Cover: Mediation by Alain Lempereur, Jacques Salzer, Aurélien Colson, Michele Pekar, Eugene Kogan

Praise for Mediation

“In today's world we are called to be mediators in almost everything we do: mediation has become an essential aspect of true leadership and success. This book is a must read, not just for experts and practitioners, but also for whoever wants to foster inclusiveness and reciprocal understanding.”

Enrico Letta, Dean of the Paris School of International Affairs and former Prime Minister of Italy

“As evidenced in this book, mediation benefits all spheres of society. A prominent example is the use of mediation by patrol police officers, which infuses them with both problem‐solving and attention to dignity. It promotes nonviolent positive interactions between citizens and police.”

Christopher C. Cooper, Attorney, Mediator, former Washington D.C. Police Officer & U.S. Marine Sergeant

I always recommend this book to students, because the authors' complementary profiles and lenses account with talent and acuity for the peaceful and democratic uses of mediation.”

Jacques Faget, Professor of Law and Sociology, University of Bordeaux

“Military chiefs have a duty to master the art of war, but also of mediation. Hundreds of officers from 120 countries benefitted from this book's principles and used them afterwards in operations.”

Loïc Finaz, Vice‐Admiral (Ret.), War College (France)

“For anyone interested in mediation or as a reference for experienced practitioners, this book is an accessible and complete resource written by seasoned and world‐class mediators. Many EU diplomats and advisers have already benefited from its substance for more than a decade.”

Antje Herrberg, Mediator, European External Action Service, and founder of MediatEUr

“This thought‐provoking book is an asset for those who are keen on achieving desired results in diplomatic mediation. It will guide a reader to success, even when the chances look remote.”

Oleg Ivanov, Diplomatic Academy, Ministry of Foreign Affairs (Russia)

“Our mission is to support the capacity of Israelis, Palestinians and other regional actors to negotiate more effectively. We need to leverage the mediation methods of this book every day.”

Ihab Khatib & Lior Frankiensztajn, Executive Directors, Negotiation Strategies Institute, Jerusalem‐based NGO

“With rising conflicts in today's world, mediation is needed more than ever. Here is a lucid and insightful book on the contemporary practice of mediation, highly practical and usefully illustrated with a range of good examples. It is a genuine pleasure to recommend this excellent book to students, professional mediators, and indeed anyone who practices mediation informally, in other words, most of us.”

William Ury, co-author, Getting to Yes, and author, The Third Side

“If you love French cuisine, Escoffier's Guide to Modern Cookery has been a reference for 100 years. If you are more into mediation, from now on, you can turn to Mediation. It is an outstanding collection of everything practical you need to know: from scanning the landscape, preparing the grounds, deciding on principles, to leading through the ups and downs of mediation, preventing mistakes and getting your value systems right.”

Peter Maurer, President of the International Committee of the Red Cross

“How might mediators facilitate the resolution of conflict by empowering the parties themselves to negotiate more effectively? Both academics and practitioners need this book: after surveying existing mediation practices and outlining relevant principles it provides thoughtful advice on how best to structure the mediation process and promote the parties' better understanding of their conflict and develop and assess alternative solutions.”

Robert Mnookin, Mediator and Law Professor, Harvard Law School and Program on Negotiation

“This book is essential for mediators and staff working in humanitarian, development, peace and security contexts. Having spent over 30 years with the United Nations in emergencies in Somalia, Rwanda, Burundi, Gaza, Iraq, and Syria, I have witnessed the consequences of conflicts. Today's world needs mediation both for prevention and conflict resolution. My one take‐away from the book is that mediation is an art, a skill that one needs to practice and can learn. I highly recommend this book.”

Panos Moumtzis, United Nations Assistant Secretary General; Executive Director, Global Executive Leadership Initiative, and former Humanitarian Coordinator for the Syria crisis

“As a negotiation adviser, I have often observed the critical importance of responsible mediation. This brilliant book offers the secret keys to delivering success for all sides.”

Kalypso Nicolaïdis, Professor of International Relations, Oxford University and European University Institute

“Without appropriate knowledge and preparation, mediation efforts often fail. The authors optimize the whole mediation process.”

Tetsushi Okumura, Professor of Management, Toyo University (Tokyo)

“The very subtitle of this wise and comprehensive guide—Mediation: Negotiation by Other Means—reveals a deep and unusual understanding of the intimate relationship of two important processes that are normally treated as wholly separate. Drawing on significant research and extensive experience across multiple continents, this distinguished international group of co‐authors will valuably enlighten readers who seek to employ this powerful third-party method of conflict resolution and management.”

James K. Sebenius, Professor at Harvard Business School and Director, Harvard Negotiation Project

MEDIATION

NEGOTIATION BY OTHER MOVES

 

ALAIN LEMPEREUR

JACQUES SALZER

AURÉLIEN COLSON

MICHELE PEKAR

EUGENE B. KOGAN

 

 

 

 

Logo: Wiley

I say nothing to one that I cannot say to the other, at the right time, with only a slight difference in emphasis and I report only the things that are indifferent, or known, or serve both in common. There is no reason for which I would permit myself to lie to them.

Michel de Montaigne, The Essays, 794B

ACKNOWLEDGMENTS

We thank all the women and men who have contributed to the theory and practice of mediation all over the world: mentors, colleagues, friends, researchers, and thousands of mediators and participants in seminars who influenced the content of this book.

We are indebted to our mentors and the pioneers: Graham Allison, Michel Barnier, Béatrice Blohorn‐Brenneur, Jean‐Pierre Bonafe‐Schmitt, Jeanne Brett, Guy Canivet, Hervé Cassan, Pierre Drai, Jacques Faget, Roger Fisher, Thomas Fiutak, Steve Goldberg, AJR Groom, Michèle Guillaume‐Hofnung, Serge Guinchard, Charles Jarrosson, Hans Kelman, Etienne Le Roy, Jean‐Claude Magendie, Peter Maurer, Michel Meyer, Bob Mnookin, Christopher Moore, Jacqueline Morineau, Mirko Nikolic, Bruno Oppetit, Gérard Pluyette, Simone Rozes, Frank Sander, Jim Sebenius, Jean‐François Six, Alan and Ari Slifka, Howard Stevenson, Larry Susskind, Sid Topol, Hubert Touzard, Bill Ury, Keith Webb, Andy Williams, Howard Wolpe, and Yvan Zakine.

This book would not have seen the light of day but for our colleagues and friends: the members of the Harvard Program on Negotiation, IRENE at ESSEC, the Kellogg Dispute Resolution Research Center, the Oxford Programme on Negotiation, including Liliane de Andrade, Myriam Bacqué, Stephen Bensimon, Christian Blanc, Linda Benraïs, Jean‐Michel Blanquer, Bob Bordone, Claude Bruderlein, Nicholas Burns, Tessa Byer, Paola Cecchi‐Dimeglio, Erica Chenoweth, Alain Christnacht, Christopher Cooper, Tim Cullen, Jared Curhan, Jocelyn Dahan, Owen Darbishire, Florrie Darwin, Pierre Debaty, Laurence de Carlo, Jacques Dercourt, Bruno Dupré, Martin Euwema, Luc Fauconnet, Lorraine Fillion, Pamina Firchow, Paul Fisher, Mari Fitzduff, Lior Frankiensztajn, Gary Friedman, Bruno‐André Giraudon, Don Greenstein, Jean‐Édouard Grésy, Jérôme Grimaud, Eric Guérin, Susan Hackley, Sheila Heen, Sophie Henry, Antje Herberg, Jocelyne Hervé, Jack Himmelstein, David Hoffman, Sergio Jaramillo Caro, Isabella Jean, Alan Jenkins, Ted Johnson, Sandra Jones, Peter Kamminga, Michel Noureddine Kassa, James Kerwin, Ihab Khatib, Marc Kiredjian, Anne Landois, Enrico Letta, Justin Lêvecque, Maria Madison, Joseph Maïla, Patricia Malbosc, Francesco Marchi, Liz McClintock, Gerry McHugh, Oliver McTernan, Philip Milburn, Jordan Morgan, Nicolas Mottis, Anaide Nahikian, Kalypso Nicolaïdis, Eugene Nindorera, Fabien Nsengimana, Charlotte Pailleux, Ricardo Perez Nuckel, Gabrielle Planes, Bill Rapp, Jim Reiman, Herve Remaud, Tina Robiolle, Monique Sassier, Veronique Schneider, Dan Shapiro, Linda Singer, Marianne Souquet, Guhan Subramanian, Arnaud Stimec, Christian Thuderoz, Joëlle Timmermans‐Delwart, Emmanuel Tronc, Michael VanRooyen, David Weil, and Andreas Wenger.

We thank Fiona P. Noonan for her contribution to the translation and to our researchers and assistants: Julianna Brill, Lara Cazemajou, Jacee Cox, Katherine DeCourcy, Michael Dumont, Autumn Galindo, Sarah LaMorey, Cécile Seguineaud, and Elise Willer.

Finally, we thank our colleagues, participants, and mediators in various institutions: Brandeis University, College of Europe, ENA, Ecole Polytechnique, Essec Business School, European Commission, European Institute of Peace, European Peacebuilding Liaison Office, European University Institute, United States Institute of Peace, Alliance for Peacebuilding, International Association for Conflict Management, Harvard University, Sciences Po‐Paris, French Ministry of Foreign Affairs, Saïd Business School – Oxford University, UNITAR, various universities, and mediation associations.

INTRODUCTION: Why Do We Need Mediation Methods?

Mediation includes four key concepts that will form the basis of this book: conflict, authority, the other, and methods. Let us explore these terms and how they interconnect with the purpose of this book.

Conflict

Conflict is an inevitable dimension of life. First, we all experience inner conflicts between antagonistic aspirations of different parts of our identity. Second, when we bring together groups of individuals, tensions may arise for many reasons: clashes of values and norms, resource allocation, definition or interpretation of rules, reward and sanction mechanisms, etc. Many causes trigger a conflict, which can deepen over time.

On the positive side, conflict is creative; it helps reveal how obsolete or unfair certain social arrangements might be. It expresses frustration in the face of perceived or experienced injustice, prolonged oppression, and denial of identity. Conflict provokes new questioning, shakes up established routines, inefficient returns, and can spur innovation. American civil rights activist Septima Poinsette Clark (1898–1987) has remarked: “I have great belief in the fact that whenever there is chaos, it creates wonderful thinking. I consider chaos a gift.” Conflict is the engine at the heart of “creative destruction” theorized by economist Joseph Schumpeter (1942). This is the bright side of conflict.

But, on the other hand, conflict is also destructive. Waged among groups – countries, organizations, businesses – and individuals, conflict endangers solidarity, cooperation, and mutual exchange; and thrives on selfishness, competition, and self‐righteousness. Conflict often generates aggression and inflicts suffering. It has a built‐in escalation dynamic – whoever is blamed first is provoked to retaliate, feeding a new assault of greater intensity that causes an even more massive counterattack, and so forth. Each side often looks to dominate and crush the other, while imposing their solution. As damages and victims accumulate, relationships shatter, identities are denied, time is lost, and resources are squandered. Conflict takes a deep emotional toll (e.g. sadness, anger, suffering) and inflicts significant material damages (e.g. wasted resources, property destruction). In the sphere of armed conflict, an even more detrimental result of conflict is the violation of human integrity and dignity (e.g. injuries, rape, death, massacre, and genocide).

This ambivalent reality of conflict – a powerful engine of change, but also an agent of destruction – creates concerns that all human societies address: how to manage conflicts? How to prevent them, mitigate them, resolve them, and even transform them? And who should intervene? This brings us to our next point.

Authority

Conflict resolution systems are often founded on authority. In private life, parents have the authority over their children and over the rules to address familial conflict. In organizations, the upper level has “formal“ authority – drawing on the official title or position in the hierarchy – to settle conflicts at the lower levels. In society, overall, the law, in distinguishing between what is legal or not, makes each person part of a system of conflict prevention and regulation. If, despite everything, two parties are in conflict about the interpretation of a legal norm, the judge is there to decide with all the authority conferred upon them by the law. In each case above, authorities are entrusted with the role of ending the conflict.

But authority shows its limits in contemporary society, owing to a combination of factors, including the rise of individualism; the erosion of moral, or religious, norms; the decline, renewal, or rejection of traditional authority figures – the father, instructor, professor, priest, police officer, etc.; the growing influence of liberalism and its deregulation; the democratization of societies and decision‐making systems; an increased transparency and questioning of hierarchy in organizations (i.e. “flat organization”); the decline of Fordist business as a bureaucratic organization; the contestation of legitimacies – scholarly, scientific, technical, legal, administrative – and biases – patriarchy, gender, race, ethnicity, sexual orientation – and, in return, the rise of participative mechanisms of consultation, dialogue, and negotiation.

The First Move: A Negotiator's Companion (Lempereur and Colson, ed. by Pekar 2010) summarized the tendency of this vast sociological movement: “impose less and propose more.” In conflict management, whatever the context, the involved parties hardly accept a solution imposed on them by an outside authority. There is, everywhere, a growing desire to stay in control of one's life, plans, and trajectory – including one's conflict and its settlement.

The rise of negotiation as a mode of joint decision‐making aligns with this shift away from unilateral, top‐down diktat. But what happens when negotiation fails and the parties are unable to define an agreement that satisfies both of them? One possibility is to fall back on an authority – a boss or a judge. Another is to invite a third party – neutral, impartial, and benevolent – to reignite negotiations, facilitate the exchanges, and empower the parties to explore the conflict, bring their essential needs to the surface, imagine possible solutions, evaluate them, and finally choose those to which they freely and mutually commit. This is, in a few words, what mediation stands for: it offers a pursuit of negotiation by other moves. It reinforces a trend where the law is first the law of the people (Lempereur 2011a, 2011c).

A mediator is not an authority per se. They do not have the power to make decisions. They do not coerce, choose favorites, and very rarely impose limits. On the contrary, they always seek to empower the parties. They facilitate, encourage, and motivate. Theirs is a strange art: the parties accept their presence at the negotiating table precisely because they have no formal authority over them. This is why, when mediation succeeds, the parties are more likely to recognize the agreement that they themselves produced – with the mediator's support – and discover the strength of this process of third party's facilitated negotiation, and its profound legitimacy.

The Other

Faced with conflict and rejecting the presence of an external authority does not necessarily mean that individually each party has full power to shape the outcome. The parties need to work together, and their cooperation constitutes an inescapable variable in the equation: as much as the parties are part of the problem, they are also part of the solution. Each party cannot ignore the other, just as the other cannot ignore them. Each owns a part of the story, likely contributed to what happened, and is therefore asked to feel responsible for overcoming the conflict.

This is why “the other” constitutes a fundamental theme in this book. In fact, putting the other at the heart of the exchange is essential for

  • each of the parties in conflict, who can develop empathy toward the other, i.e. put themselves in the other's shoes, so that both sides engage back and forth in a double move toward mutual understanding, where (i) each understands the other better and (ii) each is better understood by the other;
  • the mediator, who, instead of seizing ownership of the conflict, preserves both parties' control of their conflict and its resolution, through reciprocal recognition of the “two others” and hopefully by each other.

The mediator plays an intermediary role between the two “others.” The centrality of the other is evoked in the

  • past, a time of conflict, ignorance, or condemnation of the other, with different perceptions and opposing visions of “this” radically different other, separation and alienation from the other, creation of negative otherness;
  • present, a time of mediation, which facilitates a dialogue between the two estranged others, allowing them to analyze the similarities and differences between them in their narratives, in order to foster a mutual recognition of identities and needs, where each “other” might come back in renewed proximity with one another, and where this possible restored link builds some readiness to explore solutions;
  • future, which may still be uncertain but which can be built together by creating a common ground for a renewed relationship, one where the other is not simply present with me, but where the other sees themselves as having a future with me in it.

Integrating the other happens through deepening understanding, which requires active perceiving, i.e. a methodical use of listening and looking, and probing – which everyone thinks they practice well, but which can often be improved. The mediator's display of skilled understanding of the two parties is often the platform that enables both of them to understand each other.

Methods

Everyone can improvise and play the role of a mediator, and some perform it well: between one's brothers and sisters, between one's parents and relatives in a dispute, and between classmates, or friends, or colleagues at work. Chapter 2 addresses the question of “informal mediators.”

The fact remains that, except for limited cases, effective mediation is rarely well founded on instinct only. There is no doubt that some people are more gifted at empathy than others. They might be seen as naturals in benevolent listening. However, they may not employ some fundamental tools of inquiry and probing, or restating that the mediator needs to master before running a session. Learning such tools on the job or by trial and error can be a slow process, and, worst of all, sometimes the consequence of avoidable failure. Mediation is therefore a matter of methods: principles and good practices exist, tools are available, techniques are checked, traps are identified – all forming a practical body that everyone can acquire and implement (Lempereur, Salzer, and Colson 2007). As mediation experience grows, such methods need to be tested, refined, and adjusted in an ongoing circle of learning.

Our book integrates both methods and experience. As academics and mediators in the field, including in high‐stress/‐stakes/‐impact environments, we combine knowledge and know‐how, as we have practiced and refined them over decades through a worldwide practice for international organizations, governments, NGOs, and corporations. As a result, the models, tools, and examples this book proposes develop several possible methods for mediation. We hope this book will be

  • helpful, whether you are a potential or a professional mediator, an involved party, a lawyer, an adviser, or a stakeholder;
  • practical (but not simplistic), as it offers operational principles; it raises real problems, and proposes concrete solutions;
  • subtle (but not abstruse), as it invites self‐awareness, persistent reflection, a capacity to review actions, and change course;
  • comprehensive, as it approaches mediation in general, as a process, in what is applicable to most types of mediation – diplomatic, family, criminal, consumer, labor, corporate, etc. – even if each domain has its specificities (Lempereur 1999b, 1999d);
  • specific, because it is a book that opens to every reader the possibility of choosing the moves and tools adapted to their needs, experience, and context – to build their own mediation path.

Writing this book is also a part of a broader objective that transcends the dimensions of a single book. It is about helping to reverse a paradoxical trend: Why is mediation still so little practiced around the world while its potential is so great? Although many organizations utilize third‐party facilitators, mediation remains a relatively little‐used mechanism compared with the plethora of cases in court. Maybe there is not yet, despite the advocacy efforts, enough accessible information on what, concretely, mediation offers: how is a decision made, what are its advantages and limits, how it unfolds, what are its phases, what is a mediator's role, what can the parties expect, etc.?

This is what this book proposes to share with the reader, so that more people, according to their circumstances, consider mediation a useful approach to overcome a conflict or even wish to become mediators themselves.

An Overview of the Book

Chapter 1The Perimeter gives you an overview of existing mediation practices. What is the scope of mediation today? Whether they are informal, temporary, or institutional, or whatever their areas of action, mediators develop an increasing space in many sectors of life: personal, social, economic, administrative, and political. We paint a landscape of these activities, illustrating a wide variety of practices and models. This chapter highlights some variables of differentiation – before and during mediation – along with some guidelines for practice.

Faced with this diverse reality, Chapter 2 explores the Pertinence of mediation. What are its advantages and limits? In what situations should one choose mediation as a mode of action to resolve a conflict? Besides mediation, we present seven third‐party approaches that offer complementary wisdoms in the face of conflict. We also analyze two series of criteria that favor mediation: the first lists blockages that freeze the present; the second turns toward the potential of mediation for a renewed future among the parties.

What are some fundamental guidelines that mediators need to keep in mind to guarantee the quality of the process? Chapter 3 examines seven Principles of mediation: independence, neutrality, impartiality, fairness, confidentiality, respect for the law, and self‐determination of the parties. As we clarify these essential principles for practice, we also underscore possible tensions among them and how to address them. For example, how do we remain neutral while supporting the fairness of an agreement? How do we combine confidentiality and respect for the law?

Chapter 4 considers the Preparation of mediation sessions, beginning with pre‐mediation. Whether one is a mediator, involved party, or adviser, we prepare the essential elements before mediation. How to propose, refuse, accept, or, if necessary, impose a mediation? How to choose mediators? What does a “contract to mediate” ahead of a session look like? Whom to convene for a mediation? How, concretely, to prepare as a party or as a mediator? What modes of intervention to choose? And how to arrange the place where mediation happens? There are many questions – strategic, operational, or simply practical – to prepare for.

As we contemplate a mediation session, Chapter 5 lays out what we call the PORTAL, i.e. the introductory six initial moves to connect and to structure the mediation process:

  • Presentation: Establish contact between the parties and mediator.
  • Objectives of mediation: Clarify what mediation is and is not; what the mediator's role will be, and what the mediator expects from the parties.
  • Rules: Explain the guiding principles for the process, and obtain the agreement of the parties on them.
  • Time & Steps: Verify the availability of the parties, the calendar, and the completion date, and also outline the successive next phases in the mediation process.
  • Agreement: Check one last time that the parties have agreed to proceed as outlined.
  • Launch: Start the work on the conflict, the substance of the mediation.

The book then devotes two chapters to the methods that apply to the next phases in mediation. The first one concerns understanding the problems of the past, while the second seeks workable solutions for the future.

Problem‐solving in Chapter 6 explores the Past Toward the Present. Before venturing to resolve a conflict, we need to explore its background. Inquiring, probing, and restating, as well as managing emotions, become indispensable tools to explore. This stage of the process involves three successive moves, which sometimes overlap:

  1. Identify the Problems: Invite each party to tell their story of the conflict and raise their key requests.
  2. Deepen Our Understanding of the Problems: Through deep probing and understanding of the respective narratives and positions, try to spot the underlying needs, motivations, or interests that are essential to each party.
  3. Mutual Understanding: Work on reciprocal recognition of the causes of the conflict and of the current needs of the parties.

Problem‐solving in Chapter 7 leads from the Present Toward the Future. Once mutual understanding of the root causes of the problems and of each other's needs has been reached, the mediation then focuses on how to build solutions and scenarios in the future to meet the needs identified in the present. Here, three successive moves are useful:

  1. Invent Solutions: Brainstorm as many solutions as possible. How to come up with solutions for oneself and for the other in terms of quantity and quality? Here, the techniques of value creation and creativity will be presented, as well as possibilities for the mediator to suggest ideas.
  2. Evaluate Solutions: Formulate justification criteria to filter solutions that might work for both parties.
  3. Decide: If possible, summarize and formalize a reciprocal commitment, for which the next move is to ensure follow‐up.

The end of every mediation session focuses on the process of the next steps, and on the appreciation of people's engagement, whether they have reached agreement or not. US President Barack Obama used to say, “hard things are hard.” Successful mediation is no exception, and there will likely be numerous obstacles on the way. How to foresee and fix – or, at least, manage – them?

The final chapter, Chapter 8, explores potential Pitfalls, traps that the mediator needs to manage no matter how they emerged. Some mediators may have good intentions, but their instinctive behaviors can have negative, unintended consequences. We present probable causes of such behaviors and their risks, while suggesting practical approaches to avoid them. Other problems stem from the behaviors of one or both parties. Again, some of their moves, they believe, will serve their interests, but actually end up damaging the very process of mediation. Other challenges arise in spite of the parties' efforts. This chapter proposes methods for the mediator to overcome these critical moments in the interaction with the parties.

Our Conclusion illustrates the close links between questioning and ethics in the mediator's role. It suggests more than just a technique, but rather a philosophy for oneself and the other, for the mediator and the parties.

A final point on the book's format concerning examples:

  • We also add under this format practical suggestions or formulations that serve as an inspiration to help mediators develop their own methods.

May this book help mediators, parties, stakeholders, and everyone else facilitate the peaceful, constructive, and productive resolution of conflicts. Happy and impactful reading!