Mediation. Alain LempereurЧитать онлайн книгу.
Staff of the National Burundian Defence Forces (Wolpe et al. 2004; Colson and Lempereur 2011; Lempereur 2020)At the start of the 2000s, in the aftermath of a civil war having claimed the lives of 1 out of 20 Burundians, the delicate national reconciliation implied, in particular, the integration of the defense and security forces. For months, the representatives of the regular army and the armed movements remained stuck on many questions, such as rank harmonization and position allocation. During a series of formative retreats gathering the head members of all the former belligerents, third parties (including two of the co‐authors) were involved. They acted in a diplomatic fashion, using methods of conflict resolution, as ambassadors do. They also brought military experts, who played the role of advisory aides. Subsequently, the parties succeeded in unfreezing the situation and in settling all the details by themselves, without third‐party support. During this period, the third parties remained available as attendants in the background to offer all the help that the parties would have judged useful; they were ready to intervene “if necessary,” but the parties did not need them. Their simple availability proved sufficient.
4 Auxiliary or facilitator – When direct negotiations are deadlocked, parties might need a third‐party facilitator who will act as an intermediary. By asking questions and sequencing the steps of problem‐solving, this type of third party paves the way to breaking the existing logjam, thus enabling parties to conceive and produce their own solutions.
5 Adviser – Faced with the same difficulties of relationship deterioration and deadlock, parties may need to resort to a person who, in addition to providing methods and process tips, will offer their evaluation, i.e. substantive guidance on questions at stake. Because of the Adviser's expertise and experience, the parties will seriously consider their recommendations, which again they are free to adopt or refuse.
6 Arbitrator – When the parties have not been able to come up with a binding solution – despite the involvement of one of the preceding outsiders – and there is an urgency, weariness, and/or desire for a decision – it may be necessary to designate a third party in whom the parties place their confidence, and whose decision they agree a priori to accept. This form of “private justice” exists in sports as in many civil disputes.
7 Adjudicator – If a “private third party” cannot decide their case, parties can turn to a “public institution” that wields a conclusive function, such as the judiciary for legal disputes. This adjudicator – typically, a judge – will have to conduct due process, and therefore keep the parties involved to a certain extent before deciding, and for this reason differs from the last type of third‐party intervention: Authority.
8 Authority – As a solution to the conflict, parties (either or both) may decide to ask an authority figure to make the decision. By doing so, however, the parties usually completely lose control over decision‐making. The authority's solution can become necessary in an urgent situation that requires a quick decision with or without consultation.Conflicting medical diagnosesIn a hospital, sometimes doctors make different diagnoses. They cannot negotiate indefinitely, because the patient's health would suffer. They therefore agree to rely on the head of the department, whose special expertise is authoritative. The hierarchical authority is asked for a decision on how to move forward with the patient's medical treatment.
Complementary Approaches to Wisdom
Mediation involves a third‐party intervention between the facilitative and the evaluative modes. It can be hybrid and borrow from the other modes, especially up the ladder toward more autonomy, as the above‐mentioned Burundian example showed. In other cases, mediation, when it fails, may open the way toward more authoritative modes of intervention. Mediation and these eight approaches (8 A's) are complementary forms of wisdom, and depending on conflicts and contexts, each can prove pertinent in order to manage disagreements and reach a decision.
Facing Borderline Pathological Cases
Pathologies of conflict exist. Certain groups or people only exist in systematic opposition to another group or person, affirming their identity in confrontation. The conflict becomes their reason to live. As René Girard describes (1972, 1982), in certain contexts, the identification of a scapegoat prevails, with a permanent denunciation and a destructive, adversarial logic. Often, other psychological pathologies – schizophrenia, deep depression, dementia, etc. – prevent people from coping.
Mediation implies a minimum amount of possible dialogue and comprehension, creating a threshold past which mediation becomes impossible. Here, the authority's solution – a judge, a doctor, or a psychiatrist – might be necessary.
The Desire to Impose, Avenge, or Punish
Often, when suffering has been extreme in a conflict, the victim wants to make a case, to impose a sanction, to avenge, or to punish. Research has shown that in these situations, though mediation may not have been initially wished for by the parties, after having gone through it, the mediation process was actually able to satisfy them beyond what they envisioned.
Impose – When one party considers themselves to be right, they may want to get a sanction imposed, without paying attention to the desires and justifications of the other party. As mediation necessitates a minimum amount of listening and comprehension, it does not respond well to a pure demand of imposition. However, experience underscores that parties in this state of mind, when they are involved in mediation (for example, at a judge's request or in application of a contractual clause of compulsory mediation), can evolve if they find in the other party a recognition of the legitimacy of their claim for compensation.
Avenge – The culture of “an eye for an eye, a tooth for a tooth” refers to a logic of retaliation, which mediation stays away from. However, seeking vengeance implicitly expresses a demand for justice that mediation can help to recognize and reformulate. Mediation can be appropriate as a place where a lucid diagnostic of a situation emerges, including the suffering inflicted and felt, and consequently where the terms of a proportionate and legitimate compensation for the damage committed are discussed.
Punish – This demand differs from the logic of retaliation, as it does not aim to make the other suffer what we suffered, but to sanction through legal proceedings. This punishment is deemed to compensate for the misdeed – retributive justice – and to prevent its future recurrence – deterrence justice. It requires the intervention of an authority – hierarchical, judicial – whose role is to deliver a penalty – judicial sentence. Even when a willingness to punish exists, criminal mediation is used, notably for minor offenses (Lempereur 1999c). It provides an avenue of action for cases that would be otherwise dismissed. For example, it increases the chances that the “small” delinquents will understand their impact on the victims and acknowledge their wrongdoing through an apology. It also empowers the complainant, who can shape the compensatory measures.
When Timing Counts
Speed is a primary criterion in some types of decision‐making, in everything from the most mundane situations – settling a disagreement between teams at a sporting event – to the most serious – assigning responsibilities in the management of an industrial accident, or in hostage situations. Faced with a problematic situation where time is of the essence, and as mediation is not the fastest approach, it is often not the most pertinent.
Is a player offside?
In a soccer match, could the two teams discuss, negotiate, or mediate for hours to arrive at a shared decision on whether or not a player is offside? Night would fall on the field without the match continuing. With the support today of video replay, accepting the referee's decision is preferable to guarantee speedy decisions and to resume the match, even if it does not satisfy a particular player or team and feeds the newspaper columns the next day.
Thus, each time the situation demands a form of swiftness in decision‐making – to avoid prolonged blockage, deterioration, even a human disaster – intervention by an authority proves itself essential. This aspect is reinforced