutes an inescapable variable in the equation: as much as the parties are part of the problem, they are also part of the solution. Each party cannot ignore the other, just as the other cannot ignore them. Each owns a part of the story, likely contributed to what happened, and is therefore asked to feel responsible for overcoming the conflict.
This is why “the other” constitutes a fundamental theme in this book. In fact, putting the other at the heart of the exchange is essential for
each of the parties in conflict
, who can develop empathy toward the other, i.e. put themselves in the other's shoes, so that both sides engage back and forth in a double move toward mutual understanding, where (i) each understands the other better and (ii) each is better understood by the other;
the mediator
, who, instead of seizing ownership of the conflict, preserves both parties' control of their conflict and its resolution, through reciprocal recognition of the “two others” and hopefully by each other.
The mediator plays an intermediary role between the two “others.” The centrality of the other is evoked in the
past
, a time of conflict, ignorance, or condemnation of the other, with different perceptions and opposing visions of “this” radically different other, separation and alienation from the other, creation of negative otherness;
present
, a time of mediation, which facilitates a dialogue between the two estranged others, allowing them to analyze the similarities and differences between them in their narratives, in order to foster a mutual recognition of identities and needs, where each “other” might come back in renewed proximity with one another, and where this possible restored link builds some readiness to explore solutions;
future
, which may still be uncertain but which can be built together by creating a common ground for a renewed relationship, one where the other is not simply
present
with me, but where the other sees themselves as having a
future
with me in it.
Integrating the other happens through deepening understanding, which requires active perceiving, i.e. a methodical use of listening and looking, and probing – which everyone thinks they practice well, but which can often be improved. The mediator's display of skilled understanding of the two parties is often the platform that enables both of them to understand each other.
Methods
Everyone can improvise and play the role of a mediator, and some perform it well: between one's brothers and sisters, between one's parents and relatives in a dispute, and between classmates, or friends, or colleagues at work. Chapter 2 addresses the question of “informal mediators.”
The fact remains that, except for limited cases, effective mediation is rarely well founded on instinct only. There is no doubt that some people are more gifted at empathy than others. They might be seen as naturals in benevolent listening. However, they may not employ some fundamental tools of inquiry and probing, or restating that the mediator needs to master before running a session. Learning such tools on the job or by trial and error can be a slow process, and, worst of all, sometimes the consequence of avoidable failure. Mediation is therefore a matter of methods: principles and good practices exist, tools are available, techniques are checked, traps are identified – all forming a practical body that everyone can acquire and implement (Lempereur, Salzer, and Colson 2007). As mediation experience grows, such methods need to be tested, refined, and adjusted in an ongoing circle of learning.
Our book integrates both methods and experience. As academics and mediators in the field, including in high‐stress/‐stakes/‐impact environments, we combine knowledge and know‐how, as we have practiced and refined them over decades through a worldwide practice for international organizations, governments, NGOs, and corporations. As a result, the models, tools, and examples this book proposes develop several possible methods for mediation. We hope this book will be
helpful
, whether you are a potential or a professional mediator, an involved party, a lawyer, an adviser, or a stakeholder;
practical
(but not simplistic), as it offers operational principles; it raises real problems, and proposes concrete solutions;
subtle
(but not abstruse), as it invites self‐awareness, persistent reflection, a capacity to review actions, and change course;
comprehensive
, as it approaches
mediation in general, as a process,
in what is applicable to most types of mediation – diplomatic, family, criminal, consumer, labor, corporate, etc. – even if each domain has its specificities (Lempereur
1999b
,
1999d
);
specific
, because it is a book that opens to every reader the possibility of choosing the moves and tools adapted to their needs, experience, and context – to build their own mediation path.
Writing this book is also a part of a broader objective that transcends the dimensions of a single book. It is about helping to reverse a paradoxical trend: Why is mediation still so little practiced around the world while its potential is so great? Although many organizations utilize third‐party facilitators, mediation remains a relatively little‐used mechanism compared with the plethora of cases in court. Maybe there is not yet, despite the advocacy efforts, enough accessible information on what, concretely, mediation offers: how is a decision made, what are its advantages and limits, how it unfolds, what are its phases, what is a mediator's role, what can the parties expect, etc.?
This is what this book proposes to share with the reader, so that more people, according to their circumstances, consider mediation a useful approach to overcome a conflict or even wish to become mediators themselves.
An Overview of the Book
Chapter 1—The Perimeter gives you an overview of existing mediation practices. What is the scope of mediation today? Whether they are informal, temporary, or institutional, or whatever their areas of action, mediators develop an increasing space in many sectors of life: personal, social, economic, administrative, and political. We paint a landscape of these activities, illustrating a wide variety of practices and models. This chapter highlights some variables of differentiation – before and during mediation – along with some guidelines for practice.
Faced with this diverse reality, Chapter 2 explores the Pertinence of mediation. What are its advantages and limits? In what situations should one choose mediation as a mode of action to resolve a conflict? Besides mediation, we present seven third‐party approaches that offer complementary wisdoms in the face of conflict. We also analyze two series of criteria that favor mediation: the first lists blockages that freeze the present; the second turns toward the potential of mediation for a renewed future among the parties.
What are some fundamental guidelines that mediators need to keep in mind to guarantee the quality of the process? Chapter 3 examines seven Principles of mediation: independence, neutrality, impartiality, fairness, confidentiality, respect for the law, and self‐determination of the parties. As we clarify these essential principles for practice, we also underscore possible tensions among them and how to address them. For example, how do we remain neutral while supporting the fairness of an agreement? How do we combine confidentiality and respect for the law?
Chapter 4 considers the Preparation of mediation sessions, beginning with pre‐mediation. Whether one is a mediator, involved party, or adviser, we prepare the essential elements before mediation. How to propose, refuse, accept, or, if necessary, impose a mediation? How to choose mediators? What does a “contract to mediate” ahead of a session look like? Whom to convene for a mediation? How, concretely, to prepare as a party or as a mediator? What modes of intervention to choose? And how to arrange the place where mediation happens? There are many questions – strategic, operational, or simply practical – to prepare for.
As we contemplate a mediation session, Chapter 5 lays out what we call the PORTAL, i.e. the introductory six initial moves to connect and to structure the mediation process:
P
resentation:
Establish contact between the parties and mediator.
O
bjectives
of mediation
:
Clarify what mediation is and is not; what the mediator's role will be, and what the mediator expects from the parties.
R
ules:
Explain the guiding
principles
for the process, and obtain the agreement of the parties on them.
T
ime & Steps:
Verify the availability of the parties, the calendar, and the completion date, and also outline the successive next phases in the mediation process.
A
greement:
Check one last time that the parties have agreed to proceed as outlined.
L
aunch:
Start the work on the conflict, the substance of the mediation.
The book then devotes two chapters to the methods that apply to the next phases in mediation. The first one concerns understanding the problems of the past, while the second seeks workable solutions for the future.
Problem‐solving in Chapter 6 explores the Past Toward the Present. Before venturing to resolve a conflict, we need to explore its background. Inquiring, probing, and restating, as well as managing emotions, become indispensable tools to explore. This stage of the process involves three successive moves, which sometimes overlap:
Identify the Problems
: Invite each party to tell their story of the conflict and raise their key requests.
Deepen Our Understanding of the Problems:
Through deep probing and understanding of the respective narratives and positions, try to spot the underlying needs, motivations, or interests that are essential to each party.
Mutual Understanding:
Work on reciprocal recognition of the causes of the conflict and of the current needs of the parties.
Problem‐solving in Chapter 7 leads from the Present Toward the Future. Once mutual understanding of the root causes of the problems and of each other's needs has been reached, the mediation then focuses on how to build solutions and scenarios in the future to meet the needs identified in the present. Here, three successive moves are useful:
Invent Solutions:
Brainstorm as many solutions as possible. How to come up with solutions for oneself and for the other in terms of quantity and quality? Here, the techniques of value creation and creativity will be presented, as well as possibilities for the mediator to suggest ideas.
Evaluate Solutions:
Formulate justification criteria to filter solutions that might work for both parties.
Decide:
If possible, summarize and formalize a reciprocal commitment, for which the next move is to ensure follow‐up.
The end of every mediation session focuses on the process of the next steps, and on the appreciation of people's engagement, whether they have reached agreement or not. US President Barack Obama used to say, “hard things are hard.” Successful mediation is no exception, and there will likely be numerous obstacles on the way. How to foresee and fix – or, at least, manage – them?
The final chapter, Chapter 8, explores potential Pitfalls, traps that the mediator needs to manage no matter how they emerged. Some mediators may have good intentions, but their instinctive behaviors can have negative, unintended consequences. We present probable causes of such behaviors and their risks, while suggesting practical approaches to avoid them. Other problems stem from the behaviors of one or both parties. Again, some of their moves, they believe, will serve their interests, but actually end up damaging the very process of mediation. Other challenges arise in spite of the parties' efforts. This chapter proposes methods for the mediator to overcome these critical moments in the interaction with the parties.
Our Conclusion illustrates the close links between questioning and ethics in the mediator's role. It suggests more than just a technique, but rather a philosophy for oneself and the other, for the mediator and the parties.
A final point on the book's format concerning examples:
Examples
Throughout the book, whenever we offer examples – either inspired from documented events or from the authors' experiences – to illustrate a point, we will use this indented stylistic layout.
We also add under this format practical suggestions or formulations that serve as an inspiration to help mediators develop their own methods.
May this book help mediators, parties, stakeholders, and everyone else facilitate the peaceful, constructive, and productive resolution of conflicts. Happy and impactful reading!
CHAPTER 1THE PERIMETER: Explore Existing Mediation Practices Before Seeking Methods
Before proposing a mediation method, it seems important to offer an inventory of existing practices, which will give us the opportunity to explore the breadth and richness of mediation. After a brief tour of the origins of the word, this chapter will examine the multiple instances – informal, ad hoc, or institutional – which contribute to the current mediation culture. Examining numerous mediation examples, this chapter argues that a great diversity of practices can inspire us in the service of the peaceful resolution of conflicts.
The Origins of a Practice and Its Words
Ancient Sources
Historical texts enlighten us on the ancient use of mediation practices. Research (Cardinet 1997) shows that the written history of mediation started around 500 BCE. Notably, the word mesites written on papyrus refers to Mitra, half‐god and half‐man, thus creating a link between humanity and the divine. Further, in his Constitution for Athens, Aristotle notes that Solon is a reconciler between two camps. In the second century CE, mesites was translated into Latin as “mediator.” Human beings, as individuals or belonging to groups of varying social organizations, needed to determine who would “intermediate” among them, and between them, God, and the universe.
This is how Christian theology offers one of the first uses of the term, with Jesus as “mediator between God and mankind” (I Timothy 2:5). In 1265, the word mediateur first appears in French in Jean de Meung's Le Roman de la Rose. In 1382, borrowed from the Latin word immediatus, appears the word immédiat meaning “direct and without intermediary”; in 1478, the word médiat, from the Latin mediatus, is used to refer to an indirect action. With the meaning of “intermediary intended to reconcile persons or parties,” the French use of the word mediateur dates to the sixteenth century. The word mediation recalls Old English midd for “middle.” In 1540, it meant “divide in two equal parts.” By the middle of the seventeenth century, the meaning was “occupy a middle place or position.” The “act as a mediator, intervene for the purpose of reconciliation” likely hails from 1610, while “settle by mediation, harmonize, reconcile” is probably from the mid‐1500s (Online Etymology Dictionary 2020). In 1694, the term mediation appears in the dictionary of the French Academy. It is then used widely, even in literature such as in La Fontaine's fable “Vultures and Pigeons”: “They tried their hand at mediation / To reconcile the foes, or part” (La Fontaine 1668, Fable VIII, 7th book).
Wicquefort or the old and difficult “status of mediator”
A diplomat born in Holland, Abraham de Wicquefort (1606–1682) closely observed seventeenth century diplomacy during the 1648 Congress of Westphalia. In 1680–1681, he published The Ambassador and His Functions, a scholarly analysis of this profession, which was then in full expansion. Illustrating how established was the practice of mediation between sovereign powers, section XI of volume 2 is entitled “Of mediation and ambassadors‐mediators.” Wicquefort already saw the difficulty of the task: “The status of mediator is one of the most difficult for the ambassador to bear, and mediation is one of his most unpleasant tasks.”
More recently, the Convention for the Pacific Settlement of International Disputes, signed at The Hague in 1907, had for its main objective in Part I: “The Maintenance of General Peace.” The path to be preferred for this purpose was specified in Part II: “Good Offices and Mediation.”
Mediation has been a research topic for a long time already. In France, research on mediation dates from the beginning of the twentieth century. A bibliography on the period 1945–1959 contains some 572 references of books and articles (Meynaud and Schroeder 1961). These writings and works relate mainly to mediation in labor relations and collective conflicts, but also in international relations.
The Meaning of a Word
Mediation, in the etymological sense, is constituted by a space, a time, an object, a language, or an intermediary person who opposes the dangers of immediacy – which might lead to overreaction and spiraling confrontation. Historically, mediation holds two distinct meanings, the second of which forms the subject of this book:
An intercession, or intervention in favor of another whom we represent
. This is the case, for instance, when a single real estate agency acts as the mediator between the seller of a home and potential buyers. The word retains the meaning of a “reciprocal” intercession for all parties.
An impartial external intervention, offered to (and/or requested by) conflicting parties, to organize exchanges with a view to building mutually acceptable solutions
.
Mediators, moderators, facilitators, neutrals, go‐betweens, third parties, ombuds: there are many terms, but they refer to the same situation: the presence of an intermediary – a person or a group of people – who intervenes between two or more parties in conflict, seeking to facilitate negotiation between them with a view to arriving at a peaceful solution agreed by them. For Wicquefort, “the word mediator fairly well expresses [the] function: it consists properly in putting oneself in the middle to bring together the parts that have moved away.” To designate the act of mediation itself, the verb “to mediate” is commonplace in English, while the French modern equivalent – médier – remains seldom used.
Mediators: An Overview of Current Practices
As a starting point, let us list key variables for the diversity of mediation practices:
Time:
Mediation can be preventive, post‐conflict, or even post‐litigation (for example, to support the implementation of the judge's decision in family or criminal matters – also called post‐sentencing).
Areas:
This refers to areas where the existence of mediation is identified and named, from family to schools, from neighborhood to work, from corporate to environmental or international.
Objectives:
Relational, facilitative, restorative, and curative. There are even decision‐making objectives that move away from the creation of agreements by the parties themselves, in order, above all, to reach a decision: evaluative mediation (with the objective of evaluation in the light of the law; Fruchter
2019
) and mediation‐arbitration, or “Med‐Arb” (Baril and Dickey
2014
; Bickerman
2018
), where it is expected that mediators will become arbitrators or pass the case to arbitrators, thus ensuring a certainty of settlement, accepted in advance by the parties.
Number of actors:
Personal or collective (team, large group, country).
Without claiming to be exhaustive, this section will review who may be involved in mediating, as well as where and how these mediators operate. Three main categories stand out: informal, ad hoc, and institutional mediators.
Informal Mediators
These mediators may not call themselves mediators, but do engage in mediation or an activity very close to it. They could be anyone who, in everyday life, helps parties to listen and understand each other and co‐create a solution to which everyone agrees. Here is a glimpse of the variety of these informal mediators:
A student:
Between classmates.
A teacher:
Between students, colleagues, parents and teachers, teachers and students.
An office colleague, boss, union official, or staff representative:
Between people at work, with customers or suppliers.
An agent, broker, or representative:
Stepping in at a given moment as an objective facilitator, and not as a defender of a particular cause.
A solicitor:
Between the parties in conflict.
A local elected representative:
Between their constituents, between the latter and economic actors or the government.
A 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 mediators in charge of managing internal disputes among their stakeholders.
We owe the invention of institutional mediators to the Swedes, who created the ombudsman in 1809: a man in charge of a mission (ombuds), in this case the search for justice between the State and its citizens. A similar function has developed in neighboring Nordic countries, such as Finland in 1953, then in the United Kingdom and the United States in the 1960s. In 1973, France created the Mediator of the Republic to facilitate disputes between the government and its citizens. Many universities have created ombuds services.
Why appoint institutional mediators? The intention is to establish a human link between an individual and an organization, which at first glance looks like a bureaucratic machine. Even in organizations that strive to respect rights, an individual might feel lost or powerless, when faced with decisions that seem unfair or seem to impinge on their rights. In these cases, mediators can help to exercise, between a person and an organization, an ex post review of the quality of the decisions. Even if the organization appoints and remunerates the mediators, it needs to guarantee their independence of judgments and actions, for them to seek fair solutions between the organization and the applicant. In fact, taking into account the current craze for mediation, such services will only serve the long‐term image of an organization, if they also benefit from real resources and skills (Lempereur 1998b). Many leaders of organizations sincerely appreciate that “their” institutional mediators exercise critical functions and contribute to conflict reduction and to stakeholders' improved satisfaction.
Whichever organization hosts them, institutional mediators generally employ a method characterized by the following:
Written mediation, carried out on the basis of a complaint reported by one stakeholder (for example, the employee or the user on one side, the department concerned on the other).
A compliance review of contractual rules or established law.
A fairness test that mediators perform.
An opinion of the mediator (or of the mediation commission), which makes suggestions that the parties remain free to follow or not. This advice sometimes paves the way for a new negotiation.
An additional advantage of institutional mediators lies in their ability to recommend, within their organization, the implementation of the solution advocated at the end of the mediation they just conducted. There is thus a coherence between the problem posed, the proposed solution, and the people or organizations involved in the implementation of this solution.
Institutional mediation also aims to propose generalizable solutions, fully integrating the possibility that they constitute precedents that can be referred to later. Because of their role, institutional mediators inevitably reveal patterns in the interpretation of, and solutions to, some recurrent conflicts; as a result, they create some predictability of outcome. In addition, they derive recommendations from their activity, which they communicate where appropriate within their organization, or even make public in annual reports. These recommendations often help to revamp organizational structures and procedures.
Finally, in general, it is the institutional mediator (and not the parties) who proposes solutions in the form of opinions or recommendations. Institutional mediators thus fit into the “mediator as adviser” model that we will develop next. As evidenced, this typology of mediators – informal, ad hoc, institutional – echoes a diversity of mediation practices.
A Variety of Mediations
The above categories illustrate a diversity of mediation models (Lempereur 1999a), with various methods, and translate into multiple practices.
Models, Methods, and Practices
What do we mean by these three expressions?
Models – By “models” we do not mean examples to follow, but rather broad types of mediation approaches, featuring the characteristics representative of most mediators (Lempereur, 1999a). We can distinguish, for example, mediators as advisers or as facilitators.
Mediators as advisers
try and find solutions for the parties. Such mediators, also called
evaluative,
provide, after listening to the parties, suggestions which they find relevant, balanced, and fair. Parties remain free to follow or not to follow this advice, to modify or adjust it.
Mediators as facilitators
help the parties find their own solutions. Such mediators, also called
facilitative
(Brown
2002
), do not offer any solutions, but try to make solutions emerge from the dialogue between parties. They invite parties to explain their views and hopefully acknowledge each other. Like midwifes, they make them ready for, or facilitate, a joyful birth at the ripe time. They consider that parties always understand their problems better than a mediator so that they can deliver their own best possible solutions themselves.
At the crossroads of the two models
are the
evocative mediators,
who are
providers of ideas
– but not givers of lessons. Based on their own personal experience, mediators add to the ideas of the parties, if the parties did not get them by themselves. This is done not as “advice” but as a “gift of ideas,” without prejudging whether the parties will perceive these solutions as suitable or not. In short, these mediators wonder aloud about the adequacy of this or that solution. Knowing that they are not a party to the conflict, they offer without advising, insisting, pressing, or pretending in any way to alone hold the keys to the just or fair solution.
Depending on whether they claim to be an adviser or a facilitator, mediators do not use the same resources. According to a classical typology (French and Raven 1959), mediators can leverage different power resources vis‐à‐vis the parties: they can demonstrate expertise that the parties trust; their status may grant them special legitimacy; the parties can value their relationship with them; they may have crucial information which they can make available to the parties; or they can reward or exert pressure on the parties.
Methods – Within these three overarching models, mediators make method choices. That is to say, they select reasoned approaches to achieve their goals. This is flexibility within the framework. There are many method choices, and we will come back to them. For example, is there, at the opening, an oral agreement or a written contract on the rules of the mediation process? Do we communicate in writing or orally, face to face, by videoconference or by phone? How is the time dedicated to analyzing the past allocated in relation to that spent exploring possible avenues for the future? Is the final agreement drawn up by the parties, their lawyers, or the mediators themselves under the supervision of the parties?
Practices – At a more detailed level, within the choices of methods, each mediator brings their own personal “way of proceeding.” Mediation style may also vary in the same person, depending on the situations encountered. Mediation styles will crystallize in the details of the choice of words, the ways of welcoming, the handling of space and time, the questions asked, the use of silence, the transition from oral ideas to putting the solution in writing, and other various initiatives of mediators.
Some Variables
The extraordinary diversity of mediation practices is due in particular to the large number of possible choices regarding the methods. To illustrate this diversity, the following tables present the main variables, which offer endless combinations. As of now, some light will be shed on the key choices.
The question of the free acceptance of mediation – or, on the contrary, when it is imposed – deserves to be raised immediately (before being further examined in Chapter 4). What happens, depending on whether the parties hear a suggestion (“How about going to mediation?”) or receive an injunction (“You must go first to mediation!”)? In fact, when the judge says to the parties: “I strongly suggest that you go to mediation,” they are more or less forced to do so, even if the judge adds: “Do you agree?” In mediation sessions, we have frequently heard expressions such as “we did not want to displease the judge.”
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.
