Mediation. Alain LempereurЧитать онлайн книгу.
If there had not been mediation, each conflict would have been managed in an isolated manner: the conflicts regarding divorce and succession would have persisted as much in negotiation as in court. As often happens in cases of bankruptcy, the farm would have been liquidated at a low price, and the creditors would have ultimately been repaid less than what they received in the long‐term agreement allowing for the continuation of agricultural activity.
Mutual Misunderstanding
The parties involved in a conflict often do not understand one another: they live their past as a coherent whole, and the other, whether it is a person, a department within an organization, an ethnic group, or a nation, is placed on the “negative” side. The other is of bad faith and is the representative of the “axis of evil.” French philosopher Jean‐Paul Sartre (1944) summarized it: “Hell is the others.” How did we arrive at this Manichean Yalta between the other and me?
As Chapter 6 will elaborate, the mediator helps to uncover it, as much for themselves as for each of the parties, by verifying through their questions if each party listened to and understood the other. The goal here is that a step‐by‐step, mutual comprehension of what has been perceived differently in the disagreement should come to light. The mediator will explain an essential distinction between understanding and agreeing: one party can understand how the other functioned – recognizing how the other feels – and still not agree with them. A party who understands can, at the same time, continue to express a different narrative of reality, of the distribution of responsibilities, and of the consequences to draw from it in order to find an acceptable solution to the conflict.
The reciprocal ignorance and incomprehension increase when individuals, groups, or organizations in conflict belong to radically different cultures: national cultures, but also professional cultures – such as an engineer in conflict with a legal expert. An extra factor favoring mediation requires the availability of a “multicultural” person, knowing the different, present “worlds” well, who is likely to play the role of cultural interpreter so that each party better understands the other. This essential role of cultural intermediation, for example, is taken on by criminal mediation associations in Paris.
Interpreting the culture of the Other, my fellow human being
At the Paris‐based Mediation Training Center (CMFM), an effort is made to assign at least one mediator (if there is a co‐mediation) of the same cultural origin as the party in conflict.
In the framework of the Association of Criminal Aid (AAPE), a mediation case involved a French mother and an Algerian father. The mother had no contact with her children – who were living in Algeria – for more than a year. The association took care to integrate a mediator of Algerian origin in the mediation team. During the entire mediation, the Algerian party looked only at the Algerian mediator and addressed only him. At the end of the meeting, a first agreement was made, and the French mother was immediately able to talk to her children by phone, before meeting them later.
At the juvenile courts in Paris and Nanterre, African students residing in France, with members of Étienne Leroy's Cultural Anthropology Laboratory of University Paris I, endorse the role of cultural intermediation between the judge and children of African origin.
The Absence of Precise Rules or Established Laws
All situations where a simple, clear, and unanimously accepted rule is lacking are a potential breeding ground for conflicts. Each party invokes “their” rule, or “the right” interpretation of the obscure rule.
Adolescence: Who decides?
Concerning teenagers, no absolute rule exists concerning the hours of going out and returning home, the possibilities of long trips alone or in a group, or whom they choose as friends. Often, parents, assuming their parental responsibility, establish rules that are contested by their teenage children. The latter, already feeling like adults, affirm their new identity by confronting their parents. Each side, feeling legitimate, camps on their reciprocal positions.
When direct exchanges become difficult and include a constant interrupting of one another, the need is felt to organize the exchanges and establish new rules of the game: it is a call for mediation.
This call also concerns areas where the rapid advancement of technology does not allow people to always take their time to respond judiciously; the same applies to copyright in the dissemination of works on the Internet. To a greater extent, the settling of conflicts resulting from Internet transactions creates a need for mediation by the Forum of Internet Rights to organize online or face‐to‐face mediation between Internet users and Web service providers. The mediator, who helps in the interpretation and legitimacy of an implicit or explicit rule, assists the parties to agree upon the rules they all find acceptable.
Absence of a Suitable Space
Individuals like groups or organizations in conflict find themselves separated by the front lines. A no‐man's‐land comes between territories that became impenetrable, each person being banned from a stay in the other's space. For example, two departments in a quarrel within the same company are situated at two different sites; no one goes to the offices of the other “camp” anymore. A few meters suffice to raise a wall of separation. Colleagues in conflict, although separated by only one floor, may lack a neutral space to speak with one another safely.
In all these cases, faced with protagonists refusing “to go” to the space of the other party, the mediator offers a suitable neutral space for the meeting. This place materializes if the parties accept to physically meet: the mediator suggests an office, a cafeteria, a table surrounded by comfortable chairs, a discreet hotel in a neighboring nation, Geneva, etc. or any other favorable location (cf., on this logistic aspect, Chapter 4 on mediation preparation). Mediation often assumes the careful choice and preparation of a meeting space that parties lack.
In some cases, this suitable space may be symbolic. The parties refuse to meet or are not financially able to do it; in this case, the mediator acts as the shuttle between them, carrying messages from one side to the other so that the exchange continues.
Adam Curle in Biafra: A mediator‐shuttle
Mediator, indispensable author, and first tenured chair of Peace Studies at the University of Bradford, Adam Curle (1916–2006) was the shuttle throughout the war of Biafra (1967–1970) between Biafrans and the Nigerian government to prepare solutions to end the crisis.
Distrust of the Other and Confidence in the Third Party
In a situation of conflict, past experience leads a person or a group to be suspicious of the other. Based on a negative experience, one fears the worst:
With the same interlocutor: A party was “fooled” once, and no longer wants to take a chance. Once bitten, twice shy.
Or with other interlocutors in a similar situation: A party suffered from harmful events elsewhere and does not wish to risk a recurrence.
Past painful experiences drive caution and reluctance, which manifest themselves even when the causes have vanished. With attentive and benevolent ears, the mediator probes and explores what has happened, uncovering the sources of distrust in order to move forward. This suspicion may appear during joint or private meetings. An understanding of real or perceived risks helps to elaborate guarantees or other acts likely to restore confidence.
Distrust of the other pushes someone toward a third party, who might not be discarded the same way. When the mediation idea emerges in a suspicious party's mind, another question is quickly