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Alain Lempereur. Mediation
Praise for Mediation
MEDIATION. NEGOTIATION BY OTHER MOVES
Table of Contents
List of Tables
List of Illustrations
Guide
Pages
ACKNOWLEDGMENTS
INTRODUCTION: Why Do We Need Mediation Methods?
Conflict
Authority
The Other
Methods
An Overview of the Book
Examples
CHAPTER 1 THE PERIMETER: Explore Existing Mediation Practices Before Seeking Methods
The Origins of a Practice and Its Words. Ancient Sources
Wicquefort or the old and difficult “status of mediator”
The Meaning of a Word
Mediators: An Overview of Current Practices
Informal Mediators
Ad Hoc Mediators
Who will be in charge of the price of raw materials?
Mediators: Doomed to Disappear … or to Serve as Scapegoats
A college of mediators in New Caledonia
Institutional Mediators
A Variety of Mediations
Models, Methods, and Practices
Some Variables
Sometimes, the stakeholders are numerous
Conclusion: An Overflow of Methods or a Lack Thereof?
Aboard an airplane, a pointless mediation
Even mediation professionals may lack methods
The Seven Pillars of Mediation
CHAPTER 2 THE PERTINENCE: Weigh the Pros and Cons of Mediation Before Engaging in It
Mediation Among Other Types of Third‐Party Interventions
Eight Approaches of Third‐Party Interventions
Complementary Approaches to Wisdom
Facing Borderline Pathological Cases
The Desire to Impose, Avenge, or Punish
When Timing Counts
Is a player offside?
A Past to Overcome: Seven Justifications in Favor of Mediation
Communication and Relationship Breakdown
Negative Emotions and the Risk of Escalation
The Imbroglio of Accumulated Problems
The supplier, their client, and the implementation of a contract
On a farm: One thing leading to another
Mutual Misunderstanding
Interpreting the culture of the Other, my fellow human being
The Absence of Precise Rules or Established Laws
Adolescence: Who decides?
Absence of a Suitable Space
Adam Curle in Biafra: A mediator‐shuttle
Distrust of the Other and Confidence in the Third Party
The American hostage crisis in Iran
A Future to Reconstruct: Seven Justifications in Favor of Mediation
Preserving Relationships
The Need for a Process of Problem‐Solving
The Need for Confidentiality
Petty crimes: I will repair the damages. To protect my honor, please do not talk about it!
Good Time Management
Cost Control
Search for a Well‐Accepted, and Thus More Sustainable, Solution
A divorce – “$2,000 of alimony, too much!”
Inheritance: To sell or not sell the house?
Control of the Parties Over the Final Decision
CHAPTER 3 THE PRINCIPLES: Set Up Operating Principles Before Acting
The Principle of Independence Versus the Reality of Situations
Mastery of the “in between”
The Principle of Neutrality Versus the Resort to Fairness
Proximity or repulsion
Between neighbors, an interested mediator
The Principle of Impartiality Versus the Need for Proximity
Co‐mediation in the audiovisual profession
I identify with the weak or the strong
The robbery of a purse
The Principle of Confidentiality Versus Potential Exceptions
The Strength of Confidentiality
A case of potential harassment
Conflict between two large companies
Potential Exceptions to the Principle of Confidentiality
The Principle of Respect for the Law Versus Spaces of Creativity
Disagreements with a Direct Link to the Law, to Rights, and Duties. Two examples of legal links
Three examples of agreements with the renouncement of rights
Disagreements Without a Direct Link to the Law
Spaces for the imagination
The Principle of Fairness Versus the Parties' Self‐Determination
Equit(y)‐ies
Agreements in mediation – acceptable or not?
Whose Fairness?
The Principle of Self‐Determination Versus the Mediator's Push
CHAPTER 4 THE PREPARATION: Structure Pre‐Mediation Before Starting a Session
An Itinerary for the Pre‐Mediation Phase
Birth of an Idea: A Bet
Proposing, Accepting, Refusing Mediation
Who Proposes Mediation First?
How to Approach a Party's Resistance or Refusal?
Choosing the Mediator
From the Idealized Mediator to the Best Possible Mediator: Question of Trust
A social conflict in audiovisual media
Trust in the person
Trust in the organization
What Are the Reasons for the Mediator to Accept or Refuse Mediation?
Proximity of the Mediator to a Party
What Should the Compensation Be?
Preparing the Agreement to Mediate
Letter inviting parties to mediation – testimony of a mediator
A mediation contract proposed by a freelance mediator
“I commit, throughout the mediation …
“Co‐mediators commit
“We acknowledge having been informed of the objectives and conditions of mediation
A Preparation Itinerary for the Parties' Mediation
What Is the Scope of the Concerned Parties?
Stakeholders Attending or Not – Example of Children
Empty chairs
Absent but Informed Stakeholders. Harassment complaint within a company
Representatives with a Limited Mandate
Mediation between corporations
Solicitation of Influential Stakeholders
The Parties' Individual Preparation
Preparing Interactions
I prepare my communication:
Analyzing a Difficult Situation
I analyze a difficult situation
Methodical Preparation
I get prepared: The 10‐assets preparation method. On the people dimension:
On the problem dimension:
On the process dimension:
Lawyers and Advisers of the Parties
Lawyer at the Service of Clients: Negotiator Before Litigator
The Presence of Lawyers in Mediation: Three Typical Configurations
The Evolution of the Lawyer's Role as a Mediation Adviser
The Compensation of the Lawyer‐Adviser in Mediation
The Lawyer Prepares
Preparing for the Mediator–Lawyer Relationship
The place and role of lawyers: Seven approaches observed in mediation*
A Preparation Itinerary for the Mediator
Being Clear on Questions of Principle
As a mediator, am I sure that …
Preparing for the Problem Dimension
Possible questionnaire sent in advance by the mediator to the parties. Confidential
Reflecting on Good Styles of Intervention
Three Levels of Intervention: People, Problems, and Process
Three Models of Mediation Sessions: Private, Joint, or Mixed Meetings
Setting Up a Mediation Space
Room arrangement for mediation in the Democratic Republic of the Congo
Notes
CHAPTER 5 THE PORTAL: Set the Stage Before Problem‐Solving
P for Presentations
The Mediator Welcomes the Parties
Mediators faced … with bodyguards
The Mediator Presents Themselves
Introducing oneself: Underlining familiarity with the apparent mediation stakes, without making it the only issue
Point of vigilance: “I can understand” versus “I know best for you”
The Mediator Invites the Parties to Present Themselves
Last name or first name? Formal or informal language?
O for Objectives
The Mediator Explains the Spirit of Mediation
What mediation is … a useful reminder
The Mediator Explains Their Role
Which Level of Intervention?
Which Session Formats?
Which Approach to Problem‐Solving?
The Mediator Invites the Parties to Specify Their Expectations
R for Rules of Engagement
No Interruption
Mutual Respect
Confidentiality
Willingness to Enter into a Binding Agreement
The Mediator Gets the Parties to Agree on All the Rules
T for Time and Stages
Time
Stages
A for Agreement to Mediate
Agreement between Greenpeace and Monsanto
Mediation: A result of successive agreements
L for Launch!
CHAPTER 6 THE PAST TOWARD THE PRESENT: Grasp the Problems Before Seeking Mutual Recognition
First Move: Identify the Problems to Negotiate
Engage the Parties in a Dialogue
Conduct a Mediation: The Action Plan
The History of the Relationship, from the Origins to the Present
The History of the Conflict, From the Origins to the Present
The List of Problems
The Return to Spontaneous Exchanges Between the Parties
Other Approaches … to Be Determined
Some Open Questions to Figure Out the Sensitive Points for Each Party
Quintilian's Hexameter, or seven open, useful questions for mediators
Put a List of Points on a Flip Chart
If Necessary, Prioritize the Problems
How to introduce a potentially delicate question smoothly
Second Move: Uncover Motivations
Why an In‐Depth Examination?
Matignon agreements on New Caledonia
The Art of Questioning
Different Types of Questions
From Contradiction to Explanation
Listen in Mediation
Listening How?
Ten principles for active listening
Listening to Whom?
Frequent conflicts over noise in a housing project
Frequent conflicts between detached‐house neighbors
Listening to What?
Framework 1 – Subject Changes
Framework 2 – Chronology of Events in the Conflict
Framework 3 – What and How
Framework 4 – The Motivation of the Motivation, or the “Why of the Why”
Framework 5 – Needs‐Values‐Feelings
Framework 6 – The Multidimensionality of a Conflict
Looking in depth at 15 typical conflict dimensions
Framework 7 – Differences and Similarities
Third Move: Seek Mutual Understanding
Before Reciprocal Recognition
Asking a Question to Each Party
The Invitation to Mutual Recognition
Family Mediation: The Runaway Son
Community Mediation: Neighbor Spills Paint on Flowers
Mediation at the Workplace
CHAPTER 7 THE PRESENT TOWARD THE FUTURE: Generate Possible Solutions Before Potentially Committing
First Move: Invent as Many Solutions as Possible
Strategy #1: Creativity and Brainstorming
Who will have custody of the kids?
Analogous Universes and the SCAMPER Method
A graffitied wall – detour by an analogous universe
Looping back to the starting universe while transposing
SIMSOC in Burundi
The graffitied wall – the SCAMPER method
Strategy #2: Techniques of Value Creation and Directed Questioning
Create Value by Leveraging Differences
Differences in Time Preferences
Differences in Value
Two homes to share in a divorce
Differences in Risk Preferences
A spouse fearing for her future earnings in divorce
Differences in Resources
Create Economies of Scale and Scope
Avoid the Recurrence of Conflict
Disintegration of the former Yugoslavia
Conflict between a key shareholder and the managing partner
Belgium or centrifugal mediations
A mediation mission in a collective bargaining dispute
Dispute system design to prevent and resolve conflicts
Strategy #3: Suggest Solutions in Case of Impasse
Receive Express Validation of the Mandate by Both Parties
Recall the Principle of Self‐Determination in Mediation
Present Many Solutions, Opinions, or Ideas
Justify Solutions
The children's return from school
An antibacterial component desired by a client
Invite the Parties to Elaborate on Proposed Solutions
Second Move: Evaluate Solutions
Dual Request for the Exclusion of Extremes
Occupied territories
Rank All Solutions to Move toward One Solution
Third Move: Decide – Toward a Commitment Among Parties
Use Single Text, Shuttle, and Brackets
Get Support for the Final Draft of the Agreement
Validate the Agreement
Summarize Commitments and Get Signatures
Absence of a General Agreement
End of Session: Final Moments of the Mediation
CHAPTER 8 THE PITFALLS: Question Practices Before Acting
The Mediator's Initiatives: Measuring Risky Behaviors
Items requiring vigilance during the introduction phase. Reminder about the suggested method: PORTAL
Assuming That the Parties Know What Mediation Is
Defending the Principle of Mediation
Entertaining an Unspoken Vision of the Mediator's Role
Defending Myself as a Mediator
Rushing to Solve the Problem
Trusting Unbridled Spontaneity
Relying Solely on Subjective Principles
Favoring Transparency without Insisting on Confidentiality
Not Getting Prior Agreement on Implementation
Monopolizing the Process
The Mediator's Awareness during the Phase “From the Past to the Present” Reminder of suggested moves (Chapter 6)
Owning the Problem
Proceeding as if We Were in Court
Giving Too Much Attention to One of the Parties
Talking Too Much during the Listening Phase
Being Obsessed with the “Truth”
Confusing Listening with Agreement
Favoring Adversarial Proceedings
Withdrawing
Mistaking Positions for Solutions
The Mediator's Awareness During the Phase “From the Present to the Future” Reminder of the suggested moves (Chapter 7)
Linking Common Interests to Solutions
Dreaming About the Good Solution
Being Tempted to Respond to One Party's Request for a Solution
Acting as a Deus Ex Machina
Rescuing One of the Parties
Getting an Agreement, No Matter What
Closing Prematurely
Letting Discouragement Get the Better of Me
The Parties' Initiatives: Facing up to Critical Moments
Dealing with Bad Faith
Disagreement of the Parties on the Facts
Dialogue in criminal mediation: Battle on the landing
Instinctive Strategy: Investigating to Objectively Establish Facts
Contradictory versions
Three Other Reflective Strategies to Break the Impasse
Too Few or Too Many Words
Silence
The Flood of Words
Pointless Repetition
Constant Interruption and Cacophony
Thirty minutes of tension … as a pattern
Unyielding Parties
Personal Attacks among Parties
Personal Blame on the Mediator's Performance
A Party Threatens to Leave
Strong Emotions
Stalling Tactics
A Party in Conflict with Themselves
An Absent Party or Stakeholder
Defective machines or incompetent local technicians?
Lack or Absence of Dialogue among the Parties
The Parties Refuse to Physically Meet One Another
The CEO and the union leader at a restaurant
The Parties Ignore One Another during the Mediation Sessions
CONCLUSION: AN ETHICAL PERSPECTIVE AND QUESTIONING
Questioning: The Philosophical Foundation of the Mediator's Actions
The Mediator and the Power of Self‐Questioning
The Mediator and the Power of Questioning the Other
The Mediator and the Power of Problem‐Solving
The Mediator as a Powerful Ethical Model
Ethics of Responsibility Toward Both Parties
Beyond Impartiality and Neutrality
Morality: Private Conception Versus Public Order
Ethical Dilemmas for Three, Two, and One
On Ethics in Mediation
BIBLIOGRAPHY
ABOUT THE AUTHORS
DETAILED TABLE OF CONTENTS
INDEX
WILEY END USER LICENSE AGREEMENT
