Mediation process

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The structured process of mediation presented here is part of the mediator's tools to achieve an objective defined by the parties in conflict and to reach a solution for the dispute. It is the essential basis to enable the professional mediator to accompany the reflection and decision-making of the parties, without leaving without consideration the mediation constants.

This concept of a structured process has been developed by “Mediators Associates” and frames the skills of mediators belonging to the "Professional Chamber of Mediation and Negotiation".

Mediation is a process performed by a certified professional using a specific methodology and respecting a rigorous Code of Ethics and Deontology. Mediation enables several parties, each composed by one or more persons that are living in any nature of conflictual situations or lasting disagreements (whatever the nature) to restore a communication and alleviate relations in order to reach a satisfactory, sustainable, free and mutual agreement through the mediator.

Contents

[edit] Definition of Process

A process is an active course, organized along the time, which takes into account the random nature of a development; it is a series of identifiable steps that do not follow a formal order.

Mediation requires the understanding of the "uncertainty principle" of a process which provides a certain blurred margin, conducive in fact to creativity and inventiveness, and uses the sensitivity, imagination and reason of the parties as elements for the conflict resolution.

[edit] Process or Procedure

It is actually inappropriate to use the term “procedure” about “mediation”. However, the term is often used in the Labour Code of France.

A procedure is constraining, and strictly follows a fixed set of steps and has predetermined time-limits. Mediation is not a “procedure”, but a “process”. A process is flexible and adaptable. For example, it is possible to interrupt meetings that have been planned with the parties, in order to give way to private and individual interviews. Taking into consideration the limitations of the people involved, a time-table that has been planned can be modified – for example, postponing of meetings – without sacrificing the positive progress of the mediation. This characteristic of mediation to be flexible identifies it as a “process”.

There are so many preconceived ideas about mediation. Mediation does not necessarily reach an "agreement" in a contractual or legal sense. It can lead though to an "understanding", an "arrangement", or a "definition or redefinition" of relational rules of communication which can end the dispute.

Mediation does not necessarily conclude with “formalization", a document or a convention. Many conflicts started in misunderstandings that have worsen, to the point that parties deem them as inextricable. Without falling in naivety or charity, a verbal commitment based on the full commitment of the parties can enable the resolution of a dispute.

The "bargaining" step is not a must. The mediation process requires precise rules, a contextualization, and even if several steps are necessary, their sequence does not follow a procedural logic and order. It is like a "ritual", orchestrated by the mediator.

[edit] Process of Change Imposed by External Constraints

This process is close to the one observed by E. Kubler-Ross in the process of acceptance of death. But mediation is not a mourning period that makes face the final disappearance of someone. The other is still alive, and a mediation process involves a relational rupture or a change in behaviours and perceptions. This process concerns changes imposed by external constraints (or considered as such), that may or may not be caused by the environment or others.

Here are the different steps that are involved in the process:

  • 1. Shock - sideration
  • 2. Denial - refusal, negation
  • 3. Anger - accusation, reproaches, rejections, disgust, suspicions, constraints
  • 4. Dejection - submission, escape, depression
  • 5. Resignation - fatalism (often influences by culture)
  • 6. Welcome - integration of the experience, construction, anticipation, projection.

Each step on the process can manifest in varying levels depending on personal variables. An individual may experience a certain step faster or slower compared to the other steps. Exits are possible at each step; but when an individual fails to succeed in “completing” a step, the process can have a movement of that of a yoyo and becomes more complex because these steps may overlap with each other. He or she may also experience certain steps in the process more than once.

The comments enable the mediator to get a representation of the person's expressivity in imposed changes.

[edit] Fundamental Principles

Three mediator's postures

Three sources of conflict and components of adversity

  • Judgments
  • Thinking for others
  • Constraints

Three constants of otherness

  • Recognition of the legitimacy of viewpoints and personal interpretations
  • Recognition of the dynamics of a good intention in / for oneself
  • Recognition of awkwardness

Three conflict constants

  • Legal
  • Technical
  • Emotional

Mediation context

[edit] The Individual Interview of Mediation is a Coaching Interview

It can be noticed that only one individual interview can conclude on an outcome from a dispute that has lasted for years. In this case, there will not be a process as described below, but the effects of the mediator's intervention continue to pre-exist.

The first step might begin with a "casual conversation" between the mediator and one or more of the parties. Afterwards, the mediator can perform an interview as an efficient accompaniment process. The mediator will have to refer to the points below.

Mediation can begin without touching on the subject matter to lay the rules of communication that will be used in the process.

[edit] Professional Guarantees of a Mediator (France)

The mediator:

  • holds a certificate of professional mediator,
  • is a member of the Professional Chamber of Mediation and Negotiation,
  • is engaged to respect the Code of Ethics and Deontology of Mediators,
  • has a professional assurance.

[edit] Internal Charter of Recourse to Mediation

In order to establish a mediation charter within an organization, it is often necessary to spend a day of reflection about the meaning of mediation, its representations, its fields of application and general modalities to have recourse to a mediation process.

In a company charter, several possibilities can be combined:

  • The recourse to an internal mediator by crossing referents of a service to another;
  • The recourse to a professional mediator, outside of the company, engaged to respect the Code of Ethics and Deontology of Mediation.

The temptation of the hierarchy to resort to an internalized exists. It can be appropriate in situations like internal disagreements about strategy, definition of trade policy or disagreements among departments. But it can be viscerally inappropriate for conflicts that can perturb the social climate of the company or that can be pursued on legal proceedings.

Therefore, for organizations, it is preferable to consider the "Framework Contract of Ethics and Mediation” approach that enables a preventive clarification of these aspects.

You will find below a "logic" example of a mediation process.

[edit] First Step of Mediation: Introduction

After a first contact, an exchange will enable the parties involved to define the principle of the mission and the modalities of its implementation. For organizations, the way to initiate a mediation process is globally defined in the Framework Contract of Ethics and Mediation, which may concern all or part of the outsourcing of the conflicts (internal or external) related to the life of the organization.

  • Information about the ethical conduct to which the mediator subscribes;
  • Agreement about the remuneration modalities of the mediator - that can be considered as a first agreement: the mutual consent to initiate a mediation process;
  • Identification of the parties (they can not be represented) and the general context (the described situation);
  • Financial conditions;
  • Material conditions;
  • Choice of the place and equipment;
  • Rules of operation:
  • attendance sheet for each meeting or interview (the subject of the conflict is not mentioned because of confidentiality);
  • A mediation mission letter stating only the demand of intervention signed by the parties involved. The nature of the dispute must not be specified because this document may be read by third parties once archived.

[edit] Second Step: Contextualization

In order to contextualize the situation and the conflict, the mediator leads separated and personal interviews with each party. The objective is to prepare them for a common meeting. The duration can vary from half an hour to one hour and a half. It is possible to organize several interviews of preparation per party. In these separate meetings, several topics are discussed, that aim at setting up the smooth progress of the following meeting that will gather the various parties and at optimizing the opportunities for them to reach a mutual agreement.

The interview is structured but progresses as a discussion. The structure proposed to professional mediators enables them not to forget the fundamentals. The mediator must:

  • Define the mediation concept, suggesting the possibility of an "unimaginable discussion";
  • Elicit communication rules and potential obstacles to a successful mediation;
  • Define relational quality;
  • Position the role of the mediator;
  • Define the commitment of each party involved in mediation;
  • Discuss the possibility to set up a "pedagogic contract", or "prior agreement" of ediation - which remains confidential;
  • Indicate the inevitable possible outcomes of the conflict that will be examined during the mediation process in order to ensure the sustainability of the agreement:
  • 1. Resumption of the relation as it was before the conflict, without changes or new conditions;
  • 2. Rearrangement of the relation, which involves three possibilities:
  • Continue together in the spirit of the previous commitment, but under condition(s);
  • Move away from each other while preserving the spirit of the previous commitment - that implies only the daily distance;
  • Separate and break with the previous commitment while maintaining reasoned relations.

These three possibilities can be combined with three modalities that can be exclusive or combine and take into account different aspects, such as the emotional or material:

  • One does more than the other
  • The other does more than the one
  • Both do as much
  • 3. The rupture
  • Foresee the suspensive character of the possible time-limits for proceedings prescription during a mediation convention.

[edit] Setting-up of a Climate of Trust and Invitation of Each Party to Define:

  • What they expect from mediation;
  • The role of the mediator;
  • The rules of communication based on what the other party should not do, say or think - judgment, suspicion, constraint or imposed solution - in order to reach an agreement.

[edit] Confrontation of Each Party to its Contradictions

  • Make a party respect for its own behaviour the communication rules defined for the other party;
  • Remind each party, if necessary, the rules that they have themselves defined during the individual interviews.

[edit] Some Key Phrases

Techniques of "othercentrism":

  • “Thank you for having defined these communication rules”
  • “I guarantee that these rules will be respected by the other party”
  • “Are you willing to respect these rules for yourself?”
  • “Do you allow me to remind you these rules if necessary?”

[edit] Third Step: Identification of Positions, Issues and Interests

(Meeting with the involved parties)

  • Contextualization
  • Define together the objective that are focused on the emergence of a mediation agreement;
  • Planning of the following meetings (steps 3 and 4);
  • Facilitate exchanges and communication between the parties about the situation, ways to feel and live it, viewpoints, issues, interests, expectations, needs and requests...

The mediator or the parties can also decide to make breaks and return to private and individual interviews in order to clarify some points and therefore prevent complaints that might be claimed because of the "maturing" or evolution of the party’s reflection.

The mediator can request to meet persons identified as concerned by the dispute (not as witnesses since the mediator does not lead an "inquiry").

[edit] Fourth Step: Resolution

  • Contextualization;
  • Summarization by the mediator of the solutions discussed during the mediation;
  • Look for other possibilities: to reach this purpose the mediator can lead a brainstorming meeting that aims at helping the creativity of the parties and whose rules are exactly those defined for the mediation background.

[edit] Fifth Step: Choice of the Solution and Implementation

  • Remind the parties about the possible outcomes of the resolution of the dispute in order to ensure that the parties will make an enlightened choice;
  • Establish the parties’ mutual and contributive adoption of the chosen solution and define its modalities of implementation;
  • Anticipate the risks regarding the difficulties to maintain the taken commitments;
  • Define follow-up modes;
  • Based on the context, the involved parties can request the legal professionals to legalize or certify the agreement.

In the case of a drafted agreement, the mediator should foresee the inclusion of a return clause in mediation.

[edit] Advertising and Public Issue of the Agreement (or disagreement)

Only the parties can submit the terms of their agreement by mutual consent, while the mediator is bound to professional secrecy.

[edit] Rules and Practical Advices for Mediators

  • Permanent control of the process;
  • Structured conduct of the interviews: plan, objective, result;
  • No involvement in the conflict (detachment): no opinion, no position, no answers to questions;
  • No negotiation or proposed solution;
  • No reference or personal mention;
  • Summary and reformulation of previous interviews;
  • Invitation of the parties to reformulate what has been said and agreed during previous interviews;
  • Prohibition of any mention of events that occurred between two interviews;
  • No meeting with the parties before the personal interviews as long as necessary;
  • Decision of the right time to gather the parties;
  • Vigilant listening (detached) of any statement or fact occurring during the mediation process.
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