Mediation

Negotiation by Other Moves

Alain Lempereur, Jacques Salzer, Aurelien Colson, Michele Pekar, Eugene B. Kogan

• Publisher: Wiley
• Year: 2021
• ISBN:
  9781119805359
• Edition: 1
• Topic: Personal Development
• Subtopic: Conflict Resolution

When negotiation fails, mediation avails other moves for an amicable resolution. Whether you are a current or future mediator or a party to a conflict, this is your essential companion to the theory, concepts, and best practices of mediation.

In a world ridden by social divisions, responsible resolution of conflicts is more timely than ever. What happens when parties are unable to negotiate an agreement together? The next move is to invite a third party to reset the negotiations, facilitate the exchanges, rebuild a working relationship and empower the parties to explore the past, surface their present needs, invent, evaluate and choose the best solutions for the future.

Mediation: Negotiation by Other Moves brings decades of critical analysis and experience that the authors tested worldwide in international organizations, governments, NGOs, universities and corporations. You will understand mediation better, and its significance in your personal and professional life. You will be able to develop a flexible mindset and a broad outlook to achieve sustainable outcomes. This book will cover:

• Models and principles from various domains of mediation: family, business & labor, public affairs, international relations
• A mediation framework to prepare for mediation and to run its process smoothly
• A step-by-step approach to a mediation session, from the opening until a possible settlement, via the various phases of problem solving
• Mediation traps and how to avoid them—for mediators and parties alike
• Ethics of mediation and questions of responsibility

Mediation: Negotiation by Other Moves is essential reading for anyone who wishes to develop a pragmatic approach to mediation.

CHAPTER 1
THE PERIMETER: Explore Existing Mediation Practices Before Seeking Methods

Before proposing a mediation method, it seems important to offer an inventory of existing practices, which will give us the opportunity to explore the breadth and richness of mediation. After a brief tour of the origins of the word, this chapter will examine the multiple instances – informal, ad hoc, or institutional – which contribute to the current mediation culture. Examining numerous mediation examples, this chapter argues that a great diversity of practices can inspire us in the service of the peaceful resolution of conflicts.

The Origins of a Practice and Its Words

Ancient Sources

Historical texts enlighten us on the ancient use of mediation practices. Research (Cardinet 1997) shows that the written history of mediation started around 500 BCE. Notably, the word mesites written on papyrus refers to Mitra, half‐god and half‐man, thus creating a link between humanity and the divine. Further, in his Constitution for Athens, Aristotle notes that Solon is a reconciler between two camps. In the second century CE, mesites was translated into Latin as “mediator.” Human beings, as individuals or belonging to groups of varying social organizations, needed to determine who would “intermediate” among them, and between them, God, and the universe.

This is how Christian theology offers one of the first uses of the term, with Jesus as “mediator between God and mankind” (I Timothy 2:5). In 1265, the word mediateur first appears in French in Jean de Meung's Le Roman de la Rose. In 1382, borrowed from the Latin word immediatus, appears the word immédiat meaning “direct and without intermediary”; in 1478, the word médiat, from the Latin mediatus, is used to refer to an indirect action. With the meaning of “intermediary intended to reconcile persons or parties,” the French use of the word mediateur dates to the sixteenth century. The word mediation recalls Old English midd for “middle.” In 1540, it meant “divide in two equal parts.” By the middle of the seventeenth century, the meaning was “occupy a middle place or position.” The “act as a mediator, intervene for the purpose of reconciliation” likely hails from 1610, while “settle by mediation, harmonize, reconcile” is probably from the mid‐1500s (Online Etymology Dictionary 2020). In 1694, the term mediation appears in the dictionary of the French Academy. It is then used widely, even in literature such as in La Fontaine's fable “Vultures and Pigeons”: “They tried their hand at mediation / To reconcile the foes, or part” (La Fontaine 1668, Fable VIII, 7th book).

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Wicquefort or the old and difficult “status of mediator”

A diplomat born in Holland, Abraham de Wicquefort (1606–1682) closely observed seventeenth century diplomacy during the 1648 Congress of Westphalia. In 1680–1681, he published The Ambassador and His Functions, a scholarly analysis of this profession, which was then in full expansion. Illustrating how established was the practice of mediation between sovereign powers, section XI of volume 2 is entitled “Of mediation and ambassadors‐mediators.” Wicquefort already saw the difficulty of the task: “The status of mediator is one of the most difficult for the ambassador to bear, and mediation is one of his most unpleasant tasks.”

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More recently, the Convention for the Pacific Settlement of International Disputes, signed at The Hague in 1907, had for its main objective in Part I: “The Maintenance of General Peace.” The path to be preferred for this purpose was specified in Part II: “Good Offices and Mediation.”

Mediation has been a research topic for a long time already. In France, research on mediation dates from the beginning of the twentieth century. A bibliography on the period 1945–1959 contains some 572 references of books and articles (Meynaud and Schroeder 1961). These writings and works relate mainly to mediation in labor relations and collective conflicts, but also in international relations.

The Meaning of a Word

Mediation, in the etymological sense, is constituted by a space, a time, an object, a language, or an intermediary person who opposes the dangers of immediacy – which might lead to overreaction and spiraling confrontation. Historically, mediation holds two distinct meanings, the second of which forms the subject of this book:

• An intercession, or intervention in favor of another whom we represent. This is the case, for instance, when a single real estate agency acts as the mediator between the seller of a home and potential buyers. The word retains the meaning of a “reciprocal” intercession for all parties.
• An impartial external intervention, offered to (and/or requested by) conflicting parties, to organize exchanges with a view to building mutually acceptable solutions.

Mediators, moderators, facilitators, neutrals, go‐betweens, third parties, ombuds: there are many terms, but they refer to the same situation: the presence of an intermediary – a person or a group of people – who intervenes between two or more parties in conflict, seeking to facilitate negotiation between them with a view to arriving at a peaceful solution agreed by them. For Wicquefort, “the word mediator fairly well expresses [the] function: it consists properly in putting oneself in the middle to bring together the parts that have moved away.” To designate the act of mediation itself, the verb “to mediate” is commonplace in English, while the French modern equivalent – médier – remains seldom used.

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Mediators: An Overview of Current Practices

As a starting point, let us list key variables for the diversity of mediation practices:

• Time: Mediation can be preventive, pos...