are not always easy to detect, but when they have been uncovered, it is useful, with the agreement of the parties, to invite them to mediation.TABLE 1.3From whom? And with whom? (continued)In the presence of parties alone – Parties are not accompanied by anyone who could offer advice.In the presence of supporting parties – Other people are present to provide informal (friend, family, ally) or formal (expert, lawyer) advice.Child custodyWhen mediating a divorce, one of the spouses seems to agree with the other but opposes a solution that seems reasonable and corresponds to their interests. They repeatedly reject the agreement. They end up revealing that their opposition reflects the pressure they are under from their own parents. Rather than going around in circles, it is better to initiate an in‐depth discussion with the grandparents – the hidden interlocutors – and identify their concerns. Their involvement will help to find an agreement that integrates, if possible, the needs of the children, the mother, the father, and the grandparents.
Lawyers' presence or absence deserves special attention, as opinions differ: “Lawyers are welcome all the time,” or “at certain times during mediation,” or “above all, no lawyers present during mediation!”
Some mediators are convinced that only the parties should be present, because it is their own story: the challenge is to restore their power, without outside interference. The parties will always be able to consult their lawyers outside the sessions.
For other mediators, when the parties have already taken on lawyers, it is useful for the latter to be present at the sessions, so that they too know and understand what is experienced and said in the relationship between their client and the other party. Indeed, often, lawyers do not have access to “the other party,” but only to their own client or the other's lawyer. They are therefore far from knowing everything that takes place in this relationship. If they are present, they will better understand what comes out of the process and thus better advise their client.
Several means of communication are used in mediation, which contributes to the diversity of mediation practices. Let us recall the main ones.
Writing – The vast majority of institutional mediators deal with written documents. Parties and mediators exchange letters and memos. Although registered mail with acknowledgment of receipt remains advisable to keep a record of documents exchanged, documents sent as e‐mail attachments have increasingly become the norm. If, from beginning to end, exchanges of information go only through e‐mails, this “cyber‐mediation” might miss the root causes of the conflict and fail to analyze the behavior of each party, given the lack of direct interaction.
Telephone – Of course, telephone calls can routinely help to rapidly clarify a given item. Sometimes, given the urgency, mediation can only be done by phone, the necessary documents or proposed agreements being sent by e‐mails in parallel. For example, disputes over the purchase or sale of securities have to be settled quickly. In other disputes, it may happen that a phone call from a mediator is sufficient to help overcome the reluctance of a given party to join the mediation meeting.Defective household applianceUnhappy with a valuable appliance that the store refuses to repair, a customer turns to a mediator. A phone call from the mediator to the store manager was enough for the customer to be welcomed there the same day in order to find a solution, without the mediator needing to further intervene.TABLE 1.4What is the compensation framework?Self‐funded – The parties assume the cost of mediation.Subsidized – All or part of the cost of mediation is covered by the institution.Paid – Mediators receive a fee for their services.Volunteer – Mediators do not receive any monetary compensation.With what means of communication, and what meeting formats?Written – By exchange of letters, in paper, or electronic format.Oral – Face‐to‐face, by videoconference, or by telephone.With individual meetings at the start – Mediators first receive each of the parties privately.With a joint meeting at the start – Mediators first receive all the parties together.Along the way, individual meetings alternate with joint meetings.Throughout the mediation, the same type of meeting continues – either individual or joint.
Videoconference – Enhanced systems of videoconferencing (Zoom or otherwise) have now bridged the gap between e‐mail exchanges and face‐to‐face meetings. At the same time, parties and mediators can hear and watch each other, while also showing and even editing documents shared on the screen. This fairly new medium, which became “the new normal” in 2020 because of the COVID‐19 confinement in many countries, has proved an effective way to save time and carbon emissions, as parties can meet while being in different parts of the country – or on different continents altogether.
Face‐to‐face meetings – Nevertheless, this mediation mode remains the favored mode of interaction between parties and mediators, as they optimize the exchange of information and allow participants to grasp “the mood in the room” – the unsaid elements that help sense whether the mediation is heading in the right direction. These meetings take several forms between the beginning and the end – individual with each party, in sub‐groups, bringing together all the parties – each with its advantages and disadvantages. These different types of meetings will be elaborated on in Chapter 5.
TABLE 1.5
| What about the time factor? | |
|---|---|
| A unique encounter. | Several successive meetings. |
| Brevity of meeting – For example, 1.5 to 4 hours in criminal or family mediation. | “Marathon” meeting – Mediation proceeds continuously over a weekend, a few days, or even weeks. For example, a dispute between banks in different countries – brought to court for two years – was resolved within a week by intensive mediation. |
| Short in total – Mediation focuses on a meeting of a few hours. | Long‐lasting in total – Mediation spans several days, even months or even years. |
| Where? | |
| In a “neutral” space – A place equidistant between the parties, the premises of a mediation center or a town hall. | At the place of the dispute, or on the premises of one party with the agreement of the other – For example, on the construction site where the damage occurred. |
| Agreement and post‐mediation | |
| With suggestions for solutions from the parties. | With suggestions for solutions from mediators. |
| With a final written agreement – Written by the parties themselves, or their lawyers, or mediators, or a combination of the above. This written agreement can be approved by a court to ensure enforceability. | With a final oral agreement. |
| With the existence of a follow‐up – Verification with mediators of the next steps of implementation and completion of the agreement. | Without follow‐up – Follow‐up is left to the parties themselves. |
| With post‐mediation debrief – The mediation, once completed, is the subject of an analysis of practices, and of exchange between mediators. | Without post‐mediation debrief – Without organized exchanges of reflection between peers on past mediations. |
Of course, a given mediation can simultaneously combine a set of elements taken from both columns of the tables above. This diversity is further increased if we look at the variety of mediation sequences, an aspect covered in greater detail in Chapters 5 to