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When studying negotiation techniques, we saw how difficult their practice was.

There are many obstacles: bad relationships, insufficient information, violent emotions, hesitation to express one’s needs, difficulty to be creative, bad communication, etc.

Confronting such difficulties, parties will nevertheless wish to find a solution to the dispute by asking a third party to help them.

This brought about the invention of alternative dispute resolution (ADR), also known as amicable or appropriate dispute resolution, as far as dispute resolutions is concerned.

Mediation appeared to be the mother of all ADR and the best one to help negotiate or manage the implementation of a contract.

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A Third Party between the Parties

The “neutral” that the parties will call to help them resolve the problem (often called the “neutral” because neutrality is one of his key qualities as we shall later see) can fulfil several missions.

LITIGATION

The most usual common mission given to a third party to resolve a dispute is asking the neutral to make a decision for the parties.

This is so usual common that, everywhere in the world, governments create such a service through their judges. In addition to their repressive role, judges will find solutions to private disputes. Their decisions will be binding on the parties.

To this effect, governments create procedural rules to standardize the treatment of the cases.

The advantage of this system comes from its availability and its predictability because it applies previously known rules of law through procedural rules that are equally known by the parties or their counsels. This also helps prevent disputes. As far as you can predict the solution, you do not need the judge anymore.

The judicial resolution of conflict also has some disadvantages. As is it his public, it requires the disclosure of information that one would wish to keep secret. The general mission of the judge may be a problem in highly specialized matters. As the judge is always appointed nationally, one may question his impartiality in international matters. In addition, the institution is not always working as well as needed.

Therefore, arbitration developed and particularly in international matters.

Arbitration is also based on the concept that a third party will make a binding decision. The arbitrator is a private judge. The parties choose him and they pay for his services. The parties or the arbitrator decide on the procedural rules. The choice of the arbitrator in terms of nationality, availability and technical expertize is supposed to compensate the weaknesses of the judicial system. The main disadvantage of arbitration is its cost.

THE ADR

In the United States, when it was considered that something should be done to make the judicial system less expensive, people looked for alternative solutions: alternative dispute resolution methods, which included arbitration and other procedures that will be described.

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Some authors rightfully remarked that there was a considerable difference between justice and arbitration on the one side and the other methods on the other side: the first ones resulted into constraint whereas the other ones help the parties find an amicable settlement.

This is how the A of ADR moved from Alternative to Amicable.

Here are some examples of possible ADR. The difference between them is always about the definition of the mission given to the neutral.

The Informing Neutral

One of the possible obstacles to an agreement could be the lack of information of one or more parties. We saw that the procedure by which information would be provided or replaced by confidence mattered to all parties, who must be reassured that they were all sharing either the same information or at least relevant information.

A third party can be invited to supply this information. This is what was done in the case of the model.

The Evaluating Neutral

In the United States, this procedure is often referred to as “early neutral evaluation”.

To avoid the cost and trouble of judicial proceedings, the idea is to ask a third party (possibly a retired judge) to give an opinion on the likely outcome of the case.

The same need is not necessarily present in countries where the procedure is not as complicated and expensive.

It can anyway be of interest in some circumstance. Parties may have different views on a point of law. They understand the facts and possibly the contract in the same way but their interpretation of applicable law is different. They need the opinion of a neutral on this point of law on this point and can perfectly draw the consequences in negotiation/mediation.

Unfortunately, the law in most countries does not allow the parties to go to court to only obtain an opinion on the applicable law. Courts can only take a case based on a claim: a request for money in one way or another. Courts must draw the consequences of their decisions on the law and it must be requested to do so to be able to consider the point of law.

This is often quite damaging. This is particularly true when the relationship can or must go on. This rule brings the parties to terminate their relationship whereas they could perfectly accept a legal interpretation and make new agreements based on it.

A legal opinion by an independent and qualified third party jointly requested by the parties, allows the resolution of such situations.

I happened to play this role in different and revealing circumstances.

In the first case, a young businessman had asked an investment fund to invest €1 million in a company he had just created to develop an invention of his. With this amount the fund held a minority share of the capital. It was agreed that after a year, three conditions should be fulfilled: financial, technical and commercial. If the three conditions were fulfilled, the fund had

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to invest an additional million euros and would remain a minority shareholder. If only two conditions were fulfilled, the fund had to invest the additional million and would become a majority shareholder. If one or none was fulfilled the fund was free to invest in or not.

In the course of the first year, the young inventor found a way to improve his invention. He offered it to the board where the fund had a seat. They accepted that the product be modified to include the new invention. Thus the technical condition agreed in the contract made no sense any more and could not apply.

At the end of the year, the fund said that the technical condition having not been fulfilled, whereas the others had been, they were in the second case and they had to invest another million and become majority shareholder. The founder said that as far as the fund had accepted the modification, they could not invoke that clause to become majority shareholders.

The fund said that, as a board member they had to make the best choices for the company and that they had then voted in favour of the technological change. But in their capacity as shareholders, they had to take care of the interests of the investors and the positions that they had taken as board member were not binding them has shareholders.

The parties were in agreement and their differences were only on the interpretation of the contract.

They asked me to say how the contract should, in my view, be interpreted so that they would be able to increase the capital, which was becoming urgent.

In another case, the subcontractor considered that they had been deceived on the occasion of the signature of a contract where the technical conditions were, in their opinion, confusing. Since the two companies belonged to the same group, which would have suffered considerable damages if the contract was not implemented, the subcontractor had gone on working but was asking the main contractor for amounts about three times higher than what was agreed in the contract.

The claim was based on the idea that the contract was void for fraud. If it wasn’t, the amount due was much lower.

To allow them to continue the discussion, they asked me to tell them if, in my opinion, the contract was void or not.

The Choosing Neutral

This procedure is known in the United States as “baseball arbitration” because it was invented on the occasion of the negotiations of the salaries of basketball players.

It is intended to overcome the blockages at the end of a negotiation where, for instance, a party demands 100 and the other one is not ready to give more than 90 and where no one is ready to soften their position.

The concept is to ask a third party (who can be the mediator if there is one) to receive the last offer of each party and to choose one of them, which seems to him/her the most “reasonable”. A neutral, who receives two offers

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of 100 and of 90 cannot choose a figure in between. He must either choose 100 or 90.

The procedure can take different forms. What is important is that the offers be received separately from both parties and that they do not know the offer of the other party when they make theirs. The simplest way is that they each give their offer in a sealed envelope. Then, you can imagine that the third-party makes his choice immediately or that he informs the parties of their respective offers and gives them the possibility to improve their offers in the same way, before making the decision.

The great advantage of this procedure is that it is self-destructive: as soon as you offer it, it becomes useless. It implies that you offered people who are sticking to a position to soften the position and let a third party decide.

In the case of an impasse, when the negotiator represents an organization, he is usually at the maximum of the instructions he received. He then has to talk to his boss and ask for new instructions. The new instructions he will receive may be to go a little further but rarely to let the neutral decide. The negotiation can then resume.

In the case of an individual acting for himself, the same phenomenon happens because he set himself a limit that he has reached and that he must now challenge. Freud would have said that he must go and receive instructions from his super ego.

Anyway, this invites the parties to revisit their position and, as a result of that, they will most of the time resume negotiation/mediation and agree.

Proposing to use this procedure is a very efficient way of re-launching a negotiation or a mediation, which is in an impasse.

The Neutral of All Trades

Except in the case of arbitration, which is regulated by national legislation and international conventions, the description of these procedures is in no way compulsory. Each time the parties agree to ask a third party to render a service. They are free to decide the content and the conditions of his mission with the possible third party.

It is then possible to ask the neutral to fulfil any desired mission and to give him several successive or simultaneous missions. Here is an example: in the case that I described above of a subcontract within a group, the CEO of the subcontracting company had asked the Secretary-General of the group to make a decision in the dispute. The Secretary-General asked me to help him deal with the situation.

I had approached this mission as mediation but on the very first meeting it appeared that they needed a legal opinion about the validity of the contract. The parties then instructed me to give this opinion.

Once I had given the opinion that the contract was valid, the parties asked me to go on with the mediation.

As the mediation failed, I went back to the Secretary General to tell him that he would have to make a decision.

He asked me to prepare such a decision. The difficulty was about the applicable rules. Should I prepare a decision based on legal considerations?

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or should I take into account the fact that both parties belonged to the same group and shared a number of values of this group? He then asked me to prepare two decisions: one based on the law and the other one taking those values into account. This is what I did and the Secretary General made a decision, which was not an arbitration award but a hierarchical decision.

This flexibility is that the mission of the neutral was actually taken into account in the first ADR rules, which were published by the ICC in 2001. These rules stated that the ICC would appoint a neutral and that the parties would then discuss his mission with him. By default, his mission would be mediation.

As such was the case most of the time, the new rules of 2013 now provide for the opposite. But in both cases, this is a flexible mission.

The Mediator

There are almost as many definitions of mediation as there are authors on the topic.

In the European directive of May 24, 2008, mediation is defined as “a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State.”

This definition is not satisfactory because it is tautological. If mediation is defined as a process led by a mediator, then we will have to define a mediator, which is not the case otherwise than to say that it is a person who handles mediations.

It also includes the idea that the process is structured without indicating what the structure is.

Due to the extreme flexibility of mediation, it seems impossible to limit it to any definition. As an illustration of this, we can already make a difference between two forms of mediations/mediators:

• The evaluative the mediator who is expected to give the parties his evaluation of the best way to resolve the problem.
• The facilitative mediator, who limits his intervention to helping the parties find the best solution themselves.

I do not feel the need to add one more definition to all those, which can be found in literature.

But I would like to insist on one characteristic of the mediator: He has no power either by the law or by the parties. He is only there to help.

This already reveals a first indispensable quality of the mediator: humility. The mediator is only there to serve. He is only there to do his best so that the parties can agree on the best possible solution.

I would also like to emphasize the fact that mediation does not only exist for dispute resolution. It can also take place in all cases where the parties need help to reach an agreement and particularly to negotiate a contract.

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Actually mediation is a negotiation assisted by a powerless third party. Sometimes authors say that negotiation (which they understand as simply bargaining) is the less noble part of mediation. They even reject it.

But as a matter of fact the parties only consider mediation when there is something to negotiate.

This brings us to the distinction between dispute and conflict.

Of course, the beauty of mediation will be in the help given to the parties to resolve not only the dispute but also the conflict. But there will not be any mediation if there is nothing to negotiate. The dispute possibly opens the way to the resolution of the conflict but in order to initiate the mediation process, there must be something to negotiate.

Actually it is a pity to use a third party when the difficulty can be resolved by negotiation between the parties themselves. The lack of success and the impossibility of a negotiation are the best reasons to use mediation.

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The History of Mediation

Mediation is eternal.

When parents try to reconcile their fighting children, they mediate.

In all small communities, disputants go to someone they trust to help them find a solution. It can be the mayor, the minister, the president of the trade union, the president of the club, etc.

This third party owes his mission to the trust that the parties have in his wisdom and knowledge.

Depending on the case, he will act psychologically to help the parties reconcile, or will suggest a solution, which will be followed most of the time.

The difficulty starts when the community grows and the parties do not necessarily know someone they all trust.

From there, two different models developed.

THE ASIAN MODEL

In this model, as opposed to the Western model, there is no absolute value. No one is right or wrong. Wisdom is about search keeping a suitable balance between contradictory positions. Therefore, admitting that you are unable to reach this balance, by asking the judge to use constraint, means that you lose face. And at the same time you make the other party lose face too by implicitly accusing him of the same inability. And making the other party lose face is a shame on you.

This is something that one must avoid as much as possible. There is therefore in China and more generally in Asia an immemorial mediation tradition. In mediation, no one loses face. It is voluntary, or supposed to be so, in their model.

This is an evaluative mediation model. The mediator will offer the parties a solution that they will accept. The acceptance is almost systematic and in the eyes of a Westerner the recommendation is compulsory, the solution is supposed to come from the free will of the parties who will thus avoid losing face. Nothing was imposed on them; they have accepted a solution by respect of the wisdom of the mediator.

And actually the refusal of the solution offered by the mediator has no legal consequence. There is no other consequence than a full loss of face, which is of a gravity that a Westerner can hardly imagine.

The great advantage of this system is linked to the fact that it is swift and informal. It also allows saving the relationship because nobody loses face.

In our western eyes, the inconvenience is that the opinion of the mediator is not easy to foresee. He will not care to know who is right or wrong. He will

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try to re-establish a balance between the parties, an idea, which is not always clear in our eyes. Westerners are also afraid that the Chinese mediator may recommend a solution, which would be favourable to the Chinese party and there would be no recourse.

THE WESTERN MODEL

This model is based on two approaches: On the one hand there is only one God representing the absolute Good, while on the other hand there is the Aristotle philosophy, which puts forth that Justice, Truth and Beauty exist beyond immanent phenomena.

The necessary conclusion of these two ideas is that, in case of a dispute, one party is right and the other is wrong. The value of a person is not linked to the balance that he/she can find between contraries, but to the endless strain to reach the ultimate Good, which necessarily results in intractable situations. This is the famous dilemma between love and duty. In Western philosophy, you have to choose one against the other (the good or the bad, the cowboy or the Indian, the thief or the police, etc.), whereas in Asian philosophy you have to find a balance between both or, even better, you should try to avoid finding yourself in a situation where you would have to choose.

Litigation by Default

When the parties are not able to find a solution by themselves and do not know a trustworthy third party to use, they will look for someone who will be able to find a good solution and impose it by force if needed to the losing party: the judge. In addition, in most Western countries the losing party does not only lose the case. It is sanctioned for having been wrong by having to pay for the costs, plus possible damages.

This system worked reasonably well until the middle of the 20th century, even if it was criticized everywhere.

The Limits of Litigation

The main criticism is linked to the necessary time to reach a decision. This process by which a third party must take a decision requires a lot of time, even if the court has no backlog. The first party has to instruct their lawyer, provide him with the evidence, then the lawyer will have to draft the necessary documents, these documents will have to be given to the other party who will need time to organize their defence, to answer (and there can be several rounds a reciprocal answers), discussions before the judge, reflection time, drafting of the judgement, etc.

In practice, in any country, either in court or in arbitration, it is difficult to obtain a first instance decision within less than one year.

And very few things can wait for a year. No contract can be suspended for a year without being terminated and practitioners know how difficult it is to handle the consequences of the cancellation of a contract or the confirmation of its validity. Only real estate can sometimes wait.

This eternal problem is worse in our time when the economy evolves faster and faster. The court case often takes more time than the life of some

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products. Today when the court decision is given, it often happens that there is no one in the company, who was there at the time of the facts.

As one of the past presidents of the French Supreme Court said, “Justice gives dead answers to dead questions.”

Because it requires a lot of work, the litigation process is expensive. This is inevitable even if the costs vary from one country to another.

The judge can only make decisions on what he is asked. Even if he thinks that another solution would be preferable to those suggested by the parties, he cannot give such as solution.

In addition he can only be asked a limited number of measures. You cannot ask a judge to change a contract. If you have a bad contract, the judge can either enforce it, which confirms the bad situation or he can cancel it, which puts you in another bad situation of no contract.

The French civil code expressly states: “the obligation to do resolves in damages”. This is an elegant way to acknowledge the inability of justice to take this obligation into account. If your contractor does not work properly on the construction of your house, you may obtain money in five years but this will not give you a well-built house and during the time of the court case, you will have to live somewhere else and to pay the loans and the costs of the court case.

Justice makes decisions according to the law. We do not live according to the law. The law determines the limits beyond which we shouldn’t go. We live according to what we believe it is good for us, for our association, our administration or our company.

In other words, justice deals with a problem, which is different from ours.

If you have been a party to a court case and attended the hearing, the case in discussion must have seemed quite foreign to you and you probably had a hard time recognizing yourself in it.

Then the solution can hardly satisfy the parties. You may be satisfied if you prevailed over the other party but the solution that the judge is giving you is not the one you actually needed in life. And it cannot be otherwise.

The basic principle of justice is that the judge will make his decision based on logical elements to establish the facts and on legal elements to decide who will win or lose. The emotions of the parties should not be taken into account.

But we see that emotion is predominant in the way we relate to a conflict.

In some jurisdictions, concepts such as moral damage or punitive damages have been introduced to cope with what can be excessive in this rule. But financial compensation is very far from the emotional problem and we see that a real answer to the emotional problem will often make the financial claim disappear.

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For all these reasons, it became clear at the end of the 20th century that another answer than litigation should be found for disputes appearing in the Western world.

Community Mediation

A need for mediation first appeared in major cities of the world in the 1970s.

Quick changes in society created difficult relationships, particularly between groups or individual of different origins (remember “West Side Story”).

Independent and neutral persons had to come and bring harmony in these relationships. This is also concerned family and labour conflicts.

At that time the interveners had no special training. But many times people such as priests, social workers, etc., who were experienced in listening and had ideals, allowed intelligence of the heart to replace technique.

This movement developed in many countries experiencing the same transformations.

Mediation as a Remedy to the Weaknesses of the Judicial System: The United States

In 1976, a conference known as the Pound conference was convened at the University of Minnesota to reflect on the causes of the dissatisfaction of the public regarding the American judicial system.

On this occasion Prof Frank Sander from Harvard Law School made a famous speech in which he proposed the concept of a multi-door courthouse. The idea was that different types of matters could receive different types of treatments. Hence the concept of ADR and mediation.

On the same year, Judge Warren Knight of Orange County was about to retire. Local procedural rules demanded that there would be conciliation by the judge prior to the introduction of a court proceeding. The success rate was very small: less than 5%.

Warren Knight, looking back on his professional life, realized that he had spent about a third of his professional time in conciliation. In other words, a third of his professional time had almost been wasted. It was astonishing because considering the heaviness and the cost of proceedings, it was obviously in the parties’ interest to find an agreement rather than going through litigation.

When he tried to understand the reasons for that, he found two:

1. The judge, as the conciliator, could only spend about half an hour for each case. It was unreasonable to believe that two parties about to go to court to resolve their dispute, would be able to settle it in half an hour.
2. As the conciliator was the judge the parties could not speak freely in front of him. Would you tell your judge that you know your case is not that good or that you are simply trying to put pressure on the other party to obtain something else?

When he thought a little further, he realized that there was nothing to prevent his colleagues from letting him go on doing the conciliations after his retirement. As he did feel like spending his retirement time in front of TV,

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he suggested to them to do so. As he would not be a judge and he would have all the necessary time to take care of the case, the success rate might improve. But he set a condition to this. His conciliations would remain confidential. He would only tell them if an agreement had been found or not. It was important that the parties would be assured not only that he was not a judge anymore but also that what they would say would not be reported to the deciding judge.

Based on these principles, his success rate was immediately multiplied by 10; just because he was powerless, had time and would keep everything confidential.

Later, Warren Knight created JAMS (Judges Arbitration and Mediation Society), which is now the largest mediation and arbitration centre in the world.

Outside JAMS, the word spread about this new powerful conciliation method, called mediation. With the main goal of escaping the hurdles and costs of litigations, parties and their lawyers promoted it.

Mediators started to exchange their experiences and techniques, the tricks that worked well.

Mediation and Negotiation

The book Getting to Yes, by Fisher and Ury was published in 1981. The link was obvious and mediators adopted their ideas. The success rate is increased again to reach 80% for some mediators.

At that stage, mediators intervening in court-annexed mediations were essentially concentrating on the dispute. They organized the bargaining between the parties, which they most of the time kept separate. It was a sort of shuttle mediation.

But some mediators wished to concentrate on the human aspect rather than on the financial process. Through various books¹, they insisted on those factors in addition and sometimes even as a substitute to bargaining techniques. The consequence of this idea was a much smaller use of separate meetings (called caucuses by the Americans).

The successor of Fisher at Harvard, professor Robert Mnookin, even suggested mediation without caucuses at all. He now has more moderate views.

The Expansion of Mediation in the World

Mediation of conflicts, which was born in the United States had rapidly extended to Australia, New Zealand and Canada. It arrived in Europe in the 1990s.

At that time mediation was mainly understood as a tool for family matters. It could ensure peaceful divorces.

Mediation was received differently in various countries.

I believe that its success in the United States, Australia, Canada and New Zealand is due to cultural common points between these countries. They all

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are countries of immigration with a strong Protestant culture. This means that changing life and being responsible for oneself is a major feature of their cultures.

In the United Kingdom where procedural rules are heavy and expensive, mediation was encouraged by the civil procedure reform due to Lord Woolf in 1998. These rules are intended to induce parties to use mediation before going to court. A party, who would unreasonably refuse to use mediation, may have to pay the cost of the case even if it wins

In France, legislation about mediation was introduced as early as 1995. It allowed the judge to suggest mediation to the parties and, if they accepted, to appoint the mediator and decide on his remuneration. It took many years before judges seriously considered mediation.

In Germany and Australia, where the judge usually acts as a conciliator, the need for mediation did not appear as urgent.

In spite of some private and governmental initiatives the development was rather slow.

The European Directive of 2008

European directive on mediation was adopted in 2008. A directive is a piece of legislation, which contains general principles that have to be introduced in the legislation of the member states.

The principles of this directive are close to those of the then existing French legislation. The judge may suggest mediation to the parties and appoint the mediator.

This European directive was very efficient in creating an obligation for all European countries to adopt legislation on mediation and also in inducing judges in the countries that already had legislation, to use mediation more often.

Debates that surrounded it made lawyers and judges discover that it was not a simple trick but a universally accepted instrument, which could render real service in all sorts of fields and particularly in commercial matters.

Following this directive, large law firms and judges started to wish to experience mediation. The experience having generally been satisfactory, mediation is now growing more rapidly.

We also start to see mediation outside of the conflict resolution field, for the negotiation or the renegotiation of contracts.

MEDIATION IN THE WORLD TODAY (2015)

Outside of Asia and of its tradition of evaluative mediation, one can say that mediation is fully developed in the United States, Australia, New Zealand and Canada. To a lesser degree, it is well implemented in the United Kingdom and in the Netherlands. Some of these countries are now experiencing difficulties in their practice of mediation, which seems to drift away from what it is supposed to be.

It is developing in continental Europe. It is still in infancy in the Middle East, in Russia and in Africa (outside that some traditional forms of conciliation). Situations vary from country to the other in Latin America.

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This shows that two factors seem to play an important role:

3. The heaviness of procedural rules and of the resulting costs;
4. The fact of being a country born from immigration and/or of Protestant culture. In other words, mediation develops in better countries where the main culture includes values of individual responsibility, of reinvention of one’s life and of challenging one’s own situation.

On the contrary, in countries with Catholic, Orthodox or Islamic tradition where the culture suggests that the solution should come from above (God or the King) the growth of mediation is more difficult.

This re-appropriation of power over one’s destiny offered by mediation is sometimes painful for parties coming from those cultures.

Surprisingly, legislative intervention, except when it creates compulsory mediation as it did in Italy and Argentina, does not seem very efficient by itself.

When facing a strong resistance from the lawyers for business reasons and from the parties for cultural reasons, the simple ability for the judge to suggest mediation is of little effect.

In those countries, the development of mediation can only result from a cultural change. Chairman Mao proved that a cultural revolution could not be forced. It takes time to happen.

A generation seems to be a reasonable amount of time to hope to see mediation is fully embraced in a reasonably resistant culture.

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The Main Mediation Models

Some distinctions should be made between mediation models.

SOLUTION ORIENTED MEDTIAION AND TRANSFORMATIVE MEDIATION

Most mediators try to help party find a solution to their dispute. This is their basic mission.

But mediation can sometimes take place outside the scope of the search for a clear solution to clear problem. It is more about helping the parties manage a difficult permanent relationship. Mediation is then intended to transform the conflict and the relationship in such a way that each of the parties feels heard and able to act on its destiny again.

Baruch-Bush and Folger turned this transformative mediation into a theory in their book “The Promise of Mediation”. It is mainly used in family, workplace and community mediation.

It was also used in very large mediations for populations impacted by infrastructure projects (construction of a dam, of mines, etc.).²

The same concept is used in a still rare practice: “Deal mediation” and in “partnering” and “alliancing” practices. The concept is to ask a third party to help in the negotiation of a contract or to assist the parties throughout the performance of the contract.

THE ALL CAUCUS MODEL

In the United States, mediation was born from practice. Some people thought that parties needed help to agree. They started trying to help without any training or methodological background. They did their best… even today renowned mediators proudly say that they have never learned anything and have never read a book about negotiation or mediation.

The culture of the United States was born in England with the Puritans. It means that it has very cautious about emotions. Emotions are seen as problematic in the process, which is intended to reach a “reasonable agreement” and which must be conducted in a “reasonable manner”.

This is why mediators felt very uneasy when some parties were expressing their emotions violently.

Separate meetings (caucuses) allowed keeping the parties apart so that the other party would not hear the violent expression of emotions. Also

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because the other party you would not be in the same room, emotions would probably not be so violent.

This became a mediation model where the parties are kept in separate rooms during most of the mediation and where the mediator is shuttling between the two rooms. Typically, mediation starts with a plenary (also called joint) session with each party expressing its position. The mediator will then separate them to only allow them to meet again for the signature of the agreement if there is one. Moreover some mediators never let the parties meet neither at the beginning nor for the signature.

In this type of mediation, the parties do not negotiate together. They negotiate with the mediator, who, in the best case, will present the point of view of the other party, as he understands it, and, in the worst case, will present it in a modified manner that he believes will be useful to reaching agreement.

Obviously, this type of mediation does not allow the overcoming of relational conflicts. It is unlikely that it will allow information conflicts to appear and it is totally impossible, in this model, to replace information by trust.

The impossibility for the parties to speak to each other does not allow unveiling the interests. It will therefore be almost impossible to find win-win or cooperative solutions.

This method only allows distributive solutions. In the best case, this method will alleviate the feeling of constraint, though some mediators do not hide that they put heavy pressure on the parties to bring them to an agreement.

It is surprising that it continues after all the research that has been done on emotions that we discovered above.

There are several reasons for that. First, for cultural reasons, American mediators are not used to managing emotions. Some of them are scared of emotions and want to absolutely avoid them.

Lawyers support these mediators. The reason is that negotiation on emotions, values and interests makes the lawyers move out of their usual role of defending positions. Some lawyers do not really understand the process and feel useless. On the contrary, if they remain in a room with their clients and assist them in a bargaining process between two positions, they feel that they fully play their role and bring value to their clients.

According to some statistics concerning court-annexed mediations, this model would seem to reach agreements in 50% of the cases. This is to be compared to some French statistics where, for the same kind of mediations, the rate would be above 80% in a model that keeps separate meetings to a minimum.

WITHOUT CAUCUS MODEL

Some mediators and academics challenged the all caucus model.

They made a point that the agreement in this model becomes the mediator’s agreement, which may or may not be suitable for the parties. They also observed that it did not allow value-creating solutions.

Robert Mnookin, Fisher’s successor at Harvard, observed that this model does not allow interest-based negotiation with all the advantages attached

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to it. At some point he even insisted on a strictly no caucus model. He explained that caucuses ruin the confidence that parties must have in the mediator. His views have evolved but he still recommends keeping caucuses to the minimum.

In the same vain, Gary Friedman recommended a model based on mutual understanding between the parties. Transformative mediation is entirely centred on the parties. In these models, separate meetings will remain an exception and will only be used when necessary.

EVALUATIVE AND FACILITATIVE MEDIATIONS

For thousands of years, mediation has been mainly evaluative. In Europe, this model is very much criticized.

But many European mediators are actually quite controlling. This is a general tendency of ex-judges.

Criticism of evaluative mediation is based on the fact that the evaluation given by the mediator may inhibit the creativity of the parties and prevent them from finding solutions by themselves, which would suit them better than the one that the mediator can imagine.

This is a very serious argument. When it happened to me that the parties would ask for my opinion, I always managed to not give it. But I had thought about what I could say. Each time the solution I would have given to the parties was far less suitable for them than what they found by themselves.

I also noticed that sometimes the parties needed to be guided. The blockage that they experience in their contentious situation does not allow them to see things that may be obvious. Here are some examples:

1. The landlord and his tenants for only part of the building had several disputes. One of these disputes was about who should pay for shared space (hallways, corridors, etc.). The tenants maintained that they were not renting the current surfaces that they did not owe anything for it, whereas the landlord insisted on the extensive usage made by the tenants and asked them to pay for all the costs. At the time, I was called to mediate the case. This problem, with other ones, had been pending in court for 16 years! The tension between the parties was so strong that they were totally blocked on all-or-nothing solutions. It never occurred to them that they could share, though it was an obvious solution. Rather than telling them that they should share I brought them to discover this idea. I asked them if they knew of situations where people work in a building where there are private and shared space. They thought of condominiums, malls, etc. I asked them if they knew how the problem of shared space was resolved in these buildings. It became obvious that a pro rata had to be calculated.
2. Following works in a music hall, the noise in the adjacent building became unbearable. Works to stop the noise were extremely expensive. The parties had been blocked in court for 12 years. I realized that the owner of the adjacent building seemed to be a very modest person and everyone agreed that he could not live there any more. Obviously the adjacent building was worth less than the works to eliminate the noise. So I asked the parties to give me a rough evaluation of the works and then I asked the owner of the adjacent

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building to give me the price of his property. The answers were €8,000,000 and €250,000. Almost immediately the insurers understood that they should buy the adjacent building and allow its owner to live somewhere else rather than pay for the expensive renovations. In 12 years, this idea I had never occurred to them.

I am often told that such questions look like suggestions, and I may be blamed for suggesting solutions rather than letting the parties invent them.

I believe that the parties need to have their eyes opened; it is the mediator’s duty to do so. But we should not impose our views because it would create resistance. We should help the parties discover what they haven’t seen by themselves. They will then have to draw their own conclusions that they will want and which may not be those the mediators would have drawn.

This is why the mediator should ask questions rather than show them what they do not see.

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The Stages of Mediation

The Beginning

The best way to define mediation is probably to show how it unfolds. Mediators act differently but I believe all mediators share some views regarding the main stages of mediation.

I intend to describe these stages and describe the different techniques of mediators for each of them.

We will later describe the appointment of the mediator by the parties, the judge or an institution either following a clause inserted in a contract or on the occasion of a dispute.

BEFORE THE FIRST MEETING

The Administrative Organization of the Mediation

After the parties have decided to use mediation, it has to be organized. The appointed mediator and the parties must:

• Determine his fees, whether they are going to be split between the parties or not and their modalities of payment;
• Determine the duration of the mediation;
• Determine the date(s) of the meeting(s);
• Determine the rules of the mediation.

This can be done through a mediation contract.

In some countries where rules are determined by the law, the contract may not be necessary when a judge ordered the mediation and even for conventional mediation. When the mediation is organized through a mediation centre, the rules of the centre apply and there is no necessary contract between the mediator and the parties.

A distinction must be made between the fees of the mediator those of the possible mediation centre, which we will discuss later.

The mediation fees in civil and commercial matters are always determined according to time spent. It has sometimes been noticed that in big cases this resulted in an undervaluation of the service rendered. When a case for millions settles millions in a few hours, and each party is invoiced a few hundred euros, it is obviously unfair to the mediator. It is obviously a problem that no one has yet found another solution, which would take the neutrality of the mediator into account.

This rule applies all over the world with some slight distortions. Some mediators ask for a down payment to cover the preparation work and a first

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full-day meeting. Depending on the case, the preparation work and the mediation itself maybe shorter but the down payment is the lump sum and is not to be partly reimbursed. If the mediation is going to continue after this, additional fees will be calculated by the hour, the half-day or the full day. Some mediators invoice strictly by the hour.

The contract will have to determine the hourly or daily fee and the down payment stating what it is paying for, then the price and modalities of payment of the fees beyond the initial down payment. It is usually agreed that the mediator will inform the parties when the down payment has been used up, so that the parties can decide what they want to do.

The problem of the duration of the mediation has always looked like a strange question to me, as it is a voluntary process and the parties can put an end to it whenever they wish.

Nevertheless most legislation and mediation centres have rules providing for the duration of the mediation.

But even if it is a strange question, parties often wish that the duration be determined in the mediation contract. They probably think that it is putting pressure on the other party for a quick resolution.

The Determination of the Calendar

The calendar is generally determined outside the contract and in an informal manner.

But it is often a difficult point due to the number of people to bring together.

This is particularly difficult when it is necessary (and some mediators think it is always necessary) to organize several meetings and not only one.

Those rules will deal with the mediation style (facilitative or evaluative) and the code of conduct that we will further discuss. In many cases the parties rely on the mediator and do not demand that this is stated in a contract. But others feel differently and mediators should be ready to make those points clear. When a judge or a centre appoints the mediator, if the parties wish to change the legal rules or the rules of the centre, particularly regarding confidentiality, a contract will be necessary.

When there is no contract the rules are presented to the parties by the mediator when he opens the first meeting.

Studying the File

There is a big debate in the world of mediation as to whether the mediator should have studied the file before the first meeting.

Those in favour of studying it, think that they need it to fully master the case. They also think that a good knowledge of the file on their part will create trust and will give a good image of their professional ability. I do not exclude that some of them think that it is also an opportunity to invoice a few more hours.

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Those who do not think that they should study the file before the first meeting, and I am one of them, believe that the work of the mediator is about the communication between the parties and not about the substance of the matter. Their knowledge of the file may create a bias in their vision. Particularly when it is an arbitral or a judicial file, it may give the mediator a legal approach to the matter that he will then have a hard time to overcome. The substance of the case is not really the mediator’s business and he should concentrate less on his feelings about things and more on the feelings of the parties. And the way people feel will only be expressed in the oral discussion on the occasion of the mediation meetings. It is certainly not trough the court file that the mediator will understand the parties’ emotions and interests.

It is not surprising that those who study the file are also those who use caucuses the most. In both cases, they make the intellectual approach prevail over the emotional one.

Preliminary Papers

Some mediators ask the lawyers to send them preliminary papers prior to the mediation. This comes in addition or in substitution to the file. These papers can fulfil several functions:

The first (and worst) function is to avoid too much resistance from lawyers who are afraid that mediation would take business away from them. The drafting of the preliminary paper gives them work.

When mediators receive a mediation case by a court or a centre, they often have very little if any information on the case. The paper at least allows them to know what it is about and possibly to refuse to serve in this case if it is one where they, for instance, have a conflict of interests.

The most interesting purpose is to bring the lawyer and his client to think about the problem with another approach than in litigation.

In litigation, the question is to know who is right and wrong and possibly to know who can bring evidence of what. When one enters a conflict resolution process and particularly mediation, the problem should be seen in another way. In most cases, except for lawyers who are very experienced and informed about the process, lawyers rarely take time to discuss with their client about the way to approach the problem in mediation. The paper may be a means to bring them to approach the problem differently to find an amicable solution.

Some mediators, particularly in the UK, ask for a position paper, a document where the lawyer will explain the position of his client. I am not in favour of this type of document, which will anchor the parties in their positions, whereas the meaning of mediation is, on the contrary, to help them get away from the position and to concentrate on their needs and interests.

The paper can present the case in a detailed or short form. A detailed presentation may just be a duplication of the file. In the pre-litigation phase where there is no file yet, this paper may be a substitute. In any case, it will probably anchor the parties in their positions.

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On the contrary, a short presentation may bring the client and his lawyer to see the case from a distance and to go to the essential points.

This is what I usually ask lawyers. I also ask them there have already been any talks and why, according to them and their clients, they were not successful.

I usually obtain a good summary of the case and bad answers to questions about the reasons of the unsuccessful negotiation. The difficulty in answering this question is neither surprising nor very important. It confirms the need for mediation.

In other words, this type of paper may allow the parties to look at their case from another perspective, which is always a good thing. These questions may also allow them to think about their case in another way, to direct their thinking toward a solution rather than toward confrontation. In the worst case, it will confirm the necessity of mediation to reach an agreement.

Pre-Mediation Meetings

Some mediators wish to meet the parties with or without their lawyers before the first meeting.

This desire is due to several preoccupations:

• To discover the people, possibly the companies or organizations, before the first mediation meeting;
• To build a trusting relationship with the parties before the mediation.

Among the mediators, who like these meetings, there are two different opinions. Some like to limit these private meetings to the discovery of people and organizations and to the description of the mediation process. Some wish to start discussing the matter.

As a matter of principle, I am not in favour of prior separate meetings. When parties demanded it, I sometimes accepted. I almost always regretted it. There are several reasons for that.

If indeed I build a positive relationship with the party, there is a high risk that they will interpret it as some kind of link between them and me. They feel the mediator is on their side. This is of course not true at all. I intend to remain totally impartial and the other party would probably have the same feeling. When the parties discover that, contrary to what they thought, the mediator is not on their side and that he remains perfectly impartial, they may be disappointed and then have negative feelings about him or about the mediation process.

If the parties speak about the matter in a preliminary caucus, they will not feel the need to repeat in a joint session what they said in separate meetings. There will even be reluctant to do so. So the plenary may turn out to only be a simple conversation about facts and feelings, and I will not be able to make the parties express what they feel in their hearts. And this is what matters. What I know or do not know does not matter. The only important thing is that the parties are able to communicate with each other. This private meeting may make us lose a considerable in part of the power of the mediation process.

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If the separate meetings are limited to procedure, as some mediators do, I do not see why we would need them. The parties must share all information about the mediation process and it is actually described at the beginning of the mediation, as we will later see. This is only a loss of time and additional billable hours.

As a general rule, when I am appointed by a court or a centre, I first get in contact with the lawyers. This allows me to discover the case in a few words and know if they are familiar with the mediation process or not. It also sometimes allows me to discover what the relationship is between the parties and the lawyers.

This is usually done by phone so that they can be considered as separate meetings. These are usually five to 10 minute meetings per lawyer. Just getting in touch.

It sometimes happens, but very rarely, that I organize a first meeting between the lawyers without the parties. This is for cases where there is a particularly complex legal situation that I must understand to be able to handle the mediation and when the parties are not needed for the description of these complex situations.

INTRODUCTION

Once the administrative problems have been dealt with, once the retainer has been paid, once the possible previous meetings have taken place, we are now at the beginning of the first mediation meeting.

Plenary?

As a matter of principle the first meeting is a plenary meeting, except for those American mediators who never bring the parties to a joint meeting. They convene them on the same day at the same hour at their offices, but they put them in different rooms and these mediators shuttle between the rooms.

I must say that I am shocked by this way of proceeding. It prevents the parties from explaining themselves to each other. The advantage of mediation is to allow free speech, whereas in litigation the consequences of each word must be considered before saying it, and it is better that the parties not speak to avoid the risk of saying things that could be detrimental.

This free speech is not always beneficial, as it does not always contribute to the construction of an agreement. It is often a time of confrontation between the parties. But even in this case it can be useful. As we will see, this liberation of the speech often allows the parties to experience an emotional relief and then to start again in a more positive discussion.

Because they cannot meet, parties can also not share what they liked and appreciated in their relationship. They cannot exchange anything positive. Refusing plenary is like locking the parties inside the dispute, which they are supposed to exit.

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It seems to me that starting in caucus is very frustrating for the parties and makes them lose opportunities of mutual understanding and possibly reconciliation.

The Lawyers

I am often asked if the lawyers will participate in the mediation.

Some mediators try to exclude them. It is a big mistake for several reasons.

First by excluding the lawyers we give them a good reason to be against mediation. If we want lawyers to favour mediation, they must have experienced it, they must play a role and bring value to the process.

Then the parties need their lawyers to play two roles.

Lawyers bring moral support to their clients. Mediation is often presented as an idyllic process but it is also an ordeal for the parties, as they will be destabilized in their positions but also possibly in their beliefs and values. When you must live through such moments, you need somebody to support you.

Then, of course, the lawyers must play their role of legal assistance in the evaluation of risks, the creation of options and the drafting of the agreement.

There are of course bad lawyers who will try to sabotage the mediation and will also possibly make it last to make more fees. But those cases are rare and lawyers are, most of the time, extremely useful to the process.

Introducing the Participants: Status, Affiliation and Role

The first plenary session is crucial. It will set the pace and the atmosphere of the whole mediation. Each mediator has a precise scenario to lead it and to obtain all the desired effects.

The first minutes of mediation will be dedicated to the introduction of the participants. The introduction plays a very important role in the creation of positive emotions because they offer opportunities to create affiliation and to get information on the status.

Of course, in many mediations people know each other. But in many other ones, they do not. At least the lawyers are not known. People who are at the origin of the dispute are not always present and other company or insurance representatives often replace them.

Introducing yourself doesn’t mean mumbling your name. I ask that each one clearly states his or her name and I check the pronunciation and possibly the spelling. I do read the business cards that are given to me. Being able to properly identify them is the minimum respect that is due to people.

As far as the titles of the participants are concerned, I try to discover what they mean in order to understand what is their expertise and authority in the matter. Sometimes I go as far as asking what is their initial education. This is often interesting as far as their sensitivity is concerned: an engineer, a lawyer and someone trained in a business school often see problems in different ways.

At this stage I will try to know if they were involved in the facts that gave rise to the mediation and how they identify with them or not.

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My goal is to understand their status, to acknowledge it and also, as far as possible, to create points of affiliation between them. If I find any, I will of course put some emphasis on them.

I will then briefly introduce myself. I usually explain that I was a lawyer for many years, that I have always favoured amicable solutions and that I left the profession to dedicate my time to mediation and training in mediation.

I will then try to create affiliation between the participants around the mediation itself. Here are some typical sentences.

“We are all here today to try and resolve your dispute. On my side, I will try to help you with techniques that I have learned, but the results essentially depend on you the parties. You and your lawyers will have to prove flexible and imaginative in order to be able to create a solution together. Your lawyers are here to help you. They have extensive experience in disputes and justice, which will allow them to inform you on your chances and risks. Their experience will also allow them to share with you the solutions they have already seen in their professional life and which will enrich your reflection. I therefore invite you to all work together to imagine the best possible solution to this dispute.”

Discussing the Rules: Engagement

If we have signed a contract or the appointment took place through a mediation centre, the parties are aware of the rules of mediation. Also during the preparation stage, I invite the lawyers and the parties to visit my website so that they can read about mediation if they are not familiar with it.

Nevertheless, in every case, I explain those rules for several reasons:

1. I want to be sure that everybody understands them properly and I want each participant to be able to ask questions if necessary.
2. All these rules are by default. They were created through practice as being the best to reach a result but they are not compulsory and even when they have been enacted, the law usually allows the parties to agree otherwise. I explain this to the parties and I invite them to tell me if these rules are acceptable to them or if they should be altered.
3. The parties will always end up saying yes to the (possibly modified) rules. This creates psychological engagement by the parties and their lawyers into the mediation process by having each rule approved by all the participants.

Here are some rules that should be offered at the beginning of the mediation and how I hope to create positive emotions through them.

1. Voluntary: Autonomy

The first idea is to remind them that the parties are here because they agreed to mediation either by a clause of a contract or following a suggestion by the judge or from their own initiative after the dispute started.

It sometimes happens that the parties explain that they could not really resist the judge’s suggestion and that they were only apparently in agreement or that they are in mediation because of the clause but that if there had not been such a clause they would not have come to mediation.

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Whatever they say gives me a good reason to tell them that they are all free to put an end to the process at any time. No one is compelled to agree or to participate in the process if they do not think it is appropriate. I only ask them to let me know if they do not feel good in the process so that I can do whatever may be needed to make everybody comfortable in the mediation.

They usually end up with a smile when I tell them that now that they are here and they have paid they should give it a try, even if there were not initially considering using mediation.

Obviously the autonomy given to the parties to leave the process at any moment creates a feeling of relief and positive emotion, as, in my experience, it has never happened that someone left because they did not want to proceed, even if they had first said that they felt compelled to go to mediation. Because they are allowed to leave, they stay.

2. Not a Judge: Autonomy

The second rule is that the mediator is not a judge. He has no power to impose a solution. The goal of the mediation is to help the parties create a solution to which they will agree. There will be no solution without a full and clear agreement.

I go further by explaining that my role as a facilitator and not an advisor and that, as a matter of principle, I will not give an opinion as to the solution they should adopt, unless they reach an impasse and they explicitly ask me to do so.

Nothing can come out at the mediation without their express consent.

This is again the acknowledgement of their autonomy, which is going to create positive emotion and engagement when each participant will have accepted the rule.

3. Confidentiality

Confidentiality has to be explained.

As we saw when we described Warren Knight’s initiative, confidentiality belongs to the essence of mediation. It is fundamental that the parties can speak freely and they can only do so if they are confident that it will not be repeated to the judge in case there is no agreement.

As a matter of principle, this is evident. In legal terms it is less. In countries where there is no legislation, confidentiality can only result from the parties’ agreement. Where there is legislation, it is often vague or insufficient. Without going into details the questions are: Who is bound by confidentiality? What is covered? Toward whom? Are there limits?

I suggest that all participants accept to be bound by confidentiality, that confidentiality will be limited to what is exchanged orally or in any other form all the needs of mediation (basically what is said and what is offered), that it will not cover the evidence, which is independent from the mediation, and that it will be toward anybody.

This rule is usually accepted as such. But it can be problematic when one of the parties is an organization and when its negotiators will have to report to their hierarchy or to their constituency before giving their final

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agreement. In such cases, we have to agree, possibly in writing, on a new definition of confidentiality.

4. Separate Meetings (Confidential)

And then explain that as far as the mediator has no authority to decide, it is not necessary to respect the principle of contradiction, which is fundamental in litigation. On the contrary, separate meetings may ease the reflection of each party and help them in the creation of a solution. I insist that I can suggest separate meetings and that the parties can too. I then ask the parties to agree that we can use separate meetings. This will increase their engagement. It will also reassure them and particularly the lawyers that joint meetings will be the default rule.

I make it clear that it is in the interest of mediation that these separate meetings remain confidential, which means that I will not repeat to a party what the other party told me in the separate meeting, unless I have received an express instruction to that effect.

Receiving an instruction is necessary. I cannot just receive an authorization. If I were to repeat what I would have been told with only an authorization, that would mean that I have implicitly been given the role of negotiator for one party with the other. This is totally contrary to the principle of the neutrality of the mediator. Obviously if one party feels that the mediator is negotiating with them (actually against them) on behalf of the other one, their trust will be immediately ruined and they will put an end to the mediation.

5. Politeness

Some mediators think that it is advisable it to remind people to speak politely, to not interrupt each other, to not use insults and so on.

I do not do it for the following reasons:

1. Most of the time it is useless. Even when people promise to remain polite, if they are rude, they will remain so and when their emotions will be strong, they will forget their promises.
2. It may sometimes be appropriate to forget politeness and politically correct language to let the emotions come out. The expression of emotions is essential and I would not like this rule to be an obstacle.
3. It is my duty to create an arena where the parties do not need to be rude to express themselves. Politeness must be the result of the good work of the mediator and not a constraint on the parties.

6. Code of Conduct

Some mediators remind the parties of the code of conduct applicable to mediators we are going to describe in more details below.

I rarely do it. I do it only when it may be useful, particularly when one of the lawyers is a friend of mine or when there is some circumstance that demands it. For instance, it once happened that one party suggested my name, while the other party demanded that the mediator be appointed by the court. The court appointed me, and the second party had legitimate questions on this surprising circumstance.

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The European commission adopted a code of conduct for mediators, which actually extended beyond the European Union and the principles of which are universally accepted. This is what I refer to.

Here are the main rules it contains.

It means that the mediator should not have any dependence link one way or the other with one of the parties or their lawyers.

A lawyer/mediator cannot take a case in which one of his partners will assist a party. A mediator cannot take a case in which his family or one of his employees or employer is a party.

This rule is relative. It happens the parties wish that the mediator be someone with whom they have dependent links. For instance, lawyers may wish the president of the Bar to be their mediator though he was elected by them and he has a disciplinary authority over them. This is the case in numerous professions.

The existence of links do not compel the mediator to refuse appointment. It compels him to inform the parties about these links and they will then decide to confirm his appointment or not.

Neutrality means that the outcome of the mediation should not affect the interests of the mediator.

Most of the time this role is not properly understood and it is confused with impartiality. The lack of neutrality will probably end up with partiality but partiality may have other causes than the absence of neutrality: Sharing the same beliefs, a legal opinion, seduction or repulsion.

Neutrality is a concept that must also take into account that may happen during the mediation: I cannot accept a mediation aimed at finding who will be the owner of the apartment next door to mine, even if I do not know the parties, because during mediation I may find an interest in having one rather than the other as a neighbour. That would be a loss of neutrality.

Neutrality is a strict rule. As soon as a mediator believes there might be a threat to his neutrality before or during the course of the mediation, he must refuse the mission.

Impartiality is a rule regarding the behaviour of the mediator during the mediation. It simply says that the mediator should not act in favour of one party rather than of the other one.

This is easy to say but far more difficult to put in practice for several reasons:

Impartiality as the mediator practices it is different from what the parties perceive. You may behave in a way, which is in your opinion totally and perfectly impartial, and it may happen that a party feels that you are acting in their favour or in favour of the other one. You should then not only have a perfectly impartial behaviour but also make sure that your behaviour does seem impartial. As soon as something may raise a question, you should rebalance the situation and explain your behaviour to the other party.

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Some parties are more talkative than others. They take a lot of time, whereas the other one can be concise. After a while the second party will feel that the first one is getting all the attention and that you are letting them go on. You should manage that dialogue by reformulation from time to time in order to ensure the full expression of each party. They will then not feel the need to make long speeches. You should also make sure at any point of time that the less talkative party has express everything they had to say.

When you are in the separate meeting, a party may need much more time than another one to evolve and express themselves. In the meantime the other party is waiting and after a while starts wondering what you and the first party are doing in your separate room. You must periodically come and see the second party to make them understand that you are not forgetting them and that you are permanently working at trying to find an agreement but that the other party needs time to move toward a solution.

In the course of the mediation, phenomena of sympathy and antipathy may arise, which will make you wish that the point of view of one party will prevail over the other ones. This may be due to your personal values or to the fact that one party is more cooperative in mediation, etc. It will then become very difficult for you to hide your feelings.

7. The Process

After having explained mediation rules and having obtained the agreement of each participant on each of the rules, you need to explain how you intend to conduct the mediation. It does not necessarily imply long explanations but one or both the parties may really wonder what is going to happen during this mediation. They ask themselves what you are going to do to them. By revealing your intentions you reassure them and help them follow you in the later stages.

We shall see that there are unavoidable stages and numerous ways to go through them.

Each mediator should then build his speech depending on his personal method.

CONCLUSION ON THE INTRODUCTION

Each phase of the introduction is most important because in a few minutes it is going to create the atmosphere of the mediation.

It is the moment where the participants or some of them are going to get acquainted, feel respected and appreciated or not.

It is the moment where the mediator proves his professional ability by his description of his methods and rules.

It is the moment where the mediator is going to create confidence with the parties in the mediation process if they never experienced it, and in his own ability to properly conduct this process in all cases.

This is a moment when the mediator will engage the parties in the mediation process by his questions on the rules.

In trainings, we spend a lot of time coaching the participants to conduct this phase with the necessary assurance, preciseness and authority, without becoming boring.

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This introduction, except when the rule is discussed and possibly amended, should not last more than five minutes. These are five crucial minutes.

If this introduction is successful, the mediator has won the confidence of the parties in his person and his professional ability.

Otherwise, he will probably have difficulties conducting his mediation because the parties will not understand what he can contribute.

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The Stages of Mediation

The Beginning of the Mediation

At the beginning, there is a dispute. At the end, there should be an agreement. In between what should there be?

Just like in negotiation, it is advisable to go through different stages. We saw how difficult it is to master the process when we are personally implicated.

One of my friends used to say that, to be a good mediator, you should be able to step down from your bicycle to watch yourself pedalling. The expression is funny but far from absurd.

The role of the mediator will be to have the parties structure the negotiation by putting in place the various steps and to have the parties stick to these stages to create a collaborative dynamic toward a solution.

Nevertheless the practices of mediators are quite diverse. This is due to cultural differences and to personal techniques. But like in music there are variations on a theme.

I intend to describe the principal themes and their variations.

THE FACTS

The party should know the facts and the mediator may know them through the file. So why start with a description of the facts?

We saw the answer when we spoke about perceptions.

Each party knows the facts through their perceptions. They do not know how the other party perceives the facts. Even if a party believes they know the perception of the other one, you better check that they actually understand it.

In practice it often happens that the parties’ representatives have a very poor knowledge of the facts.

From the mediator’s point of view, in some way, the real facts do not really matter. His preoccupation is not to know the facts, but to allow the parties to share their reciprocal perceptions.

A verbal explanation, where the words (the information) will be expressed with an intonation (the emotion) and some body language (the identity) will allow the parties to understand each other much deeper than any file. The role of the mediator will be to help them, particularly though empathic reformulation.

This is when the emotional needs will be revealed, which may make the dialogue more difficult (relational problem) and when information problems may arise.

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THE DISCOVERY OF THE INTERESTS

When studying principled negotiation, we discovered that interests were hiding behind the positions and that one should bring the interests to the fore to negotiate on the interests rather than on the positions.

So we have to discover the interest, which can be done while the facts and perceptions have been revealed. With this in mind the mediator will use the questioning techniques that we described. You will always write these interests on the flipchart.

THE CREATION OF OPTIONS

Some authors, particularly in England, in my view, incorrectly call this stage “the negotiation”. Actually those who use this vocabulary are the ones who consider “negotiation” as pure “bargaining” and will only look for distributive solutions.

We saw how difficult it was to be creative in negotiation when the stress of the confrontation tends to ensnare us in our positions.

The role of the mediator will be to help the parties think outside the box of pure distribution and bargaining.

He will help the parties imagine solutions that had not appeared before the mediation whenever possible, and he will use all the techniques we described above to encourage creativity.

THE ADOPTION OF A SOLUTION

The mediator will then have to help the parties choose the best option (and not necessarily the first, which appears) to make it their solution. It can take some time to measure the degree of satisfaction of the mutual interests.

The mediator will then make sure that all the disputed points have been covered and he will organize the drafting and signature of the agreement.

We shall now see how to conduct the mediation through these various stages.

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The Facts

THE CONFRONTATIONAL METHOD

I am speaking about a “confrontational” method. No one teaches this method under such a name. But most mediators are taught to use this confrontational way to start the mediation. I am using this name to show the opposition between this way of starting the mediation and what I call the Resolvers method, which tries to avoid any confrontation.

It consists of creating a confrontation between the parties at the beginning of the mediation. This can be done in several more or less violent manners:

• As an introduction, the lawyers may read an opening statement. The statements usually look very much like their writs in court. They will usually be built around the question of who is right and who is wrong.
• Each party may either make an opening statement or describe their perception of the case.

Of course, the two statements will be very different. The parties will have expressed their different perceptions of things and the facts themselves may hardly be recognizable from one to the other.

One can expect violent outbursts of emotion, which will certainly make the process more difficult. The perception of the other party will be felt as a refusal to accept one’s own emotion. And the same will apply to the impartiality of the mediator. The predominant feeling will be “No one understands me.”

All the participants in the mediation are going to endure a very difficult period due to multiple contradictions and violent negative emotions.

This phase will hopefully end with an “agreement on the disagreements”. This means that, at this stage, the parties will not be able to agree on anything except the list of their disagreements and the mediator will be able to write down this list of points to be resolved.

The supporters of this method consider that the agreement on the disagreement is a crucial point of the process because, for the first time in a long time, parties will agree on something. The mediator will try to capitalize on this agreement through sentences such as: “ I am happy to notice that you at least agree on the list of your disagreements. This is a first agreement. It allows us to pose the problem and to identify the points to be resolved… We can now start working on the resolution.” He will then pass to the next stage.

This is certainly a positive point. At the beginning of the conversation, the ideas of the parties were confused. They disagreed on everything. Having clearly posed the problem and having lead them to agree on the list of their disagreements is a way to put them in a different mind-set for the rest of

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the mediation: one forgets all and moves toward resolution. The parties can rely on something relatively stable to take off toward solutions.

Of course, the mediator will write this list on the flip chart so that they will all be able to check that everything has been dealt with and that nothing has been forgotten.

Advantages of the Confrontational Method

This method starts with creating confrontation between the parties on the facts and on their emotions.

According to the supporters of this method it allows:

• To agree on the disagreements and to then move on to the resolution.
• It also allows the parties to vent their emotions and those supporters believe that after this venting, the emotions will calm down and the parties will be ready to negotiate in a peaceful way.

Disadvantages of the Confrontational Method

When the parties come to mediation, they know that it will be at least about making concessions. With this method, as soon as the mediation starts, the parties are sent back to their positions whereas the goal of mediation is to take them away from them, to let their interests show up and to bring them to negotiate on those interests. In other words, this method starts by doing exactly the opposite of what you intend to do throughout the process. From the very beginning, the obstacle is placed very high.

To avoid this problem, my friend Claude Amar explains: “When I take the points of disagreement on the flipchart, I ask each party about the link between this point and their interests and needs. This allows me to have, on the same page of the flipchart, the points of disagreements to be resolved and the written expression of interests and needs of both parties.”

This method starts by generating negative emotions with the parties whereas the whole idea is to create positive emotions. Once again, one acts to the opposite of what one wishes and makes the exercise even more difficult. It discourages the parties from listening to each other, as each party has to endure the monologue of the other who usually says things that are unacceptable to them. Even if they can then express themselves, they will feel a lot of negative emotions and the second party to speak will be exasperated and will use violent expressions. Just what you didn’t want to happen!

This method is based on the wrong concept that there would be an objective reality that the parties deny through their twisted perceptions, and that the mediator it is going to reveal. We saw earlier in this book that there is no information without emotion. Information always reaches us within a perception (information + emotion). It can then never be objective. Our goal is not to eliminate the perceptions but, on the contrary, to allow the parties to reconcile their perceptions by making them understood by the other party. Once again this message goes against what it is aiming to achieve.

The strength of negative emotions will necessarily lead to interruptions, personal attacks, shouting and insults. This type of situation is very difficult

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to handle and there is a real risk that the mediation would stop there because one of the participants would have left the room.

Such is my opinion. But this method is used by a large number of mediators.

THE RESOLVERS METHOD: THE CHRONOLOGY

I created this method, which is sometimes called the Resolvers method. It is based on starting with positive emotions.

I shall take particular care to conduct the introduction as described above to get positive emotions out of engagement, affiliation, status, autonomy and role.

Then we will approach the facts in a very different way: I will ask the parties to tell me their story together and chronologically.

The Conduct of the Facts Phase

Thus instead of the confrontation of two monologues I create collaboration between both parties in order to create together the description of their history for me (or so they believe). Here is a possible dialogue:

Mediator: Can you tell me how you two met?

A: It was at the Frankfurt tradeshow 10 years ago.

B: Are you sure it was Frankfurt? Wasn’t it Milan?

A: Oh yes! I am quite sure because I remember that I started to speak to you in German and considering the level of my German, I felt quite ridiculous. It was a real relief when I realized that you spoke English….

Mediator: (to A) So you went to meet Mr B at his booth?

A: Yes indeed. I knew the brand but I never really got interested in their product because, with their reputation of high quality, I thought that their prices would be too high for me. But as I had some time to lose, I went to their booth out of mere curiosity.

Mediator: And then what happened?

A: I started to speak with Mr B. He quickly told me about the prices and I was quite astonished because they were not more expensive than their competitors. So I wondered if their quality was really what it was supposed to be. We had a pretty long conversation on this topic and I was convinced to try their product when they showed me the results of their reliability tests.

Mediator: (to B) Is this what you remember?

B: Yes! Quite so! I was impressed by the level of Mr A’s questions and by his knowledge of the market. I was of course a little disappointed that he had not known our products better, though we thought we were indispensable but the important thing was that I convinced him and he placed an order.

A: You’re going a little too fast. At this stage I was not convinced yet. In spite of your strong arguments, I wished to make my own opinion and to try the product by myself. The order I placed was on one unit only and I wanted to use it for this trial.

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Of course, the test will have been positive and a commercial relationship will have developed. As we will move into the story, difficulties will appear. They will be explored exactly in the same way. Here is a possible dialogue:

A: Until last year, everything was fine. Our business was growing every year. I was happy with the products. I was paying on time and I never discussed the prices. I should have been considered a good client. Starting last year, it all became a mess. Everything accumulated: delayed deliveries, wrong packaging, defective products, wrong invoicing, etc. I did not have other suppliers for these products. So I tried to cope with these difficulties. But after a while it became unbearable and I terminated the contract.

Mediator: (to A) If I understand you properly, there was some time between the first difficulties and the termination?

A: Yes! I have been very patient!

Mediator: (to A) Could you tell me more? I would like to understand how things went: what were the first difficulties? How did you react? What did you tell other party? Etc.

A: We should ask my lawyer. Everything is in the file. But as far as I remember, at the end of February there was a delayed delivery. It was only by a few days and was inconsequential. In March, there was a two-week delay. That caused big problems because I had to stop my production and I had to struggle to not incur penalties with my clients. Again for more details, we would have to go see the file but I would say that until the end of the year deliveries were not on time. And then there was the packaging problem, which appeared a little later.

Mediator: (to A) You just described the delays in deliveries. Can you tell me how B reacted when you called them about it?

A: At the beginning I did not discuss it with them. I tried to manage.

Mediator: (to A) Why?

A: I don’t know but let’s say that I must have been busy dealing with the consequences of the delay and as we had a nice relationship I didn’t want to damage it.

Mediator: (to B) What do you think of what A just said? Were there actually all these problems? When you started delivering late what did you do?

B: I don’t precisely remember what we did on the occasion of the first late deliveries. Actually I don’t remember that we discussed the difficulties before the summer. The reality is that we had our series of difficult events happening in our company: the unexpected resignation of our production manager, which took place at the same time as we were changing our data system. And this change did not go well. We lost a lot of data. We knew there were problems everywhere but we were not able to know who had which problem. Then we were not able to fix those problems. I must say that Mr A was particularly patient and I am grateful for that. Other clients and suppliers were not so tolerant. The pressure they were putting on us was just making the situation worse. The most

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terrible time was when the employees went on strike due to delayed payments of their salaries and disorganization of their work.

A: It’s really a pity that you did not discuss this with me. We could certainly have managed the crisis in another way. What happened to you can happen to anyone. One can understand but we need at least to be informed. I understand the problems you experienced, but today I mainly blame you for not having informed me of the causes to help me take the necessary measures on my side.

In this kind of dialogue, a number of psychological phenomena occur, which are very positive for the dynamics of the mediation and the search of a solution to the dispute:

• When people speak about the beginning of the relationship, they almost always speak about a happy period. The parties decided to work together because they had good opinions of each other. In a way, they loved each other. They speak about good memories, which generate positive emotion: “They were good people at the time…”
• In the construction of this history, parties do not fight, they collaborate. This had not happened for a while. This gives energy back to the relationship. They realize that even if the stopped working together, they are still able to do so in the mediation.
• This collaboration happens because of the mediation. The mediation instils positive energy in their relationship, which brings them to overcome their opposition and to work together to help the mediator, so they believe, understand their story. Actually the process allows them to discover their perceptions and to start understanding each other. They then start feeling positively about the process.
• The process also separates the people from the problem, as Fisher’s and Ury’s principled negotiation recommends. Actually we are not in the confrontation of two versions. We are in the creation of a common story. I sometimes have the feeling that the parties are building something in the middle of the table that we will then have to work with. This story will be there in front of their eyes. We will have to work on this story and not on the one the parties had imagined. This distance, which is almost physically felt, between the story and each of the parties brings them to treat the problem as an independent object. This at least reduces negative feelings.
• This dialogue also makes the mediator discover the interests as they appear in the story. Thus at the end of the first dialogue, the mediator would be able to state some interests of party A: “I believe that you had two main preoccupations: reliability and price. Am I right?”. When difficulties are discussed, interests will appear but no more as desires but on the contrary as frustrations. At the end of the second dialogue, the mediators can describe the frustrations/interests of party A: “Should I understand that your problem was more the disorganization of your business than the problems themselves?”

We saw the difficulty there was to have the parties disclose their interests in the previous method. This one significantly facilitates this because the interests will appear as the story unfolds. But at the end of the story, we will

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still have to identify the interests for the future, which may be quite different from those of the past.

In a case like the one we just described, we will not necessarily know at the end of the story how the parties envisage the future. Namely, can they still collaborate?

The reflection on the future is certainly the easiest way to make the interests appear. If we have been able to bring the parties to collaborate and understand the difficulties they both faced in their relationship, it will become rather easy to have them express their expectations for the end of the mediation in other terms than the simple litigation positions and to bring them to consider actions that will be useful for them and acceptable for the other party.

So instead of starting from positions and then have the parties admit their interests at the end of a painful process, you will have made them naturally emerge with positive emotion the interest they defended in the past and they will be more ready to disclose their interests for the future.

This requires a very active role of the mediator at this stage. Pretending he is trying to better understand, he will try to extract all the possible information that is necessary for a full mutual understanding between the parties. He will particularly invite them to express their emotions in a form close to non-violent communication. In the previous method, you would have probably heard: “and these incompetents were still not delivering!”. In the Resolvers method, you would more likely hear: “on March 15, they still had not delivered and I was wondering how people, who have always been responsive, could not deliver and not even call me.”

This method is all the more efficient when there is an intense relation between the parties.

But it can also apply when there is no relation between the parties. Here is an example.

A clothes designer was complaining that a brand well known for cheap trendy clothes had copied one of his jackets. The copy was so obvious that he could not understand how such a large company could have done something so shameless. He did not have much information to determine the amount of his damage and particularly because he did not know how many such jackets had been produced. There was clearly no common history between the parties.

I started by asking the designer to tell me his personal story and the story of his brand. He explained the meaning of this model in his creation. On the other hand, I asked the representative of the large company to explain how her company works and how it could be possible that to pieces of clothing could look so much alike without it being due to an exact copy.

The designer explained that this design was particularly important for him. Actually it was not simply the design of a piece of clothing, it was not only a line, it was not only the symbol of his brand, it was for him the essence of his creation and of his maison de couture itself. To convince us, he offered to undress in the middle of the conference room and show us that he had the design of this jacket tattooed on his back.

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The representative of the company explained how the company was created and how a company of this type develops in producing only small series for the world market and creating about 10,000 different lines a year, trying to remain in the streamline of fashion.

Both explanations resulted in mutual respect, in mutual understanding of difficulties and in a very quick agreement whereas we had seemed to be facing an insurmountable difficulty: the confrontation of the exasperated emotionality of the young designer and the industrial logic of a major brand.

The End of the Facts Phase

At the end of this phase the emotions will have been expressed without violence, mainly as memories that means with a distance as they appeared with the happy and unhappy events that unfolded along the history of the parties. The other parties will have heard each other’s emotions. Even if the one party considers that the other’s emotions are unjustified or exaggerated, they will only have to acknowledge their existence and consider them as part of the debate.

Gradually, persistent emotions will have been taken care of. There will rarely be any local negative emotions. There will often be local positive emotions.

All this will have happened naturally. On the occasion of the description of an event, the emotion will be revealed. The mediator will immediately do what is necessary to take care of this emotion. The relational problem will then be able to resolve with the flow instead of creating blockages in the resolution process.

The active questioning by the mediator will also make information problems appear without making parties lose face. The mediator has the right to be ignorant and he can then ask questions. If both parties have the answer, they will give it together. If one ignores it, it will be an opportunity to learn without having to tell me that they did not know. If parties disagree, it will be an opportunity for them to clarify the question.

In the same way, through the expression of emotions, interests will have appeared. Parties will express the positive emotions they felt at the beginning of the relationship and the negative emotions that they felt when this relationship deteriorated. They will have shown how their interests were satisfied or not satisfied. The mediator will be able to take note of those interests at each stage of the story. At the end of the process, the mediator will only have to ask the parties what are the interests that still survive and what are those, which disappeared to be able to move to the stage of options.

In other words this method that allows the following points to be treated at the same time:

• Facts,
• Emotions,
• Information problems,
• Interests.

All this takes place in a far more relaxed atmosphere than when we are in a confrontational process. The process does not create negative emotions. It creates and recalls positive emotions. It takes the negative emotions of the

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past into account and, as far as possible, treats them to remove the negative energy out of them or to, at least, reduce it.

This far more peaceful atmosphere will of course be favourable to the working out the options and more generally in the resolution of the problem.

The Method

To reach this quadruple result, the mediator will have to use all the techniques that we previously described:

• He will use an empathic and active listening to acknowledge the emotions and have them taken into account by the other party.
• By the same technique he will allow each party to disclose their interests.
• He will use non-violent communication to allow the parties to question themselves, better explain their point of view and go even deeper in their reflection. He will bring them to use non-violent communication (without knowing) to express their emotions and their needs.
• He will use transactional analysis to better understand how the parties interact at the different stages of mediation.

The main difference between this method and the confrontational method resides in the understanding of the fact that persistent emotions will be not considered as difficulties but as components of the needs to be satisfied just as well as the interests. One of the mediator’s duties will be to take care of them before moving towards options and solutions and possibly even before discussing interests as such.

The other characteristic is linked to the efforts made to allow the expression of emotions while minimizing negative energy of negative emotions and trying to create positive energy by reinforcing and creating positive emotions.

This method also tends to avoid having to go through all the stages of grief. It wishes to avoid all the heartbreaks of the beginning and to immediately place the parties on an ascending curve. It does not start by having them state their differences but by helping them understand each other, so that they immediately can understand that there is another future than failure and that they feel able to build this future.

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The Discovery of the Interests

In the confrontational method, after discovering the facts, the mediator will have to break the positions like a nutshell to discover the interests hiding inside.

On the contrary, if you follow the Resolvers method, the original needs have already been revealed. You just have to check that they have been taken note of, that they have been properly formulated and finally to discover the present needs. No need to further discuss these points, which have been developed in the previous chapter.

We will concentrate on the discovery of the interests in the case where the facts were discovered through the confrontational method.

At the end of the confrontational discovery of the facts, the parties agreed on their disagreements, which were written on the flip chart by the mediator. The parties described their positions. We know that the confrontation of positions had little chance to reach a solution and particularly a solution to the benefit of both parties. We need to move toward an interests based negotiation/mediation.

The mediator will then have to have these interests reveal themselves. It is possible that the discussion on facts and disagreements has already given him some indications, but in most cases the parties will have flawlessly affirmed their positions.

The exercise will then be difficult because you will be trying to make the parties admit that they did not say the truth and that the problem they described was not the real problem. They will of course resist in fear of losing face.

The mediator will also be confronted with the strong negative emotions that the first phase will have generated.

The mediator will then have to create a distance between the parties and their emotions and have them describe the interests that they have tried to hide since the beginning of the mediation. Therefore this task will probably have to be conducted in private meetings.

This research of the interests will also go through several steps.

STEP 1: DISTANCING

It is essential to separate people from the problem, as Fisher and Ury said, this means making them think of something other than their part in the confrontation. The parties must see the problem as something separate from them and not as a fight in which they are engaged.

A classic technique consists of asking the parties what they think just happened. This is different from “What do you think of what you just

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heard?”, such a question would just throw the parties back into the confrontation.

The answers to these questions are always surprising. They go from totally negative (“Nothing changed. They are still asking for 100,000.”), to the most positive (“For the first time, I felt heard and I am grateful to you for that.”), including long unexpected speeches. The important thing is that the mediator be successful in concentrating the attention of the parties on the process rather than on their position or the position of the other party.

When this distance will have been created, two situations may arise: The general feeling is positive or not. If it is positive, the mediator can move to the interests. If it is not, he will have to understand the negative emotions and work on them.

Unfortunately many mediators are afraid of emotions and try to avoid them by logic: “This is not so bad. Don’t be nervous. Think positively. This is not what is important.” Etc.

As we said, this may help on “local” emotions deriving from what happened in the mediation itself. Active empathic listening and an invitation to think about the reasons why this created such negative emotions will be far more efficient and will allow treating both local and persistent emotions.

When it will be about persisting emotions resulting from ancient facts, the mediator may have to go further and bring the parties to enter into introspection, which may be long, painful and sometimes impossible. We are rarely conscious of the reasons why we feel such emotions. They come from a past that we may have successfully forgotten.

When the emotion and its cause have been identified, you still have to determine how to treat them. You may want to return in plenary to discuss them before discussing the interests. In the best of cases, we can reserve this treatment for the next plenary and immediately start thinking about the interests, as far as there are still interests beyond the emotional needs that have just been treated.

STEP 2: THE DISCOVERY OF INTERESTS

Once the parties have reached a sufficiently positive emotional state (and not “when we have gotten rid of their emotions”) to think about something else than their emotional frustrations, the mediator will start to make them think about their interests.

We have often said that the parties are not always clearly conscious of their interests. The dispute was born in the past. It was born out of frustration at the time. On the day of the mediation, the situation can have seriously changed. For instance: You had a house built and the contractor did not work well. You introduced a claim in court and you could not live in the house. The mediation takes place two years later. For two years you have been discussing with your lawyer about what you can obtain considering the standards of the court, i.e. the cost of the repair works. You attention is focused on this problem. You have not even thought that this house might not be finished and you would not be “condemned” to live in it. In reality, today you are living elsewhere and you are not interested in this house anymore. You would rather be reimbursed what you invested in the house and make a financial investment.

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The way from one vision to the other may be long.

The mediator will often quickly guess what your interests could be. He may be tempted to impose his vision. Between the perception of the mediator and those of the parties, there are often considerable differences linked to each person’s identity. The positive emotion resulting from the satisfaction of some needs does not result from reason but from the identity of each individual. The interests are sometimes not much more reasonable than the emotional needs.

In this phase, the mediator will then have to prove very imaginative in order to find the open questions, which will allow the parties to reconsider their interests. He will also have to be patient and give them time to evolve at the pace of their personalities and depending on the depth of their emotions.

Managing Time in this Phase

Obviously the management of emotions at the end of a possibly violent confrontation phase and the discovery of the interests may take quite some time.

This is a problem as far as this process is generally conducted in separate meetings, which means that when the mediator is working with one party, the other party is waiting. Waiting often generates new frustrations. Then a waiting party (individual or team) may reinforce their position. If there is someone on the team, who is opposed to any agreement, he will be at ease to destroy the mediator’s work while he is busy in the other room.

The mediator is then facing two contradictory demands: Allow each party to have time to think and not leave the other party alone for too long.

A co-mediation (mediation with two mediators) is a way to overcome this obstacle. Each mediator can see a party.

The exercise is difficult and perilous. The risks of misunderstandings, of tension and of seeing new negative emotions appear are real and serious.

Technique to Reveal the Interests

Empathic active listening and non-violent communication will be the mediators best tools as well as the specific questions described above.

If the techniques are the same, the results are very different.

Using empathetic active listening in negotiation is extremely difficult. The tension of the confrontation hardly allows taking the necessary distance. The idea of going out to stand in the other party’s shoes and think about their emotions seems weird. Even when you understood it was advisable to do so, even when you teach it… it is very difficult to do.

And the party who is so carefully listened to may be astonished and resist. This empathic interest from the “adversary” that they are not prepared for, may make them careful and resistant. They may not spontaneously answer or not sincerely and even not at all.

On the contrary, this demeanour is easy for the mediator, who is not part of the confrontation. It is his fundamental function to listen and to do it in depth. The mediator will then be in a position to listen empathically and actively without difficulty.

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His listening will be welcomed by the parties, who for a long time have not been able to have the other party listen to them. Being finally listened to will be felt as a blessing and the answer will usually be rich.

And if this is done in a plenary rather than in separate meetings, they will feel heard not only by the mediator but also by the other party.

The questions of the mediator on the interests will be much better received than those of the other party. They will also receive more sincere and more complete answers.

What to Do with the Mediator’s Discoveries?

If the mediator discovered the emotions and the interests in separate meetings, as a matter of principle, the separate meetings are confidential. He then cannot do anything with them unless the party who talked to him, instructed him to go tell the other party what he heard.

The mediator may also suggest that his party can go and speak to the other one.

Each case is specific and there is no formal answer to the question of the choice of having the party or the mediator speak to the other party. But some mediators prefer one or the other. I tend to adapt.

One of the ways to think about it is to ask what will be better received. Of course, a third party can rarely transmit emotions.

Not Doing Anything with Information Obtained in Separate Meetings

Most Anglo-Saxon mediators will not convene a plenary and will continue in separate meetings.

They will then not allow emotions to play a role in the mediation. They believe that the other party should not hear those negative emotions because it may cause negative emotions with them too.

The emotions and interests discovered at this stage will then not be disclosed to the other party. The mediator will only use them to evaluate the acceptability of the propositions made or to have the parties invent some options. For instance, if he knows that one party urgently needs to repair the roof of their house and that they feel humiliated to have their children live in an unhealthy house, he will only try and obtain amounts that will cover the repairs without saying the reason behind this. When he will have obtain such a proposal, he will put pressure on the first party to have the offer accepted by them, even if more could be obtained in court.

It is always difficult to speak about someone else’s emotions. If the mediator would say “Mr A is very cross.” He would probably get an answer like: “Tell him to cool down.” And no progress would have been achieved.

It will probably be easier for the mediator to inform one party of the interests of the party with whom he just met. But if he then explained that the other party, who lied or exaggerated, fooled him, there will be nothing to do. A direct dialogue will be needed.

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In other words, the information about emotions and interests will usually not be well received or will contain very little positive emotion to move on with the mediation.

This method is then rarely used.

Taking the emotions into account is indispensable to calming negative emotions and having positive ones appear. In my view, this can only be done through dialogue in a joint session.

If the mediator believes so, he will still have to see how to pass the information, which raises three questions:

• How to convince the party who has the information to deliver it and to do so in plenary?
• How to tell the other party?
• How to make sure that it will be received?

When one party has described their interests, the mediator has to ask if the mediation can go on positively without letting the other one know about those interests. Once the party has admitted that communication of the information to the other party is necessary, the mediator will ask how to do it and particularly if it should be brought by the mediator or by the party. Of course, in most of the cases, it will be advisable to have the party do it. But there may be exceptions.

If the party is convinced that they should give the information themselves, the mediator must help them to find a way to do it. The experience of the mediator and the depth of his understanding of the possible emotional problems of the party and of their possible reluctance to speak, will be a great help to find the appropriate way.

Here are some ways of doing it:

• Simple affirmation;
• Questions on the situation: “What do you think I felt when…”, “In your opinion what would satisfy me?”, “What do you believe Mr X thinks of our problem?”
• Asking for advice: “What would you do in my place?”
• Description of the problem: “I have a wife, three children and my old mother at home…”
• Explanation: “”I am going to tell you why, in my opinion, we ended up where we are.”
• Etc.

THE MEDIATOR AND HIS FLIP CHART

We have already seen how important the flip chart is. It enables you to make sure that all the elements have been written down and that they will be treated one after the other. It also turns the eyes of the parties in the same direction rather than in confrontation.

We realized that this was difficult to organize in negotiation because the flip chart and the pen represent symbols of authority.

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On the contrary, in mediation, the mediator will be in charge of taking notes on the flip chart. Everyone accepts that this is one of the services he should render to the parties and at the same time that the authority it may represent is well accepted. There is then no conflict between the parties around the flip chart. By his function as well as by his position at the flip chart, he is the one who helps them take some distance from the problem and work on it together.

Most mediators use the flip chart. All should. The flip chart is the mediator’s ultimate weapon. Its power is so great to reassure the parties, to make them confident and to have them concentrate on the idea of a positive outcome of the process that it would be a mistake for a mediator to not use it.

In some mediator assessment exams, those who do not use it are eliminated.

A mediator without a flip chart is like a soldier without weapons.

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The Options

The creation of options is certainly one of the most difficult phases of mediation.

So far the parties have mostly concentrated on the past. Indeed questions about interests may have brought them to think about the future but it remains in terms of long-term dreams.

We now have to make several shifts:

• Concentrate on the future;
• Move from what we wish to what we want (from needs to desires);
• Take the other parties needs and desires into account.

This radical change in behaviour is very difficult for parties who are afraid of letting go from the positions in which they found some comfort, even if the existence of the conflict is painful to them. One is afraid of giving in too much. One fears to be deceived. One fears to do something wrong, etc.

Such inhibitions not only prevent audacious offers but also make entering into the options phase problematic.

We saw that looking for options implied fearless brainstorming where all ideas could be offered and that the suggestion of an idea was not binding in any way on the one who had offered it. This “letting go” behaviour is totally the opposite of our usual behaviour in negotiation. We also fear that the other party will not understand things the same way and that the options we will suggest may be received as binding offers.

Parties are then hesitant to invent options.

The mediator will have a considerable role to help them.

Once again the work can be done in plenary or in separate meetings.

LOOKING FOR OPTIONS IN SEPARATE SESSIONS

We saw a number of means to spark off creativity.

These are exactly the means the mediator will use to bring the parties to imagine options.

This exercise is a challenge in itself as the mediator will be tempted to invent options by himself and to offer them to the parties.

He must resist this temptation. The solutions he would offer would result from his understanding of things and not of the interests and sensitivities of the parties. The mediator should only ask open questions, which will induce the parties to imagine possible solutions.

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This requires a great deal of humility on the part of the mediator. This humility, this ability to let others’ sensitivity prevail over his own, is an indispensable quality of a mediator. Someone, who is not able to act this way cannot be a good mediator. The parties may reach an agreement but the level of satisfaction they will receive will probably be limited and the sustainability of the agreements may become a problem. When the mediators gave them an opportunity to invent together a solution they had not thought of, their satisfaction is greater as well as their enthusiasm for the process.

There is an exception to this principle. It happens that the parties are blindfolded by their dispute and cannot see an obvious solution. This was the case in the matter of the sharing of the expenses of common space as well an in the music hall matter. When this happens, the mediator has an obligation to open their eyes through questions that will make them see the evidence.

The mediator’s questions will remain open questions, even if they in fact can only be answered one way. Instead of: “Why don’t you take the key to open the door?”, say “How could you open the door? — Are you suggesting that I should take the key? — That’s a possibility.”

Sharing the Options

Once options will have been invented in separate meetings, they will not be a common result.

They will look like mutual proposals.

A proposal is always received as a pressure: “They want to force me to act this way. It’s in his interest; or that it is probably against mine.” Except in exceptional cases, a proposal automatically generates resistance. People will at least try to obtain its improvement.

The only way to pass proposals from one party to the other will be to use the mediator in the hope that he will present the proposal in the most favourable away and will then put pressure to have it accepted.

The mediator will then shuttle between two rooms.

When you pose serious questions to mediators, who are used to doing so, they end up admitting that they sometimes set aside their code of conduct and put pressure on parties to make them accept what they are offered and that the mediator approves. Some of them even admit making proposals themselves and putting pressure on both parties to have them accept his proposals.

LOOKING FOR OPTIONS IN JOINT SESSIONS

As far as the parties have been brought in a plenary session and the interests have been written on the flip chart, the parties are facing a simple problem, which is now a common problem: What can we do to best satisfy both parties interests?

If the mediator was able to create a collaborative atmosphere between the parties, he can make them accept brainstorming together for a while.

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When you achieve acceptance of brainstorming, you may see extraordinary things happen: People, who did not speak to each other anymore, will compete to find the best possible idea. It is no more about the most favourable proposal for one or the other but about the most favourable option for both parties.

Again options will be written on the flip chart so that they will all be written and not forgotten. And then the parties will have to choose the best option to be their solution. Everything will happen as described above but under the leadership of the mediator.

This leadership will be of paramount interest. This stage is probably the most difficult to manage in direct negotiation. Parties who are asked to imagine anything, should at the same time remain in full control in order to stick to the method.

This is the role of the mediator to tell them when they are getting off track. He will be the one who will make sure that they actually try to invent solutions, that they express their options in a non-judgemental way, that they do not immediately react to what is suggested by the other party. He will also ask his open questions to both of them and this will create a sort of competition between them to be the most creative.

I am tempted to say that at this stage the mediator is indispensable.

This is why cases should be brought to mediation even when the parties do not have a relational or other problem. Because of the creativity that the mediator instils in the options phase, they will reach much better results than if they had been alone. This is particularly true for the negotiation of complex contracts or treaties.

Note that it is often useful to first have a preparation period in separate meetings and then go to plenary to describe and list the options. This will not reduce the creativity of the parties and it may have unlocked their imagination.

DEEPENING THE OPTIONS

As we already saw, an option can have several dimensions: If A purchases B’s shares, this includes many sub options: The price, the modalities of payment, the guaranty, the effective date, the possibility to substitute a third party, etc.

The role of the mediator, whatever the method he uses will be to help the parties identify the sub options and their interrelations and to obtain an organized discussion on the sub options.

It is the mediator’s duty to warn the parties when he has a feeling that there is something in their discussion or their agreement that they have not seen.

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The Solution

This step calls for few comments. The intervention of the mediator will ensure that they choose the solution, which is actually the most advantageous for all parties and that they do not pick one for futile reasons such as tired negotiators, the easiest to draft or the easiest to implement.

But two obstacles may appear at this stage: final bargaining and sabotage.

FINAL BARGAINING

Let’s take the case of a mediation about an amount of damages.

The difficulty of bargaining is due to the fact that the parties are a little ashamed of what they are doing while trying to obtain the best amount, because there is something mean in their discussion. But this is not enough to make them give in.

To free themselves from negative emotions, parties will raise emotional questions: “It is a matter of principle, of honour”, etc. which will just aggravate the relationship because the parties will move toward what we have tried to avoid since the beginning: negative emotions and relational problems.

This bargaining will then almost necessarily take place in separate meetings where parties will not feel like they have lost face.

This is a very delicate, annoying and time-consuming exercise for the mediator.

He needs to know how to present each proposal in the best possible way according to the standards of the party he is talking to, while encouraging both parties to be flexible and without adding pressure or alienating a party.

Recalling the BATNA may be a useful trick at that stage.

SABOTAGE

It is not unusual that between the adoption of the solution and the signature of the agreement by the parties, someone will come and sabotage it.

It may be the lawyer who wants to continue in court.

It may be a member of the team who considers that the solution is not sufficiently favourable to the interests he represents in the organization. While the lawyers will be drafting the contract, he will be lobbying within the organization in order to prevent the signature.

To avoid this, a mediator may be tempted to press the parties to sign immediately. It is not always possible. It may be late in the day. Drafting may take a long time. The agreement of the board or another body may be required.

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And it is not always a good idea. Of course, one should avoid having someone acting against the interests of the parties but the mediator is not qualified to say if the interest of the party is to sign this agreement or to follow the opinion of the opponent.

If the opponent has no chance to avoid the signature, he may sabotage the implementation of the agreement.

THE CLOSING OF THE MEDIATION

It seems evident that the solution should be adopted or at least confirmed in plenary session. At least when the bargaining shuttle is over, it seems normal that the mediator would bring the parties back in plenary to confirm their agreement and then organize the modalities of drafting and signature.

But some mediators never bring the parties back together.

This shows that they have no confidence in the sustainability of the agreement found and that they are afraid that the agreement will collapse if the parties ever meet.

This behaviour can only be explained by the fact that the mediator manipulated the parties in a shocking way to reach an agreement, which would have seemed unacceptable to them if they had been able to discuss things with the other party.

I can personally not approve of this behaviour and any good mediator should bring the parties back together at least at this stage. The large majority of mediators do so.

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The Main Tools of the Mediators

I presented methods. Their implementation is a question of rigour and flexibility.

There is not one method that will do for all cases in all circumstances. The mediator should not lock himself and the parties in rules that would prove inappropriate in some cases. He must have all his tools available and ready to use according to the needs of the parties within the framework of the various steps that were described above.

Most of these tools are common to negotiation and mediation.

In this chapter I would like to insist on the specificity of the use of some tools in mediation and to introduce some tools that are themselves specific to mediation.

THE SEPARATE MEETINGS

Separate meetings are of course specific to mediation.

Depending on his training, his culture, his ability to understand and accept the positive energy contained in emotions, each mediator will more or less use separate meetings.

In each case the need for separate meetings will be different. When there is obviously only one possible outcome, the payment of an amount of money, mediation will turn into bargaining and the use of separate meetings will be recommended.

But you can never know in advance, if this will be the case.

We have already seen an example of this when I described the case of the lady who suffered so much after giving birth to her first child. The mediation was apparently only about money. No one could change the past so that she would not have suffered and there was apparently no other remedy than money as she was not in pain any more. In fact the case settled without money and with only explanation, compassion and confirmation that measures had been taken.

Here is another one. A senior manager of a company was working on a job site abroad. He was once convened to a meeting at the company headquarter in Paris where it was announced that he was fired. Litigation ensued for considerable amounts of money. Though the company and the manager had wanted it, they could never agree. Their lawyers wisely suggested mediation.

Apparently the compensation for unfair dismissal was the only issue. But in the course of mediation in joint sessions, the employer understood that the manager was very frustrated to not have been able to say goodbye to his local colleagues and to pretend that he had resigned. The employer then

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declared that if an agreement was found and whatever the agreement would be, on the occasion of his next trip there, he would take the manager with him for two days and bring him to the job site.

An agreement was found in a few minutes and the manager accepted the minimum he could claim.

This would never have happened with separate meetings, though from the initial information I had this appeared to be the thing to do.

I even have come to believe that with separate meetings the case would not have settled at all. The emotional frustration of the manager would have made it impossible.

Obviously, each mediator must determine how much he wants to use separate meetings. But I believe that separate meetings should only be used after joint meetings. There has to be a first step of plenary where the parties have a chance to make their views known and understood. This should be done through collaboration in the building of the history of the case or of the parties rather than in confrontation.

This means that the first plenary session is not a pure formality. It may last for a while and sometimes for several hours.

The main challenge for mediators is not always realized by mediators: Mediation is a very powerful process, but it is very difficult to go through for the parties. Mediation invites them to change their perceptions, their ideas, their convictions, their values and their position with a risk of losing face in front of someone they initially considered as an enemy. The process must then be as short as possible, to not increase its painfulness for the parties but it must take enough time to reach the deepest possible understanding.

Separate meetings seem to be shorter and less painful. It is not necessarily true. Because no explanation can be given from party to party, changing a point of view is more painful because it is always a loss of face in one’s own eyes, and it takes more time.

TRANSACTIONAL ANALYSIS AND MEDIATION

Because we are a party in the dispute, the use of transactional analysis is not easy in negotiation. We simply do not have the necessary distance.

For the mediator it is a powerful tool that allows him to understand how the relationship of the parties is taking place.

But this analysis does not tell the mediator how to bring people to an Adult state.

He will then have to use empathic active listening.

EMPATHIC ACTIVE LISTENING

This technique is fundamental for a mediator. If he would only use one tool, it would have to be this one.

But in mediation, this listening is not between two parties anymore. It now takes place in a three-way conversation.

By his empathic reformulation, the mediator, like the negotiator or the therapist will:

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• Show his interest for what is said.
• Thus create appreciation.
• Help him understand how what he said was understood.
• Help him improve his speech or the understanding by the other party.

But the mediator’s understanding is less important than the understanding by the other party. The mediator’s listening then has to be “contagious”. It has to end up as an active listening by the other party. This other party also has to understand and express their appreciation.

As he will reformulate, the mediator may invite the other party to reformulate, to express their understanding or their lack of understanding.

A: When I opened the package, there were two books instead of three that I had ordered but the invoice was for three. This is really a fraud.

B: What do you mean, a fraud? Didn’t it ever happen to you that someone made a mistake?

Mediator: (to A) I understand that you felt cross when you saw an invoice for three books instead of two.

Mediator: (to B) Is this what you understand too?

The mediator thus invites the second party to understand the vision of facts by A.

B: Hum… Yes… I believe so…

The invitation of the mediator came as a surprise to B. We are not used to this kind of deep understanding of the “adversary”.

Mediator: (to A) Do we understand you well?

A: Not really. Actually, I don’t care about the invoice so much. I was anyway not going to pay for the book that had not been delivered. The problem was that I was leaving on holiday to the other end of the world the next day and I wanted to take those three books to read on the beach. The invoice was only showing that they had actually received the order.

A clarifies his need compared to his first intervention.

B: Should I understand that you are ready to pay the invoice if I give you the third book?

B takes what he just heard into account.

A: I would appreciate if you would go a little further as I didn’t have it for my holidays.

By his reformulation, the mediator tries to help both parties to listen to and understand each other. Both parties are initially ready to fight because each feels hurt in their identity by violent statements, which are not about the problem but against the other party.

Through his empathic reformulations, the mediator is looking for a deeper understanding of what a party means and presents it to the other party. Then, instead of an emotional reaction, the second party enters into the problem of the other party and starts thinking in term of satisfaction to be given instead of in terms of resistance to an attack.

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THE AUTHORITY OF THE MEDIATOR

The mediator is powerful because he has no power. But he must have authority (in terms of assuredness) and a lot of it.

The authority of the mediator is only directed to the process and not to the substance.

The mediator must be able to bring the parties into the mediation process. He must be able to keep them in it and ensure that they respect each other. He must be strong enough to lead them through the various steps and not diverge from it.

This authority is not granted. The parties and their lawyers do not always know the mediator ahead of time. He will then have to earn his authority over the parties and their lawyers on the spot.

This authority is earned in the first five minutes of the mediation. It will result from the clarity of his explanation of the rules, of his ability to do so in very little time, and of the resulting engagement of the parties. Mediators who simply deliver a speech cannot mobilize the parties.

Then his authority will result in his ability to:

• Conduct his mediation as he announced;
• Reformulate and actively question the parties in order to offer them opportunities to express themselves and be heard in-depth;
• Maintain the tension and the attention by permanently keeping eye contract with the parties;
• Resist tensions;
• Break deadlocks.

A mediator without this authority will have a very low success rate because the parties will quickly fall back into positional negotiation, which failed and made them want to go to mediation.

OTHER TOOLS

There are two other theories that some mediators find helpful and that I would like to mention though I do not use them.

The reason for me not to use them is that I find them a little complex to be instrumental while in the heat of mediation. But I am sure that other mediators can.

Neuro-Linguistic Programming (NLP)

According to Wikipedia: “Neuro-linguistic programming (NLP) is an approach to communication, personal development, and psychotherapy created by Richard Bandler and John Grinder in California, United States in the 1970s. Its creators claim a connection between the neurological processes (“neuro”), language (“linguistic”) and behavioural patterns learned through experience (“programming”) and that these can be changed to achieve specific goals in life.

Some mediators try to use it to get a better understanding of the parties’ psychology.

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Readers who may be interested can find numerous books on the topic. I must also note that NLP is vigorously criticized by some scientific reviews.

Systemics

The term systemics refers to an initiative to study systems from a holistic point of view. It is an attempt at developing logical, mathematical, engineering and philosophical paradigms and frameworks in which physical, technological, biological, social, cognitive and metaphysical systems can be studied and modelled.

As far as conflicts are concerned, the mediator will not see the case as two or a limited number of parties disputing but he will see them as members of a larger group comprising every one they interact with (family and community for individuals — market, clients, suppliers, employees for businesses). The idea will not be to involve all these people but to discover the interactions to understand how the conflict is affected by and affects third parties. This would encourage out-of-the-box thinking.

They will also look at their relationship as a result of a history, which is what I recommend in the Resolvers method of describing facts.

Systemics is not a method as NLP or NVC. It is a way of looking at problems in all sorts of sciences. It is then rather difficult to study as such and to turn into a method for conflict resolution. Another problem is that it uses very abstract concepts and I must admit that I have difficulties to use them in practice.

It is certainly worth studying and I can only encourage readers to do so.³

I would not be surprised if actually systemics would become a future major branch of research for dispute resolution.

This book has no intention to be exhaustive and if it can encourage academics and/or practitioners to go further in their reflection about conflict resolution, I will be extremely happy.

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The Mediation Centres

When mediation starts in a country, its development requires that:

• The public is given confidence in the process;
• The negotiation of the mediation contract is made easy;
• The mediation is administered;
• Mediation is promoted;
• Quality mediators are trained;
• The logistical means of mediation are provided.

To achieve these goals mediation centres appeared in most countries

THE NEED FOR CENTRES

Creating Confidence: Respectability

When mediation appears, everyone understands that a dishonest mediator could be a danger for the parties. Before using the process the parties will want to make sure that they will be in the hands of a trustworthy person.

The first mediation centres are therefore often created by institutions that the public trusts: Chambers of commerce, Bar associations, professional associations, etc.

These institutions will both guarantee the professional ability of the mediators and the regularity of that process.

Many centres intend to intervene in specialized fields: construction, cinema, insurance, etc. We have already seen that ignorance could be an advantage for the mediator who can thus ask questions and bring the parties to clarify technical misunderstandings or see things from a new point of view. I am therefore a bit critical about the founding concept of these centres. But I must admit that the parties tend to look for specialized mediators.

Each professional organization believes that, in a stressful situation, their members will wish to have mediators who understand them. As it is the organization’s business to understand and support their members and they believe that they should organize these mediations. I believe this is an error. They confuse the emotional understanding of a conflict (which is the mediator’s job) and the intellectual technical understanding of the problem (which is the expert’s job).

Most of these centres actually only receive a very limited number of cases. The reason for this seems to be that mediations between professionals of the same technique do not need experts, as the parties know the technique. Non-professionals of this technique do not want to use these centres because they are afraid that the centres would unduly support their members.

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Creating Confidence: Quality

Centres must select their mediators according to their qualities and guarantee the public that they will provide quality mediators.

All centres do not provide the same service in this respect and I can only invite parties and their lawyers to carefully enquire about the way mediators of the centre they consider using, are selected:

• In some centres one only has to pay an annual fee and prove that he has been trained to be on the list;
• In other centres one must pass an exam;
• In some others, mediators are selected on their reputation and experience.

Indeed, this service is very important because a lawyer or a party without experience would not know how to otherwise find a good mediator. But the guarantee given is relative because the centre cannot have too large a number of mediators: If it has too many, they will have little experience and the more seasoned ones will be available on the market. If the centre of only has a limited number, new mediators may not be able to join the list, even if they are good.

The International Chamber of Commerce resolved the problem in a unique manner: They do not have a list and instead look for the best mediator case-by-case. To that effect, they can use the worldwide network of their national committees, which allows them to have access to the most reliable personalities for each case.

Centres usually follow the results of the mediation and have the mediator evaluated by the parties. This guarantees the parties that they will not have immediate a mediator who disappointed previous parties.

The Centre’s Rules as a Mediation Contract

Most Centres have created rules to which mediators and parties are invited to adhere.

Those rules usually contain the following provisions:

• Model clause to be inserted in contracts;
• Modalities for introducing the case with the centre (by one, several or all parties);
• Modalities of appointment of the mediator;
• Duration of the mediation and renewal;
• Cost of the services of the centre and of the mediator and modalities of payment;
• Confidentiality;
• Code of conduct;
• End of mediation by the parties, the mediator or the centre.

Those rules look very much alike.

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The main differences regard tariffs.

Almost all centres request a fee to open the file and then, if the mediation actually takes place, a fee for the administration of the mediation.

The administration fee is sometimes included within the mediator’s fee, which means that the centre will charge an hourly rate and will keep a part of it (usually 30%), the rest being paid to the mediator.

In other centres, the mediator’s fees are treated separately from those of the centre. This type of invoicing is obviously more transparent and avoids that the Centre be paid large amounts of money for a long mediation in which they do not have to intervene much.

Exceptions to the Rules

The rules are standard. Most rules allow exceptions to their provisions. This may concern confidentiality, duration, content of the mission, etc.

Most rules also provide that the centre may administer mediation, which were initiated without them. This may be the case in some countries for court-ordered mediations, as judges sometimes prefer having the mediator appointed by a centre.

Most centres can also intervene as appointing authority without administering the mediation.

Administration of the Mediation

The administration of the mediation consists in doing what is necessary to have it happen smoothly, according to an agreed calendar and also in managing the financial aspect of it.

The centre will intervene if the mediator would voluntarily or involuntarily not perform his duty. The centre will also intervene in case of a complaint against the mediator. In most cases they will have to replace him. Of course the centre will have to see that this does not delay the mediation too much.

Some centres manage the calendar for the various mediation sessions. This is particularly the case in the United States.

Even if the centre does not manage the calendar, they will make sure that the mediator sets the meeting dates, which are compatible with the periods provided by the rules, or the parties.

The centre follows the number of hours spent by itself and the mediator in order to make sure that the fees paid are sufficient to cover the cost of the mediation and calls for additional payments.

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Promotion of Mediation

Obviously the mediation centres are expected to promote mediation and it is also promoting their own services.

For the most active centres, this promotion is directed toward all possible users:

• Company directly or through their various associations;
• Lawyers who must learn what mediation is, what the mediator can expect from them, what is the added value they can bring to their clients in mediation, what are the commercial and financial advantages they can find by using this technique.
• Judges, who should also learn about mediation and who should be induced to think about the way it relates to their mission and the service owed to the citizens.

This is achieved through the publication of brochures, by symposium and seminars.

The Training of Mediators

Centres are interested in training mediators to make sure that the mediators they use received an appropriate training.

In addition, training provides the centres with substantial income without which many of them would have problems balancing their budget from their only mediation income.

Though it is useful, this training of mediators by mediation centres raises some problems. Mediators trained by a centre expect to receive mediations from the centre. In most countries, centres train many more mediators than the number of the cases they have. This generates deep frustrations.

It is also difficult for a mediator who has been trained by one centre to apply to be a mediator with another centre.

Centres may also be places for a continued education mainly by exchange of experiences by their members.

Providing Logistical Resources

In this respect, practice varies considerably from one centre to the other.

Some centres do not provide any resources. Other centres offer meeting rooms. Some offer secretarial services. Some even provide catering services.

THE EVOLUTION OF THE MEDIATION CENTRES MARKET

Mediation centres play a considerable role for the introduction of mediation in a country. What is the situation when mediation is well established?

When in-house counsel and attorneys have become accustomed to mediation, they have also met a number of mediators, they have learned to differentiate their techniques and personalities, to identify the best and the others. They also know those they prefer.

Then the appointing role of the centres is less needed.

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When the market knows the process, is comfortable with it and knows its main actors, the role of the centres has less initiating the mediation then helping their management.

At that stage, the business model mediation of the centres becomes very different and close to the American model where a mediation centre is intended to provide space, secretariat, calendar management, food, etc. so that the mediators only have to appear and mediate.

From the mediators point of view, whereas they were very much depending on the centres to receive business, at this later stage, they are the ones who bring business to the centres who give them the best logistical and secretarial services.

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The Implementation of Mediation

The Kick-Off Stage

Starting a mediation raises a series of questions.

WHEN TO OFFER MEDIATION?

The principle is simple: Mediation can take place at any time. This does not mean that the timing is meaningless.

Mediation to Salvage a Negotiation in Danger

Another principle is that you should not use mediation when you can reach the result without it. If you can negotiate with a reasonable chance of success, why pay a mediator?

On the contrary, if your negotiation failed or is in danger of failing, you should immediately think about using mediation to salvage it. This implies that you can identify the causes of the failure. Developments on negotiation above should allow you to do so. The above developments on mediation should help you determine if a mediator can help you.

Mediation is certainly a means of saving a failing negotiation by assisting it in all its phases.

Mediation as a Substitute to Negotiation

Mediation can also be a substitute for an impossible negotiation or a difficult negotiation.

When a relationship is very bad it may seem difficult to offer negotiation. The parties are simply unable to work on the relationship, they then have to use a third party and go directly to mediation.

It may also apply in complex contract negotiations when the parties need to very strictly follow a method or an agenda. The mediator will guarantee the process. When there is a mediator in the initial negotiation of a contract, if often happens that the mediator would also receive a mission to intervene whenever there is a difficulty in the implementation of the contract.

I have also had the opportunity of acting as a mediator in the re-negotiation of a contract. The initial contract that not been properly drafted, so that difficulties had appeared in its implementation. The relationship between the parties was therefore difficult and they found it advantageous to ask a mediator to help them in their renegotiation.

The intervention of a mediator in the negotiation is often called “deal mediation” or “transactional mediation”.

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When the mediator is also asked to follow the implementation of the contract, it is often called “partnering”. This is mainly used in large infrastructure contracts.

Pre-Litigation/Arbitration Mediation

It would of course be a pity to go to litigation if it could be avoided through mediation. I would even say that one should not go to litigation without having tried mediation, unless there were some very serious reasons for it and the failure of a negotiation would not be one. It would on the contrary be an additional reason to go to mediation.

Mediation in the Cause Litigation/Arbitration

As arguments and evidence are exchanged, parties often have a different vision of the likely outcome of the litigation/mediation as well as of its duration and its cost. The question of researching an amicable settlement may be asked at various stages of the litigation/arbitration process.

In most jurisdictions, judges would invite the parties to go to mediation and possibly help them organize this mediation.

Mediation can also intervene after the judgement in order to prevent an appeal or even later at the time of the enforcement of a decision. Having obtained a good decision is one thing. Enforcing it is another, which may itself generate new litigation and disappointments on both sides. Mediation can help manage this stage and find realistic solutions.

HOW TO OFFER MEDIATION?

By the Parties and the Lawyers

We discussed the offer of negotiation and its preparation. Of course, the same questions will arise when offering mediation or when replying to such an offer.

There are also specific questions:

Today, with the exception of some countries, few people, even lawyers really know what mediation is.

As we have seen the lack of information generates distrust and aggressiveness.

To overcome this obstacle one should act in accordance with what we said about information problems. This means that the other parties should be encouraged to ask themselves about mediation and to get information through a procedure, which will seem trustworthy to you and them. This may be done through documentation on the Internet. Mediation centres are also keen to give information.

If you have had satisfying personal experiences, you may describe them. You may also explain that these experiences are inspiring your offer. You can finally suggest that the other party speak with people/lawyers who have had positive experiences.

Other fears may appear even with well-informed people: the cost and the loss of time.

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As soon as the case is of some importance, the cost of mediation is usually very small compared to the stakes and the possible cost of a judicial or arbitral procedure. This argument is then not really serious, except for small matters but there are often generally free mediation services available for those cases.

The time argument can be more serious. But when there is some real urgency, mediation can take place without suspending the procedure. It is also possible to have mediation within a very short period of time. I was once appointed for a mediation that took place the next day and had to be over in the evening. The problem can then easily be controlled.

By the Judge

The proposal may come from the judge, possibly on the suggestion of one of the parties.

In all European countries and in many others, the judge can suggest mediation to the parties.

The actual use of this provision is quite different from one country to the other and from one judge to the other. Obviously offering mediation is a cultural change for judges. They have to understand their mission as a service to the parties rather than as the enjoyment of their authority over the population.

A proposal is a proposal, which means that the parties may refuse. In many cases, parties are afraid of alienating the judge, if they do not accept, so that when the judge does offer mediation the acceptance rate is rather high.

The important point is to understand why the judge offered mediation. The best judges look at cases and ask themselves if the possible solutions they would make, would actually help the parties and resolve the problem. If not, they would offer mediation.

There are good reasons to refuse an offer by the judge:

• When the proposal comes too early and the parties still need to know more about each other’s arguments;
• When one party needs a precedent to guide their future action;
• When both parties believe that they will prevail on the principle, they need a decision to later negotiate the consequences of the principle.

The answer to the judge does not necessarily have to be a pure yes or no. It can be a conditional yes: if the mediator is (or is not) this person, if it is within a short period of time, if the mediator fees are not more than a certain amount, etc. The parties can agree on all the points that the judge must solve.

It is sometimes difficult to offer mediation directly between parties or between lawyers and particularly for a lawyer to offer it to a party who does not have a lawyer.

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The proposal can then be made through the judge. This will avoid a systematic and confidential refusal and will bring the party to think about it more seriously. If the judge is convinced that it would be a good idea, this will make it more difficult for the other party to refuse it.

If parties agree on the principle but not on the name of the mediator, they can ask the judge to appoint one.

Through a Centre

Most centres accept to intervene to offer mediation to a party at the request of the other one.

This will not be received as pressure by the party receiving the offer. The requesting party (who can be the claimant as well as the defendant) will give the centre a brief summary of the case stating the reason why they wish to resolve it in mediation. The centre will then contact the “responding” party in the manner they think fit to:

• Inform them of the request;
• Inform them about mediation in general and through this centre in particular;
• Show them the advantages they would receive from mediation.

There is of course a fee attached to this service.

Before asking a centre to do so, make sure that they will actively follow up after their first letter. I had a very bad experience where the centre did not follow up and their intervention was actually more an obstacle to a resolution.

CHOOSING YOUR MEDIATOR

Specialization and Main Field of Activity

The specialization of a mediator in a technical field should not be a criterion for appointing him. We have several times had opportunities to say so.

But there are fields of activity, which depend more on personal preferences than on mediator’s technical expertise.

Obviously if you choose a mediator who usually mediates community disputes in the suburbs to mediate an industrial conflict between two multinational companies, or the opposite, the chances of success may not be the as high as you would wish. Mediating different kinds of conflict requires different types of aptitudes, personalities and affinities.

You should then choose a mediator who feels comfortable among the type of people and the type of problem he would have to deal with. The best way to know if this is the case, unless the mediator has a reputation for that, is to ask him.

Finding the Best Mediator in his Field

There are no objective criteria for that.

Of course the mediator must have been trained but this is not enough.

Someone who followed several trainings probably improved himself by hearing several voices, which allowed him to choose his style. His

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participation in such trainings, in symposia and seminars shows that this person is really involved in this activity. But some remain terrible mediators irrespective of their trainings because they simply do not have the appropriate personality.

The only criterion to select a mediator is his reputation. What do the lawyers who experienced him say about him? Do they try to use him again or to avoid him?

What is a Master Mediator?

Some people in the world have a reputation to be great mediators. What is their reputation based on? I believe that this is due to personal qualities and technical knowledge in the field of negotiation and mediation.

• Humility

The first quality of a master mediator is humility. This means that when he enters a mediation his only purpose is to help the parties find a solution.

Some mediators, intending to increase their authority, tend to value themselves wanting the parties to admire them. This is probably the worst mistake a mediator can make.

The mediator should not inform the parties of his opinions, the way in which he would resolve the matter. They are not there to tell the parties what to do. They are there to help them find their solution.

• Listening Ability

A master mediator must be able to listen to what the parties have to say. He must be able to perfectly use the listening techniques we studied. They can only develop with a personality who is curious to learn and discover the personalities of the others.

Some mediators are not patient enough to listen. They want to immediately go to the solution and they still need to show that they know how to immediately find it. This results in a distorted listening. They hear what they want to hear, which will allow them to quickly reach any solution.

Some always have their personal problem in mind. Through the words of others, they only hear their personal concern. They are unable to approach the parties’ problem. It has to be the same as theirs.

These different types of distorted hearings are major obstacles to mediation. You want a mediator who can really listen to the parties.

• Non Judgemental

The ability to refrain from judging or even better to not feel the need to judge is fundamental for a mediator. This may seem shocking to some who think and deeply believe that they should judge everything in order to sort out what is good or bad.

From a theoretical point of view, we must understand that at every point of time we all do what we think we should do, even if we know it is against the law or a moral rule. We feel that despite this prohibition, we should do it. Then, the positive or negative judgment of the other is never matching what we experienced. We do not act according to the law but to our needs. The

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law is only limiting our actions (and sometimes we are praised for going beyond its borders) and never motivates it.

For a solution to be acceptable, it has to be in the logic of the parties’ needs, not of the law. The mediator definitely must place himself on this terrain of the interests rather than of the law (be it legal or moral) and not judge.

From the emotional point of view, judgement would simply not make sense. The point is not about not expressing your judgements. Even if you do not, they will guide your behaviour. The mediator should be able to not judge.

A mediator who would judge and not reveal his judgements would be in contradiction with himself. He might disclose his judgement in a moment of tension and it may be in a violent or inappropriate manner.

There is something even more important. Mediation is such a demanding exercise for the mediator that he must feel physically and morally apt and in good shape. If he experiences a tension between his convictions and what is happening in the mediation, he will not be able to properly perform his duty.

Such a mediator would be like a long distance runner with a stone in his shoe.

• Patience and Tenacity

One of my American mediator friends says that when he returns home in the evening after his daily mediation, his wife would invariably ask him if they settled. To this question, he has two answers: “yes” or “not yet”.

As we could see with the stages of grief, coming out of the crisis is a long and difficult exercise. Parties must go through emotionally hard ordeals. It is often tempting for them to forget about it all and to send the whole matter to the judge rather than endure the ordeal.

After a day in mediation, once time has elapsed, emotions change and parties often find themselves able to move to the next stage. The mediator should not jump to conclusions. If parties cannot agree on the mediation day, they should be given time to think things over and maybe resume mediation later.

• Modesty

The mediator, who comes back from his mediation being satisfied with himself, is probably not a very good mediator.

We must think and act simultaneously at so many levels that it is almost impossible to not make mistakes.

At the end of a day in mediation, the mediator must mentally go through his day and ask what could have been done better; and there is always a lot to say.

Becoming a good mediator demands that you regularly go through this exercise and, when you can, that you participate in practice analysis groups and also accept supervision.

It is also impossible to get into the mediation room immediately after another meeting or a telephone conversation. It is necessary to take some time to concentrate and, for those who practice this art, to meditate.

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Before coming in, the mediator must quietly go through this scenario of any mediation step by step. He must open his mind up to be ready to listen, to reformulate, to make each party listen to the other one, to manage the tension, to receive the emotions and have them shared by the other party, to transform them into a positive energy that helps move the mediation forward. Only then you will be able to welcome the parties.

Some authors describe mediation as an arena. If the mediator is a torero, he must also go through a preparation routine before entering the arena.

• Technical Knowledge

In this book, I presented the techniques that I try to use. Some of them may be more appealing to you than others. Choose those that suit you best to study them further. The material that I have presented is simply an invitation to study these techniques through books and/or seminars. Reading this book will not be enough to make you a good mediator. The training of a mediator is never over.

When you practice mediation, do not confuse the styles. Most of the techniques we have studied come from therapy. But as a mediator, you are not a therapist. You may also be a therapist and able to deal with problems of one or the other party but that this is not your role as a mediator; and you should not give them legal advice even if you are a lawyer.

The difference between mediators, on the one side, lawyers, therapists and coaches, on the other, is that the mediator is in charge of all the parties and possibly their counsels, whereas lawyers, therapists and coaches are only in charge of one party at a time.

The mediator may have to refer a party to a lawyer, a therapist or a coach when he feels that such services are needed and that the problems that the party has prevents the finding of an agreement. But the mediator cannot act in substitution of these professionals, even if he is qualified.

Should the mediator advise one party, he would lose his neutrality and be immediately disqualified in his role as mediator.

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