Mediation. Alain Lempereur

the husband refuses to grant a $2,000 monthly payment of alimony to his ex‐wife. She demands this sum, producing a budget of her monthly needs and those of their children. In mediation, the husband reveals that he understands the necessity of this sum, but his new partner considers that it would be offering an undeserved luxury to his ex‐spouse. He needs the solution to be understood by, and acceptable to, his new partner. It is thus not as much the financial aspect that annoys him, contrary to how it appeared at the start. Once these respective needs are clarified, the parties come to imagine appropriate responses to it. During the mediation, an acceptable solution for the parties (but also for the new partner in the background) emerges. First, the ex‐husband transfers a $1,000 alimony to his former spouse, who will manage this sum for herself and both children. Second, he will grant up to $1,000 to cover a part of the rent, which he will transfer directly to the real estate agent. This final clause ensures that the money is not used for another purpose. The agreement is thus durable, responding to the needs of both parties.

      This example underlines that beyond negotiators – the ex‐spouses – quasi‐negotiators, however absent from exchanges, exercise an important influence on the choices of official negotiators (Colson 2007). A party's refusal in mediation is sometimes rooted in the fact that another stakeholder, absent but decisive, is not taken into account in the solution. That is why the mediator's approach claims to be as inclusive as possible. To assure a durable agreement, it is important to map out all the relevant protagonists who might be impacted by the consequences of the agreement, block it, or, on the contrary, encourage it.

      The following example illustrates the advantage of mediation in finding solutions that integrate the needs of all parties and in organizing the agreement's sustainability by anticipating changes in circumstances and their potential consequences for the initial agreement.

      Inheritance: To sell or not sell the house?

      A sister wants to keep the family home of five rooms where she was living with her parents, now deceased. Her brother wants to sell the house to collect half the purchase price that he inherits. Mediation reveals the following:

       For the sister, the emotional need to conserve the family home and the practical need to find accommodation

       For the brother, the need to finance the acquisition of a small apartment in the same town to house his two kids, who are attending university

      From there, the mediator brings the parties to imagine solutions not formerly envisioned. The property will not be divided. The sister will let her nephews, the students, occupy half of the house. She will keep the family home, while her brother will not incur any expenditure to house his kids in town. At the end of the children's studies, the sister will pay a rent to her brother or progressively buy his part of the house.

      Because the solutions are elaborated by the parties themselves and respond better to their multiple needs, as well as those of others, they are not only well accepted but also more easily implemented. Naturally, for solutions to be acceptable they also need to appear equitable – fair – to both parties in the unique context of each situation. This important principle of fairness is analyzed in Chapter 3.

      Control of the Parties Over the Final Decision

      If one chooses an external decision system – arbitration, ruling, or vote – uncertainty increases as our control over the final decision diminishes. Choosing to rely on a third party is accepting in advance that their decision can disappoint us, not conforming itself to our expectations, hurting us, and even frustrating everyone.

On the other hand, the advantage of mediation – as in negotiation – is to leave the power of the decision to the parties themselves, evidently consistent with public order. In this sense, mediation prolongs the negotiated space where the parties retain their autonomy and engage one another freely. It is only as a last resort, mediation failing, that the final outcome requires an external decision‐making body imposing itself from this point forward. In that respect, mediation makes parties aware of their responsibilities and decision‐making capabilities. They control their decision. Certainly, they can refuse, if necessary, an agreement that they would consider unsatisfying; but the flip side to this freedom is that they can otherwise accept it and agree to implement an agreement that is suitable to them.

      Nevertheless, it happens that a party, facing mediation, feels a form of disempowerment. Two principal causes explain how mediation can by perceived as interference. One is the tactlessness of mediators, who fail to act like facilitators when necessary and rather overplay the role of advisers, to the extent of appearing as moralizers and know‐it‐alls. The other reason concerns the inadequate choices of mediators. In Africa, for example, mediations proposed by a former colonial power will in general be badly received by the representatives of an independent state, quick to interpret them as a neocolonial maneuver.

      Avoiding this parties' feeling of disempowerment is an ongoing concern for the mediator. Thus, it is up to them to walk the talk and constantly prove by their behaviors and moves that they do the utmost to help the parties to find their own solutions and, in the final analysis, to recall that the ultimate decision belongs to them, and not to the mediator.

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      Committed to overcoming a painful past and building an acceptable future, mediation will be pertinent each time that the relevant conflict will bring together some of the 14 justifications presented in this chapter. There is no need for all criteria to be verified; but the more there are, the more relevant mediation will prove. Needless to say, the fact remains that at the onset of mediation the parties may express fears and doubts. Are mediators neutral? Are they independent enough of all the interested parties? Do they not risk showing themselves more sensitive to the point of view of the other than to mine? Are they competent? Will they keep what I tell them confidential? Are they going to impose their own visions of things on us? Hence the importance, for the mediator, as for the parties, to keep in mind some key principles regarding structuring the functioning of mediation. This is the goal of the following chapter.