Introduction to professional mediation

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This text has been prepared for the First International Conference of the Judicial Mediation, on October 16-17, 2009, organized and published by the European Association of judges for mediation. By Jean-Louis Lascoux

Contents

[edit] Introduction

All conflicts or conflictual situations find someday an issue:

  • Abandonment of the emotional and material claims, exhaustion;
  • Death of one of the parties, or inability to act;
  • The parties reach an agreement:
  • which can be imposed,
  • or chosen

From the examination of conflict resolution processes, two approaches can be observed:

  • A spontaneous approach which consists in seeking to understand what is happening and to understand the other: it is the Reflection within otherness ®.
  • And when this research of understanding does not enable to go out of the conflictual situation, the mode of Reflection within adversity ® takes place.

When we appeal to a third party to support the conflict resolution, assistance in adversity is obtained through the advices in strategy or law, while assistance in otherness is obtained through the professional mediators.

Professional mediation leads the amicable resolution of disputes out of the stereotypes of prejudices and good intentions. In other words, apart from a professional practice, mediation offers a restricted way to the amicable resolution of disputes, remaining in a functioning related to sympathy, good sense and feeling, which ones decrease the potential of a process that aims at extending the freedom of decision of people.

When a conflict has reached the point that the parties cannot see another issue than resorting to the legal system, it is because they have reached the limits of their capacity, desire and motivation to discuss with each other. They feel they have done everything, tried everything... in vain. Wishing to recognize their rights and legitimacy, they reach the idea that there is no other solution than to submit their decision to a third party. Imagining that there might still be a possibility of discussion appears to them fanciful, illusory, and maybe completely ridiculous. The approach of otherness ran out in the sympathy.

Indeed, very often, the parties have resorted to third parties full of good intentions for the outcome of a possible reconciliation or compromise. These third parties have tried to moderate, to conciliate, to highlight the practical evidence.... they have referred to the law, emphasized the risks, sometimes discussed one after one. But failing to be able to handle or develop a rigorous process, the dispute remained entangled in the contradictions of the parties who would like to resolve it, but fail to resolve it.

In a conflict, the parties' strategies are more or less elaborated and developed, and most of the time paradoxical. They consist in creating alliances, conceiving relations in terms of camp or opposition, of consent or rejection. Their failure leads the parties to abandon their freedom to choose the solution; that is to say, to abandon their free decision to a third-party judge, even if he maintains the adversity, does not solve anything, or considers the litigation under an angle that will be frustrating for the parties. In this case, the parties will remain with most of their dispute.

Under these conditions, a mediation proposal that would appeal to the goodwill or good faith of the parties seems conceivable for people out of the conflict who base their position on common sense. It is unacceptable to the protagonists. In other words, it is unrealistic to imagine obtaining a free consent to a mediation process of that nature.

[edit] The Professional Mediation

To establish a mediation that works, the traditional definitions of people and conflicts should be reviewed and mediation as a separate discipline should be thought. For example, regarding the conflict, it is necessary to go beyond the blurred definitions that attribute either responsibility or irresponsibility, in the moral or legal sense, of the emergence of the conflict. It is not wrong to consider the conflict as the result of a disagreement related to issues, interests or divergences of viewpoints, but it does not give any real mean of investigation to a professional, as long as the conflict is not thought only in terms of "expertise" and "appeal to common sense".

Professional mediation is an innovative proposal. Initially, it is a concept promoted since 2001 by members of the first non-governmental organization that has chosen to represent and defend the material and moral interests of its members as professional mediators.

[edit] The Elements of the Conflict

This approach, defined as a separate discipline, mainly proposes to examine the conflicts which are usually treated by the judicial system. This approach identifies three components:

  • Legal: that is to say the legal link between the parties;
  • Technical: that is to say the "practical", organizational or financial aspects;
  • Emotional: that is to say affective, typical of a deteriorated relationship, which maintains the dispute beyond the possible settlement of the conflict in its legal and technical aspects.

A dispute is considered eligible by the judicial system only if it has a legal component. The tools of the professional, i.e. the lawyer, will be the jurisprudence and the texts of law. It can be noticed that the legal component is a consequence of the relationship and not a cause.

The whole conflict resolution system, which is the reference point in our society, proposes an angle of approach through the result. This approach tends to distort the reality of the relationship.

The second component of the conflict that will be considered by the Courts is the technical, practical, material, tangible, assessable and quantifiable aspect. This aspect of the conflict can relate to the possible breach of a contract, a material damage subject to a claim under the legal arguments referred above. If this aspect can be assigned to the magistrates, it may sometimes require the assistance of an expert of a specific area like a surveyor, a doctor, an agricultural expert, a real-estate expert, an automobile expert...

These first two components of a dispute may not lead to a legal proceeding. If we strictly consider these legal and technical elements, the conflict might remain under the framework of a negotiation aiming the material repair or the legal planning if necessary. A reconciliation approach is also possible. A transactional system can also be arranged. The disputes that mainly include these first two aspects should not finish in the tribunals. As long as there are only these two elements, the parties have not exhausted all means of discussion to reach agreement.

In reality, a third element intervenes and explains the litigation of a dispute: the affective element, the emotional factor. It is this element that makes the parties declare they are unable to continue a dialogue, a negotiation, because they feel they have exhausted all possibilities and they do not want to invest more in any further discussion.

The emotional element may have origins indirectly related to the protagonists; some third parties may be interested that the conflict continues on this form or under latent forms. The interest may be the defense of a moral or financial issue. Whatever, the emotional element is the one that explains the reason why the parties abandon their freedom of decision, which is part of the life of a contract, to a third-party. Submitted to a lawyer, this element may be compensation for moral damage.

These three elements seem to be constant in all disputes submitted to the judicial system. They are examined in a certain order, starting with the legal element, continuing with the technical element and finally finishing with the emotional element.

This evidence makes us adopt a new perspective when we develop a process that consists in reversing the approach of these elements which constitute judicial conflicts. This is here the starting point for a professional approach of mediation. The process led by the mediator will start by privileging the clearance of the emotional dimension which often obscures the technical reality of the conflict, but which is nonetheless the component of the motivation.

The work of the mediator is to disentangle what, in the history of the relationship, has created the conflict. This work enables the parties to initiate a discussion and to be accompanied in their reflection. The mediator develops a mindset of otherness and the recognition of the parties.

In his approach of the conflict, he begins with the emotional element, then the technical and finally the legal element, which one may lead to an agreement, may it be written or not. He will have to lead a process that begins with individual interviews in order to prepare the parties to a meeting that was previously inconceivable and to lead to a discussion hitherto unimaginable.

[edit] Posture and Techniques of the Mediator

There are two kinds of skills acquired in this field:

  • To know how to conduct interviews;
  • To know how to conduct meetings in conflicting contexts.

The mediator accompanies the change of posture since the parties, during the course of the dispute resolution, will reconsider their positions and dynamics which consisted in trying to impose their solution and viewpoints to the other party.

The choice made by the Professional Chamber of Mediation and Negotiation is to defend, as a union structure, the material and moral interests of mediators who promote the discipline under this methodological and pragmatic angle, which one consists in implementing a set of means in view to obtain a result regarding three possible outcomes:

  • Resumption of the relationship as it was before the conflict;
  • Adjustment of the relationship;
  • Consensual rupture.

The work made regarding the ethics and deontology by the PCMN has enabled to identify four approaches of thought which tend to consider the conflict resolution. These trains of thought define the human person. The oldest one is spiritual, according to which the person comes from a supernatural will, and inside which the good and evil fight, that includes the notion of sin, fault, guilt, the research of forgiveness and redemption. Every conflict is likely to find here an explanation. If we adopt this viewpoint, the legitimate mediator is the messenger of this supernatural will, whatever his obedience.

The second approach of thought, heir of the first one, is the one by which the human person is defined as a subject of rights and obligations, forced signatory of a social contract that involves him much before his majority. The mediator that may be intervened is the one who will argue the proper right, the equity, and the parties will have to submit to it, even though they do not fully agree.

The third approach, more recent and laicizing the first one, propose a curative and therapeutic observation of the conflict. The human person is prone to impulses and neuroses that require an intervention to treat them. These neuroses would find specific expressions in the conflictual situations. The mediator would be a therapist, and mediation would be a therapy, if not a cure.

According to this overview of the approaches of thought and conceptions of the human person, professional mediators adopt a perception of the human person as being a learner all along his own existence and relationships with life. In other words, what characterizes the human is the ignorance of his own behaviors and the difficulty to master his tempers. In this conception, the mediator is a guide for reflection, awareness and an indispensable aid for decision-making during difficult situations. It acts by accompanying changes and research of solutions.

[edit] Conclusion

To conclude this general introduction to professional mediation, which one could require a development of the techniques of interviews, facilitation of meetings, aid to individual and collective expression, it must be emphasized that a professional mediator must learn how to maintain a posture of independence regarding all organizations that resort to his services and regarding the relationships with the hierarchical system and inherent cultural references. Moreover, the professional mediator must learn to maintain a professional distance regarding the moral values of the parties and their issues, that is to say, to remain impartial. Finally he must learn how to accompany the parties in the adoption of a solution that suits them without being himself the evaluator of the relevance of this solution which, if he identified himself to the parties, could not suit him. In short, he must personally integrate the motto of the professional mediation: "independence, impartiality, neutrality".

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