Mediator

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A mediator intervenes to facilitate a communication, a relation, a transmission of a complaint, or a transfer of a specific knowledge. In order to operate in these various areas, between individuals, legal entities or things, a mediator needs to possess communication skills like diplomacy or pedagogy. Moreover, for direct relations, rhetoric is especially required. These skills form a set of transversal competences that are found, with varying nuances, in all kinds of mediation.

In terms of conflict, a mediator is a professional who intervenes in a relation and has no power to influence or decide. It remains that relation of authority is sometimes discussed. However, the mediator must not have any authority on the subject's bottom; but that must be regarding the conduct of the mediation process and the form of the debates. Not magistral, the mediator should learn from the pedagogic skills of accompaniment.

The mediator is a professional who stands between two negotiators. Therefore, the mediator has a role of inter-negotiator and knows how to handle conflicts.

Contents

[edit] Levels of Responsibilities between the Mediator, Lawyer, Judge and Expert

  • The lawyer takes responsibility of a case for the judicial defense of a standpoint;
  • The expert gives an opinion regarding the technical aspects of a dispute;
  • The judge and the arbitrator make a decision aiming the legal and technical resolution of the dispute;
  • The mediator manages the resolution of the conflictual atmosphere and enables the parties to define together a mutual agreement.

[edit] What Mediators Do

  • They accompany the reflection of the parties;
  • They consider all the aspects of a conflict;
  • They lead the recognition of the following:
- The legitimacy of various viewpoints, explaining the gap that may exist between reality and the manner to interpret it;
- The awkwardness, explaining the possible gap between intentions and actions;
- The intentionality, explaining the difference between the 'self' and 'other' centrism.

[edit] Conventional Mediator

The conventional mediator intervenes at the request of the parties involved or at the initiative of one of them, in order to support the conflict resolution, the accompaniment of a change, the definition of a strategy or the development of a project involving potential relational difficulties, such as mergers, takeovers of companies...

There are various designations of this activity:

  • Civil mediator,
  • Private mediator,
  • Independent mediator.

In France, the term 'professional mediator' means the membership to the Professional Chamber of Mediation and Negotiation, which issues a 'certificate of professional mediator' and has written the 'Code of Ethics and Deontology of Mediation'.

[edit] The Main Duties of a Mediator

  • Impartiality: he must be attentive to the phenomena of sympathy that is naturally created between people;
  • Independence: he must not be the representative of any authority;
  • Neutrality: he does not influence the parties on the choice of the solution (temporary, intermediate or final...), does not judge it and does not refer to morality or law which are related to appreciations of judicial or juridical professions;
  • and Confidentiality: everything that has been expressed during the mediation must remain private, and the mediator is not allowed to testify any elements presented during interviews and meetings he has led.

The observations of the mediator and collected declarations must not be neither issued nor quoted in following legal proceedings or to any other authority, without agreement of the parties - Art.131-14 of the NCPC (France).

In the civil context - which concerns all contractual relations, written or not - the mediator supports the parties in conflict to reach the best possible solution for themselves - not for the mediator.

[edit] Judicial Mediator in France

In France, in order to be appointed as a judicial mediator in the civil area (as distinguished from the penal area), and be allowed to request an inclusion on the lists approved by magistrates, are required (Art.131-5 NCPC - France):

1. to not have been the subject of a judicial sentence, a disability or forfeiture as mentioned on the criminal record;

2. to not have been responsible for acts contrary to the honor, integrity and morality leading to a disciplinary sanction;

3. to possess, thanks to a past or present practice, the required qualification regarding the nature of the dispute;

4. to justify a formation or a suited experience;

5. to present the necessary guarantees of independence for the practice of mediation.

In practice, the judge is the one who assesses the third to the fifth criteria.

Mediation can be entrusted to an individual or association. (Art. 131-4 NCPC - FR).

Examples of disputes:

  • Between neighbours (nuisances, disturbance of the peace at night...);
  • Between an owner and a renter (rents, charge bills, deposit refund...);
  • Between a merchant and a consumer (sales, provision of services...);
  • Between an employer and an employee;
  • Between two professionals in a customer-supplier relation or in competition;
  • Between members of a couple deciding about the consequences of a divorce or separation, or about the management of the parental authority, like the child custody (family mediation).

[edit] Mediator in Professional Relations

Laws also include possible recourses to a mediator, as a prior incentive to any judicial proceedings:

  • Moral harassment
  • Collective labour conflict - in the French Civil Code, it appears many contradictions with the concept of intervention of a mediator. According to this Code, a mediator can make proposals and produce a report that may be released by the Minister of Labour.

[edit] The Mediator and Judicial Professions

A mediator often intervenes before, during or after a judicial proceeding. The mediation agreement can take a transaction form, without necessarily being registered by a lawyer or approved by a judge. Any mediation agreement has the character of a private contract and refers to the contractual freedom. However, the mediator, as a facilitator, cannot approve the contract or even guarantee its quality. Instead, according to the public order and moral, this responsibility depends of judicial professions. The limit of the professional practice of mediation ends where the coded law, which allows judicial advice, begins.

Unlike the lawyer, the mediator does not take his client's word in order to make it clear for law experts. He does not use certain information to defend or to impair an argument. The mediator remains neutral and impartial.

  • He can reformulate statements or ideas of a party to make it clearer for the other party;
  • He can use redundancy to let the parties involved consider various ways of perceiving the situation on which they have conflict;
  • He can present risks of decisions to the parties involved for them to be able to appropriate the conflict resolution or the definition of a project; and to be more independent, unlike the judicial system that removes the power of the parties to decide.

According to the perspective of mediation, the law can be considered as an archaism – a legacy of the human difficulty to face responsibilities. On the other hand, according to the perspective of law, mediation can be considered utopian or ideal and too confident about the ability of individuals to engage and maintain a commitment.

Nevertheless, the emergence of professional mediation at the dawn of the 21st century reflects that viewpoint changes regarding the relation between society and individuals. A number of lawyers attempt to master mediation skills. Those skills require them to change their approach of partiality to which they have been trained for the defense of causes, as well as their approach of submission for the judge's reflection and decision. "The partiality of the mediator is the mediation".

[edit] Techniques and Skills of the General Mediator Involved in Changes and Conflicts

Viewpoints of the different schools of mediation inevitably differ regarding the competences of the mediators. It is appropriate to connect the various types of formations to the different conceptions of the individual. According to some, a mediator must have the following skills:

  • Knowledge in law, to be able to provide judicial information or to be positioned as a lawyer;
  • Knowledge in psychology, to be able to apply psychological approaches, observations and conclusions;
  • Knowledge in the field of the dispute, to be able to apply an approach that is more or less neutral regarding the solution, like an expert.


For others, conflict mediation is associated with a religious approach.

For professionals of mediation, which is considered as a specific discipline, the main skills are the following:

  • Listening of positions and viewpoints - different from tolerance that involves prohibitions, taboos and behaviours of acceptance, which imply a threshold within which is implicitly affirmed a judging tolerance;
  • Recognition of the legitimacy of viewpoints, feelings, expectations...
  • Otherness - fundamental recognition of the right of difference;
  • "Othercentrism" - that enables the mediator to get the distance and detachment required not to feel involved by identification, and thereby to be "self-centered";
  • Detachment - "do not take for ourselves what is not";
  • Mastery of the art of a pacificatory rhetoric by which the “unacceptable” can be expressed in an acceptable manner;
  • Knowledge of polemic - to be aware of conflicting formulations;
  • Maieutic - to support expression and facilitate reflection of the parties;
  • Pedagogy - to transfer knowledges and behaviours;
  • Creativity - to facilitate without defending or imposing a solution;
  • Lucidity - not consider heard statements as facts; they are words and only words.

A mediator does not try to analyze individuals in order to categorize them or classify their attitudes or behaviours; but rather searches to master his communication skills in order to transmit information to one or all parties, aiming at leading this 'unimaginable discussion' - that the parties usually thought impossible to experience.

[edit] Choosing a Mediator

[edit] General Points

In the case of a dispute concerning public administration or a governmental structure, it is appropriate to solicit the Ombudsman of the Republic. In the case of a dispute between individuals and/or entities, a private mediator is competent.

For neighbourhood problems, volunteers perform the role of the mediator with good will. Some municipalities have also set up mediation services whose purpose is to appease dissatisfactions of citizens, which are not as much solved since these “mediators” only represent the sense of "reasoning" and moral.

[edit] The Choice of a Professional

A private mediator is increasingly regarded as a service provider. He is remunerated according to the choice of the parties. He can intervene at the request of people in conflict, out of any judicial proceeding; in that case it is a conventional mediation (mediation covers all or part of a contract - a contract is made of conventions).

A mediator can also intervene during a judicial proceeding or after a judgement, when the legal decision is not accepted by one of the parties and when it is more preferable to initiate a mediation process in order to rediscuss all or part of the judgement - that can retrace the origin of the dispute and thereby solve it.

Therefore, there are at least three possibilities. The mediator may:

  • be chosen by the parties,
  • be appointed by an authority - judge or government,
  • or act spontaneously in presence of a conflict, to help its resolution.

In certain situations of judicial mediations, the mediator is appointed (by ordinance). He can also be imposed, as in the case of social conflicts where the government imposes a mediator de facto - but remains attentive that they can find a consensus of acceptance. The parties are however free to accept the mediation or to refuse the mediator.

Anyway, mediation - to have a chance to succeed - must be recognized and the mediator be accepted by the parties.

[edit] Contractual Recourse to a Mediator

Companies cannot impose their internal mediator (customer service) as the prior recourse to any judicial proceeding. In the case of a clause requiring a consumer to have recourse to an internal mediator, it is considered as an "abusive clause" - and therefore deemed as unwritten and worthless.

However, mediation can be foreseen contractually (conventional mediation), by a mediation clause inserted into contracts, as well as arbitration or conciliation. Therefore, the recourse to an independent and professional mediator can be noticed. In this case, mediation becomes an obligatory step for the parties in case of conflict, since it has been foreseen and included in the contract.

Criminal Case In penal mediation, the mediator is necessary appointed by the prosecutor, usually through associations of aid for victims.

[edit] Other Situations of Mediation

In formation, during sessions of group accompaniment for a project in change, the animator can be named mediator. The term facilitator is also used.

[edit] Definition of "Mediator" according to Serge Braudo

There are various manners to present the action of a mediator. According to the circumstances, a mediator can receive both parties, receive only one and visit the other one, or commute between the two parties and receive them separately...

Serge Braudo, whose website presents legal texts is a reference thanks to its wealth, especially about the Alternative Dispute Resolution -in French the MARC (Mode of Alternative Resolution of Conflict), the MARL ("L" signifying Litigation) or the MARD ("D" for Dispute)-, uses the term "negotiator". Nevertheless, it must be noticed that the mediator in question is an intermediary without bias for either party. He remains a "catalyst", a facilitator.

Here is an excerpt from his website that I suggest to discover:

"Remarks on civil Mediation. April 14-15, 1995. "Because it ends with a decision, arbitration is subject to the directive principles of a trial. Accordingly, like the judge, the arbitrator must observe the principle of contradiction, principle of respect of the object and cause of the dispute.

However, mediation does not lead to an act of court litigation. The role of the negotiator is limited to the conduct of the negotiations that lead to a conciliation which one is the work of the parties. Mediation is characterized by a series of proposals and against-proposals that lead to an agreement. The solution that puts an end to the dispute is imposed on parties only by their own determination and not by a binding judgment or an award pronounced by one third.

During the series of contacts that the mediator interviews, he acts as a catalyst. He takes all proper initiatives to obtain a convergence of the present viewpoints and without even being held to keep the parties informed of his diligence. The mediator usually begins his operations by consulting each party separately but nothing excludes that he succeeds to reach an agreement in one single meeting gathering all parties.

The back and forth movement that usually characterizes his action enables him to alternately keep each opponent informed of the claims that the other party has allowed the mediator to reveal. He can attempt to obtain partial agreements. To reach convergence of offers and acceptances, he may receive, under the seal of secrecy, the final concessions that each party is determined to do only if the proposals that have been already made are not accepted. And nothing even precludes that the parties never meet and that the signatures of the final act that finalize their definitive agreements are alternately affixed in different places".

By Serge BRAUDO, Honorary Adviser to the Court of Appeal of Versailles (France)

We can notice that the mediator has a process which includes a confidentiality strategy regarding the in and out of the possible proposals of the parties. The mediator is more a facilitator of negotiation than a third party who examines positions from all angles. He is focused on interests. In fact, the purpose of this form of mediation is to reach an agreement having a character that lawyers name "definitive", integrating "mutual concessions", for a registration with a notary or homologation by the judge.

The act of the mediator has an aspect that I would define as being more "diplomatic" than "pedagogic", even if this means that he therefore must, regarding the necessary skills, master the art of pedagogy and rhetoric... pacificatory. Why not?

It all depends, of course, on which "causes" he brings his cooperation… but as long as he respects the rules of ethics and deontology of the profession, why not?

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