Mediation

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Mediation is a discipline of accompaniment for individuals and groups. Mediation has various applications for the aid in thinking about one’s problem and decision-making. It has been developed for situations of change and adaptation. Common representations tend to confuse mediation with spirituality, legal or psychological assistance. In these cases, mediation is not considered as a specific discipline, both scientific and pedagogic. The development of a “professional mediation”, based on rigorous researches and results, and managed by experts in human relationships, has emerged at the end of the twentieth century.

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[edit] General Points

Mediation has several applications (cf. Etymology of the word mediation). In these pages, we will regard mediation in conflict contexts. Mediation is a discipline aiming at facilitating the free flow expression of information, and could be linked to reflection and learning process. This scientific approach and structured process provide the way for the parties in conflict to 1) relieve the affective - emotional part of the dispute, 2) surpass the confrontation of interests and positions, and finally 3) to reach a mutual agreement. Different conceptions of mediation exist and can be explained by the various influences on conflict representations. Mediation, as defined by professional mediators, unlike the classic methods for conflict resolutions, is a structured and inverted process.

[edit] Comparative Definitions of Mediation

For the professionals, mediation can be defined as a “reversed process” in comparison to judicial proceedings. The identification of the conflict elements in the judicial system proceeds first by observing the legal elements of the dispute; secondly its technical aspects; and finally, if necessary, the compensation of the emotional part. Mediation proceeds in a reverse way. The mediator starts by facilitating the expression of the emotional aspects of the conflict, then supports the seeking out of a technical solution and a mutual agreement between the parties, and finally helps them to valid the legal agreement which they wish to adopt. This legal agreement might or might not be followed.

Many definitions of mediation exist according to the different organizations of mediators. For example in France, a fundamental divides the “Professional Chamber of Mediation and Negotiation” (PCMN) with the other associations, especially those gathered under the title “Cooperatives for Mediation” and the “Union of Organizations for Mediation. (UOM)”. They define the conflict in a different manner.

  • According to the members of the UOM, a conflict doesn’t influence the decision-making process of an individual. In this way the individual is able to stay free in his/her choices. The mediation process is suggested to the parties before a legal proceeding takes place; and whatever the context, the mediation process depends on the free commitment of the people involved.
  • According to the PCMN, a person loses his freedom of decision-making in a conflict. This conception of things produces two ways of entering into mediation. People in conflict are trapped in a process of overbid, a restricting dynamic that might be referred by the Courts. An imposed mediation might help them to handle their dispute (that is to say to take charge of) and possibly to reach a free resolution. Therefore mediation should be a precondition to the judicial proceedings. The main point is in the result: the important is not how people enter into mediation but how they get out of it.

[edit] Geometry and Mediation

The simplest shape that can represent mediation, with two parties in conflict and the mediator, is a triangle. It would be inadequate to define mediation only according to the highlighted connections. It’s partially correct, but only partially. Even if mediation can be assimilated with the shape of a triangle, the illustration of the distance which is involved in mediation is missing in this symbol. This distance, or detachment, is both the posture of the mediator and the effect on the parties.

Moreover, mediation of a conflict highlights the initial relations between the parties. Although it’s hard to imagine, it would be more precise to say that mediation is based on a triangular relation but its result is a ‘triangular pyramid’ prospect.

The difficulty to imagine this geometrical shape, a triangular pyramid, and its connection with the mediation points out the difficulty to imagine the discussion that can be created among the parties; that professional mediators have chosen to name the “unimaginable discussion”.

[edit] Influences Intervening in Mediation

Mediation has not always existed like we currently understand it (impartial, neutral, independent and confidential). See the page: History of mediation.

Since the development of the mediation in the nineteen eighties, several conceptions and applications exist. The object of this intervention is the resolution of conflicts without power struggles.

The various conceptions, linked to different ways of conceiving interpersonal relations, even about Human origin or about its difficulties and abilities to resolve conflicts, explain the various interpretations of mediation:

  • Legal - with repair of a prejudice and the recognition of a responsibility, sometimes considered a guilty one,

Religious - with the forgiveness of a fault or sin,

  • Psychological - a therapy is needed in order to cure or heal,
  • Methodological - with the learning of new behaviours in front of the new situation.

[edit] Differences of Conception about how Enter into and Get out the Mediation

There are two conceptions of mediation:

  • According to the juridical-judicial system, a mediation process should start with the free consent of the parties. In this context, it is considered that parties living a power struggle are able to authentically choose. This power struggle is refereed to a third party who pronounces an imposed award. In that system, the parties in conflict should submit themselves to the pronounced judgment.
  • According to the professional mediators, the specificity of the mediation is not its “entry,” but in its “exit,” and should be concluded on a free and mutual agreement. Indeed, professional mediators demonstrate that a conflict is always restricting and it is illusory to think that the parties can come to mediation on their own free will since the parties feel constrained by the conflict, throw at each other reproaches and feel constrained by the solution imposed by the opposition.

[edit] Conciliation, Mediation and Confusion

Sometimes confused with conciliation, mediation is in fact one of the modes of alternative conflict resolution. Mediation supports the reflections of the parties and brings them to resolve their dispute on their own, without constraint and submission. It is based on communication in order to enable the creation or re-creation of links between the parties in conflict. Mediation involves the intervention of a neutral, impartial and independent third-party, the mediator, who is a mere intermediary in the relations. That’s the reason why we can say that mediation is an inter-negotiation. It aims at the relational quality and the communication.

[edit] Difference between Law and Mediation

Mediation as imagined by jurists is in fact conciliation. Mediation is then considered as a ‘soft justice’, in the sense that it offers a private alternative to the judicial system, which is a public institution. As if a mistrust regarding the opposition might be left, the judicial system has to remain a tool of vigilance in order to strengthen the fragile agreement.

For the professional mediators, mediation aims a free decision-making. It aims at helping people to go beyond their behavior of adversity and adopt a constructive posture of relating, whether it is to reestablish the relationship, to readjust it or to mutually agree to end it. Therefore, it aims at reviewing relations that can be rearranged by consensual way.

A definition of judicial conflicts is proposed by Jean-Louis Lascoux. He quotes three elements that constitute a conflict:

  • The legal part.
  • The technical part.
  • The emotional part.

The juridical-judicial system examines a conflict by observing first the legal part, then the technical aspects and finally considers eventually the compensation of the emotional part. The difference between the legal system and mediation immediately relies upon the manner of observing the conflict.

Mediation is a structured process that observes and manages a conflict in the reverse way in comparison with the legal proceedings. Conflict resolutions would be better managed with the intervention of a mediator because the parties themselves would alleviate the affectivity that pollutes the situation. This process would facilitate the examination of the respective positions and then interests. It would be a mode of reasoning that, if necessary, makes the parties face their contradictions.

[edit] Mediation of Private Conflicts

Mediation is a process which is led by a mediator, through which the parties reach a free agreement. In the civil or penal judicial system, mediation is bound within the legal framework. In the institutional cases, the legal framework is more nuanced. In the field of civil conflict resolutions (contractual relations, written or not), mediation is free in its practise. Civil mediation and conventional mediation have the same meaning. Since the end of the twentieth century, professionalizations lead to clarify the conditions to practice with the term (and not the title) mediator.

In the field of conflict resolution, mediation is considered as a multi-field approach (in university courses for example) or as a separate and specific discipline. It is an approach strengthening contractual freedom of the parties and it helps to sustain the ability to make decisions.

Therefore, compared with the legal proceeding which is for individuals a way to abandon their capacity of deciding, expressing and seeking a solution; mediation appears as a more natural process although it is paradoxically considered as an alternative to conflict resolution.

Mediation as a discipline provides a process which is made up of appropriate steps adapted to the context. This process is also constituted of rules of operation and communication, with the mediator as a guarantor. Its objective is to achieve, without obligation for the mediator, the best result as possible for the parties and according to them - not to the third-party mediator. It is a method to accompany individuals to reach an agreement.

The interview led by the mediator can enable the parties to clarify their positions and to adopt an approach, a strategy, a behavioural change that will help them solve the described dispute.

Globally, mediation process is a framework whereby desires, aspirations, expectations, plans, needs and interests of people-in-conflict can be expressed. It is an aid process for personal and collective decision-making, aiming at the best decision for the parties. A personal accompaniment can also take the character of mediation. Indeed it enables a party to moderate its behaviour, face and lead a discussion or negotiation with the other party which would have refused a classical mediation.

[edit] Conventional Mediation and Judicial Mediation in France

Conventional mediation emerged in France in the early nineteen eighties. In this context, a mediation process is freely and spontaneously chosen by the parties themselves who prefer to be accompanied by a neutral third-party.

Judicial mediation in France was established by decree on July 22, 1996. This kind of mediation takes place within a legal proceeding; is accepted by the parties during the procedure, and ordered by the judge who designates and appoints the mediator. In that case when the mediation has been chosen during a legal procedure, the judge will make a ‘mediation ordinance’. The initial duration of the mediation must not exceed three months. This mediation can be renewed once, for the same amount of time, at the request of the mediator, the judge or the parties.

[edit] Differences with the Related Practices

[edit] Mediation and Negotiation

The main difference between mediation and negotiation is simple: the negotiator is not impartial. He represents a party’s interests, implying that the negotiator will seek to reach a solution that will provide satisfaction to the party he represents. The mediator on the contrary is impartial. He accompanies the reflection of the various parties by enabling them to reach an agreement. This agreement can be defined by several manners: either based on negotiation “win-win” approach; or looking for the most satisfactory as possible for the party that the negotiator represents; or looking for the least unsatisfactory solution for the parties involved.

Negotiation deals with stakes and interests of the parties whereas mediation begins with given positions and keeps these in mind as a backdrop of the process.

[edit] Mediation and Conciliation

The differences between mediation and conciliation lie in the role of the third-party... First of all, the third-party mediator supports the parties in their reflection and decision-making; then the mediator brings out the decisions of the parties whereas the conciliator proposes solutions to the parties involved.

[edit] Mediation and Arbitration

The difference between mediation and arbitration lies in the fact that the arbitrator makes a decision that binds the parties who have chosen arbitration. A practice still marginal has been developed in the United States, within the framework of ADR (Alternative Dispute Resolution). It combines the intervention of a mediator who when there is a failure to find out a consented solution, can become a referee by prior agreement with the parties. This method is called Med-Arb.

[edit] Development of the Mediation in the World

Current developments are mainly drawn from organizations like the United Nations (UN) and the European Parliament. Switzerland (thanks to its history of neutrality) and Canada (thanks to an excellent management) both have their role in the evolution of mediation in the whole society, including the company sectors. That is becoming a culture.

It is remarkable to notice that evolution of the mediation aims with a determined will of minimizing "the ancient Roman and warlike concept", "accusatory approach", that we find embedded in our laws.

How can we accept that two parties are still in opposition... and above of all, remain unsatisfied with their pain? Worst, we have established rules for procedures and managements that mock-up, maintain and amplify conflicts; it’s getting the last straw!

The purpose should be to settle, to repair, injuries and misunderstandings... the recovery of well-being of the various parties... recognition and rehabilitation... explaining the formulation of a ‘reparative justice’.

[edit] Concepts of Individual and Practices of Mediation

With regards to resolution of interpersonal conflicts, mediation is necessarily influenced by the various conceptions of individual. These influences can give an impression that, contrary to the thesis above, mediation would have a History. In fact, it is clear that mediation, as a discipline aiming at surpassing the conflict, could emerge only with the recognition of the individual as such.

However, the conception that a mediator has about individuals can influence his action, according to the values carried “in the heart” of the mediator’s own beliefs or motivations. That concept influences, more or less voluntarily, the mediation process and consequently on the solution which is reached during the mediation.

[edit] Profession of Mediator

The practise of a mediator's activity is not regulated. There is no exclusive field of practice. Nevertheless, like in France with the “National Certificate of Family Mediation”, mediation tends to be sectored.

A mediator, who is a generalist, normally possesses an individual and professional insurance. This is a requirement for some organizations, like the Professional Chamber of Mediation and Negotiation in France; but not for all, especially for mediation organizations that have a group insurance. A professional mediator is trained to the transversal skills of mediation and is able to practise in all kinds of conflicts usually treated in the civil law system.

He is requested by the parties - or by one of them who requests him to contact the other party (or parties) and be the go-between. In this case, mediation is called “conventional”. He can also be requested within the framework of a judicial conflict; in that case it is called a Judicial Mediation.

[edit] Family Mediation

Sectorization of mediation continues to make debate among professionals and especially among related professions (mainly legal professions, social workers, marital counselling, family movements...). However, in France, even if a national certificate has been obtained by the influence of family mediation associations, it does not provide an exclusive right for the practice of mediation in this area.

[edit] Ethics and Deontology in Mediation

The common points about the commitments of mediators lie in the fact that mediation should be practised as an independent profession. The mediator has an obligation of means, not of results, and must be impartial and neutral. The mediator also has to respect confidentiality of the exchanges and requests the parties to also respect it.

The differences of conception among the mediation organizations are about the references of the practice, the transversality of the skills and about ethics. In France, most of the various mediators have developed charters, usually that refer to the laws while family mediators refer both to the law and psychology.

[edit] The Mediation Clause

The mediation clause can be introduced into all contracts. It suggests that the signatory parties plan to proceed to a mediation process before considering any recourse to a judicial proceeding. This contractual obligation must be respectful of the stipulations regarding the abusive clauses.

The mediator is considered, not as a physical person, but through a legal entity (company, association, chamber of commerce, trade union…). This legal entity can be chosen by the parties and noticed in the contract. This clause can also be added into a mediation agreement; foreseeing the situation where parties would have difficulties to respect their agreement (which becomes a new contract), especially in circumstances of situations in change.

[edit] The Mediation Agreement

During conflict situations, mediation requires the free consent and the capacity to decide. It aims at reaching a durable agreement based on the commitment and relational quality.

The quality and durability of the agreement is usually the balance of satisfaction about the solution. The agreement is based on the sincere effort for the recognition of the individuals and, at the same time, respective interests. This recognition includes the anticipation of the risks of ruptures of the agreement; the difficulties encountered for its application, with sometimes the forecast of a possible return into mediation (mediation clause) or, during a judicial agreement, an inclusion of measures against the one who would break that pact.

The parties are allowed to decide if the agreement will be written in legal form or ratified by a judge. The accord can remain under private agreement. Nevertheless, written and signed by the parties, it will have the character of a contract. Depending of the cases, it can be a compromise, a draft agreement, a transaction...

[edit] References

Code of Ethics and Deontology of Mediation

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