Mediation

Etymology and origin of the word

The word “mediation” - whatever the assumptions with the root med - is a word of Indo-European origin . It was used by the Romains, in particular for the word the Mediterranean , then medium , middle finger . They could hold it, by association of ideas of the name of this disappeared country, the Médie, adjoining country of the grounds of old the Perse become the Iran. However, the word mediolanon indicated in Celtic Gaulle the center of a territory. Then, perhaps, this root medi would be it of Celtic origin…

Indeed, the root medi was present in old names of cities of the Roman empire, for example:

Mediolanum, from now on Milan (city of the center)
Mediolanum Santonum, from now on Holy

With an identical direction, Latin medulla indicates the center, marrow, used for example in medullary insufficiency or Medulla oblongata, relating to the central nervous system.

If the Indo-European origin is exact, the root med would have the direction to reflect, which can result in to help with the diagnosis to solve and would be also found in the word Médecine.

Concerning the bond with the word medicine , it is advisable to pass through the Roman where in mythology a girl of Esculape, god of medicine, is named Méditrine which is associated with the festivities Meditrinalia of October 11th in Italy.

The helping Printing works, the word mediation would have appeared in the French Encyclopédie of 1694. Its birth is however identified 400 years earlier, around the XIII° century, to indicate a human intervention between two parts.

In French, it is in the dictionary general and curious about César Master of Rochefort 1684 that the word appears then in fureti2ere's dictionnaire universel edition of 1690, then in that of the French Academy in 1694. But it is resulting from construction media-tor made to translate the concepts described in the letters into Greek of Saint Paul to I er century. With the II eme century Apulée de Madaure uses mediator. Mediator and " mediacion" are used relatively often in the Middle Ages.

Prehistory and History of the mediation

The mediation is a manner of intervening in a difficult situation between people (physical or morals). It implies qualities of " carry-parole" on behalf of the mediator.

In the conflict field, more specifically, the mediation can seem to have several stories. According to certain authors, it is practiced for a very long time, as a long time as thirds intervene in the conflicts of others. But it is clear that if the intervention of third in the disagreements of any nature is practiced for a long time, it is not a question of the mediation implying Neutralité, Impartialité and independence.

During the History, steps of the mediator type can be identified in the Théâtre in particular, to present or represent the way in which the Hommes behave between them, and to make pass from the messages. It is however less mediation than about recourse metaphorical.

Many authors make association between approaches of the médial type and the mediation itself, that it is by quoting a design of soft justice , returned arbitration decision with the Saint-Louis or the manner of the king Solomon, the Conciliation (which concerns the legal procedure), or of the Négociation (which implies all the involved parts, y.c the third facilitator).

So that there is Médiation in the field of the resolution of the conflicts, it is appropriate that there is:

of the parts with a disagreement
a mediator,

third neutral as for the solution,
impartial in its interests and implications,
independent in its relations,
and guaranteeing the confidentiality of the process (and not of a procedure), contrary to the public sitting, with publicity, of the legal system.

However this design of the mediation, as a discipline with whole share… appears only at the end of the XX°. It consists in creating an extension of the accompanied contractual discussion, taking into account a disagreement which prevents the parts from having a serene exchange so much so that they could prefer the confrontation (law of retaliation, law of the strongest…) or outward journey to seek a constraining Arbitrage (legal system, course arbitration…) in order to impose a decision.

The mediation thus aims at reinforcing the contractual Liberté. It instruments the Volonté parts to find a new agreement compared to a preceding agreement which is disputed - tacit agreement (or conceived like such by one of the parts), like the social contract or actually signed at a given time.

Reinforcing contractual freedom, it comes to bring to the parts of a disagreement the means of resting a situation which makes problem, to think and seek best possible solutions of it to find or find an area of agreement. So the mediation instruments also the quality of communication, at the present of a relation and registered in a relational anticipation, contrary to the legal system which, being based on the past and being based on a design of the rights and obligations stated before, decides between or divided.

We can thus identify a starter of the mediation in the Culture of ancient Greece, with the philosophical current aiming at making reflect the people on their relations to the others and, consequently with oneself. The Maïeutique instrumented this research. Indeed, the tool Maïeutique aimed to make it possible a person to express her self-knowledges - in fact which would have been acquired in former lives. The Philosophe put this know-how into practice so that a person can reflect and express the better itself . This practice aimed developing personal liabilities, by the control of the Passions, and at making reflect each one on its master-slave relations of oneself and with the others (cf the Republic, Livre IV, Plato).

Thus, the philosopher accompanied a reflection, allowed a person to position, make the choices with which it was going to be able car-to be determined, by aiming at the passage to the act. The teaching which was thus exempted by the rhetoricians became antagonistic with that of the Sophistes which were satisfied with the relation of effectiveness of the techniques of communication (with their applications in particular in the lawsuits), less the dimension of what we call today the personal development, that is to say the teaching contribution of the act mediator of the Philosophe. We can also underline the existence of a guard of the not-citizens, the Proxène, which however did not inspire the function of the Médiateur of the republic, this the more so as this function does not exist in our civilizations much more nationalist.

At that time that we can qualify the prehistoric one of the mediation, in what it was not conceptualized as such, two currents were formed:

that of the intervention of third to make emerge the individual responsibility, the engagement released of passions (and thus in particular in conflict situations)
that of the intervention of thirds which were subtituaient with the people and went in the direction of imposed decision making, déresponsabilisant the people.

So that the Mediation takes again direction, was needed a strong element:

the Recognition of the individual as anybody having a potential of responsibility. It is with Rene Descartes, inspired by the mishap of Giordano Bruno, in search for rationalization of the relation of the Man with the World, itself beginning again of the reflections led by Pierre Abélard and of the Old Greeks, such as Pythagore, Socrate, Plato, which we owe this formalization.

One needed also the ethical reflections, more laic, expressing the search for individual autonomy of Spinoza, the result by the Universal declaration of the first human rights, inspired by the work of Jean-Jacques Rousseau on the Social Contract. It was necessary that authors theorize individual nature differently; one needed the advance of work of Freud; one needed the invention of the Sociologie and that of the Polémologie; one needed also an expression of the rights equivalent recognized to all humanity: with the women and the children, so that the mediation can be led by a respectful third of the people.

One still needed the identification of the limits of the right and all the systems of Arbitrage S…

But without the Recognition of the people as individuals being able to make its own decisions, being able to be accompanied at the time of the difficult situations to leave itself the conflicts, the Mediation cannot exist. The Droit comes from the idea that the individual must be constrained for good to act; the mediation emerges from the idea that the individual can, constantly, to learn how to control itself. The Droit comes from the mistrust which the leaders have screw-àvis of the people, while the Mediation comes to manufacture confidence.

It is thus only with the XX° century that the first works on the mediation appeared. They are today increasingly many and sometimes contradictory. Nevertheless, they all are impregnated of this research to reinforce the potential of decision making of the people. In the world of the company, we observe since four or five decades, of the formations on the Délégation. The formations of personal Développement also strongly contributed, with their often therapeutic stammerings, with the Reconnaissance of the individual.

In fact, our time seems to have begun again the way given up here approximately 2500 years.

It is thus with the XXI° century, that we start to write the History of the mediation and the mediators. The title of the work entitled the Time of the mediators , by Jean-François Six, takes all its direction.

However, it is not astonishing of reading that the mediation would have a History. In fact, they would be rather stories. Because according to the point of view of the author, according to whether it positions, without intention, certainly, as a Idéologue, Religieux, Juriste, Psychologue, even Ethnologue, the mediation arises to him under an angle which can make him believe in the founded good of its thesis. We can thus distinguish the principal currents from thought which influences the designs of the mediation.

Definition of the mediation of the private conflicts

Legal matter (civil or penal), the mediation is framed juridically. In the institutional field, the legal framing is more moderate. In the civil field of the resolution of the disagreements (relation of the contractual type, written or not), the mediation is in free exercise. One speaks about civil mediation or conventional mediation. Since the end of the XX° century, the professionalisation results in clarifying the conditions to exert with the use of the term (not a title) of mediator.

In the field of the resolution of the conflicts, the mediation is regarded as a multi-field approach (see the university formations, for example) or a discipline with whole share. It acts of an approach reinforcing contractual freedom, even enabling him to be maintained. Consequently, compared to the right which is a way of abandonment by the person of its capacity to decide, to speak and to seek a solution, the mediation appears more as one natural way while she is regarded paradoxically as an alternative way of resolution of the conflicts.

The mediation, as a discipline, proposes a process, made up of stages adaptable to the context, and operating rules and of communication whose mediator is the guaranteeing one. It aims to succeed, without obligation of result for the mediator, with the most satisfactory possible solution for the parts - not for the third mediator, contrary to the result of a judgment which is appropriate for the reasoning of the judge. It is about a mode of accompaniment of the people whose objective is their common decision making.

A maintenance led by a mediator can make it possible part of clarify its positioning and to adopt a step, a strategy, a behavioral change to solve the exposed disagreement.

All in all, the mediation is a framework where expresses the desires, aspirations, desires, waitings, projects, needs and the interests of the people in conflict. It consists in a process of assistance to the individual and collective reflection aiming at the most satisfactory decision for the parts. An individual accompaniment can also have the character of a mediation when it consists in allowing the person accompanied to moderate to hold a discussion or a negotiation vis-a-vis the other part which would have refused the traditional mediation.

Conventional mediation and legal mediation in France

The conventional mediation made its appearance in France as of beginning of the year 80 first of all in spontaneous associations of support of the parentality. In the step of mediation known as conventional, the mediation freely and is spontaneously chosen by the parts which carry out themselves the choice of the third mediator.

The legal Médiation was founded starting from the decree of July 22nd, 1996. This form of mediation falls under the course of a legal procedure. It is accepted by the parts in the course of ordered procedure, and by the judge who designates and elects the mediator. In this case of acceptance in the course of procedure the judge returns a ordinance of mediation . The initial duration of the mediation cannot exceed three months. This mission can be renewed once, for the same duration, at the request of the mediator, the judge or parts.

Differences with the related practices

In short, the mediator supports the emergence of a common solution, the conciliating makes proposals according to his framework of reference or that which he considers being that of the parts in conflicts, the negotiator represents one of the parts, the referee or judge returns a decision which imposes a solution.

mediation and negotiation

The difference between mediation and negotiation is simple: the negotiator is of party taken. He represents the interests of a part. What implies that the negotiator will seek to lead to a solution giving satisfaction to the part which it represents. The mediator is not of any party taken. He accompanies the reflection by the two parts while enabling them to find an agreement. This agreement is defined several manners, either while taking as a starting point the approaches by negotiation gain-gaining , or according to the principles of the contributive Négociation, or, as higher indicated most satisfactory possible , even the least unsatisfactory possible between the parts.

mediation and conciliation

The differences between the mediation and the conciliation lies in the role of the third… In the main thing, the third mediator helps the parts in their reflection and their decision: it makes emerge the decisions of the parts; in conciliation, the conciliating third proposes solutions with the parts.

mediation and arbitration

The difference between the mediation and the arbitration lies in the fact that the referee returns a decision which is essential on the parts which chose the arbitration. A still marginal practice developed in particular with the the United States, within the framework of the ADR (Alternate Arguments Resolution), combining the intervention of a mediator who, if he does not manage to make emerge a solution can become referee, by preliminary Convention with the parts or the agreement of the parts to which he proposes it or who asks him. This process is then named Med-arb .

Development of the Mediation in the World

The current evolutions are drawn mainly from the organizations like UNO and from the European Parliament. The Swiss and the Canada present, one by its history of neutrality and the other by an excellence of its management, an interesting evolution of the place of the mediation in the very whole company including the world undertaken. It is in the process of becoming a culture. ,

It is remarkable to note that the evolution relates to a will determined to minimize " the antique Roman design and guerrière" , " accusatoire" , that we know in our rights. How can accept itself that two parts are always in opposition… and especially must remain " on their faim" with the pain? Worse, than one institutes procedure rules and organization which establish them, maintain them, amplify them, that becomes the roof!

The question is to organize repairs, the wounds, incomprehension… of re-establishment of wellbeing… of recognition, reintegration, cure… from where the term of repairing justice .

Designs of the Nobody and practices of the mediation

Being the resolution of the interpersonal conflicts, the mediation is inevitably influenced today by the various designs of the person. These currents of influence can give the impression that, contrary to the thesis above, the mediation would have a History. But in fact, it is clear that the mediation, as a discipline aiming at the accompaniment of the resolution of disagreement, could emerge only with the Reconnaissance of the Nobody as such.

Thus, the mediation is associated with the manner of conceiving the interpersonal relationships, even the origin of the Man, his evils and its potential autonomy to solve its conflicts:

legal - with the repair of a damage or the recognition of a responsibility considered sometimes as culprit,
- with the forgiveness of a psychological fault, one fished,
- with the therapy to obtain a cure,
and behaviorist - with the training of new behaviors vis-a-vis a change.

However, the design that each one can have of the person influences its action if it is mediator, according to the values which are " in the middle " of its own beliefs or motivations. It interferes on the process (for some " procédure") of mediation and, consequently, on the solution which comes to conclude the mediation, in a more or less voluntary way (on behalf of the parts) and durable.

Profession Mediator

The exercise of the activity of mediator is regulated in no country. There does not exist any exclusiveness in field of exercise. In France, the diploma of State of family mediation (DEMF) mark a tendency to the sectorization without legal requirement to be able to exert. The mediators remain still free to organize themselves and the obligations do not reach with the freedom of exercise and choice of a mediator.

Professional Mediator

A mediator general practitioner presents normally an insurance individual of Professional Civil responsibility (RCP) - Obligation made by the professional Room of the mediation and the negotiation, which is not always the case, in particular for associations of mediation which have a group insurance. It is formed with transverse competences of the mediation and can thus intervene in all the types of disagreements of the type raising traditionally of the Civil law.

He is requested by the parts - or only one which requires of him to make the shuttle or to contact the other part (or others). In this case, the mediation is known as " conventionnelle". It can be solicited within the framework of a judiciarized conflict, and there it is about a legal Médiation.

family Mediation

In France, the sectorization of the mediation continues to make debate within the professionals and especially related professions (mainly legal, marital welfare workers, councils, family, personal movements of the organizations working in the CIF, UDAF, etc). However, if a diploma of State were obtained by the influence of associations of family Médiation, this one does not give any exclusiveness for the exercise in the mediation in this field.

Ethics and deontology in mediation

Common points of engagements of the mediators resident in the fact that the mediation must be exerted in all independence. The mediator has an obligation of average not of results. He must behave in manner Impartialité and neutrality. He engages on the confidentiality of the exchanges and request to the parts to engage there.

The differences relate to the references of the exercise of the mediation, the transversality of competences, the ethical which rises, according to the Employers' federation of the Mediation of the exercise of the mediation.

The various speakers in mediation worked out charters. Some, generally inspired by the Network of the Mediators of Company in the Rhone-Alps (France), or of Amély association, refer to the right.

The family mediators, organized in particular within the Association for the Promotion of the Family Mediation refer to the right and psychology.

The Clause of mediation

The clause of mediation can be introduced into all the Contrat S. It lays out that the signatory parties plan before any recourse to a legal procedure to call upon a mediator. This contractual obligation must be respectful relative tendencies with the Abusive clauses.

The Médiateur is considered not as a natural person but through a moral person (Company, association, chamber of commerce, employers' federation), which can be agreed by the parts in the contract.

This clause can a fortiori be introduced into an agreement of mediation, thus laying down the case where the parts would have difficulties in respect the agreement (which is then an new agreement), in particular in the circumstances of change of situation.

The agreement of mediation

In the conflict situations, the mediation requires the free one consententement and the capacity to decide. It aims at a durable agreement founded on engagement and relational quality.

The quality and the perenniality of the agreement are classically the balance of satisfaction as for the solution. The agreement is based on the sincere effort of recognition at the same time of the people and the respective Intérêt S, including/understanding the anticipation of the risks of ruptures of the agreement, the difficulties encountered for its application, with, sometimes, the forecast of a possible return in mediation (Arbitration clause) or, when the agreement is juridiciarisé, the inclusion of measurements against that which would break this pact.

The parts can choose that the agreement is not juridiciarisé (either written in legal form) or is not judiciarisé (or approved by a judge). The agreement can remain under private signature. Nevertheless, written and signed by the parts, it will not have of it less the character of a Contrat. According to the cases, it could be question of simple a Compromis, of a Protocole of agreement, of a Transaction…

Fields of application

the extent of the fields of application of the mediation is such as one could see it being melted and disappearing. But it is precisely because it has the richness of true a discipline in human resources, at the side, for examples, of the Sociologie, the Management or of the Histoire which it is locatable in many fields. It is thus also possible to conceive an approach mediation (or médiale) of a human situation, of a work (literary or cinematographic) .

The professional mediators, general practitioners, identify several fields of application. It exists in all currents of mediation, of which some (such in the family Médiation where associations asked for and obtained a diploma of State), a common identification of the fields of application:

disagreements between private individuals (natural persons or/and moral persons) out of civil matter:

family, separation, inheritance - one identifies here in particular: marital Mediation, family Mediation, patrimonial Mediation…)
schooling
vicinity (Mediation citizen)

disagreements between private individuals and moral persons (Mediation consumerist):

consumption
construction
work

disagreements in the companies (Mediation of company):

internal relations
moral harassing
breach of contract

economic disagreements between firms (economic Mediation)

competition
marks
customer/suppliers

disagreement enters the public services and their usagères and users (administrative mediation)

Generally, the mediation applies everywhere where there is transmission to know by a neutral and independent third, everywhere where a contractual relation was established.

Pierre-Yves Monette, Former lawyer, federal Mediator of Belgium To advise honorary with the Cabinet of S. Mr. the King College of the federal Mediators, presented in 2000, in Bamako, a reflection on the various mediations .

Advantages of the mediation

the mediation calls some with the personal liabilities and the freedom of assent of each part;
the parts define the methods of the mediation, with the mediator to which they entrust the responsibility for the guarantee of his good progress;
it adapts to the various contexts;
it is door-close: a confidential process to which the parts and the mediator begin;
it is economic, in time and money: less expensive and random that a power struggle or a legal procedure;
it falls under relational reality: taking into account or not durable durable character of the relations between the parts;
it integrates the reflection and the creativity of each one, opens with a spirit of contribution for the resolution of the disagreements and the problems;
it has advantages which exceed the situation in question: allows to examine the aspects of a disagreement and to anticipate the inherent risks with the implementation of the agreement;
it goes from relational quality to the negotiation: integrate a creative process;
it goes until the concluding of an agreement;
the mediator presents professional guarantees.

Work on the mediation and the training of mediators

Jean-Louis Lascoux: Practical of the mediation, an alternative mode with the resolution of the conflicts, edition ESF, 2001 ISBN 978-2710114550, 2° ED. 2003 ISBN 978-2710116141, 3° ED. 2004. - ISBN 271011657X, 4° ED. 2007. - ISBN 978-2710118596

Works on the mediation

Fathi Ben Mrad: Sociology of the practices of mediation: Between principles and competences, edition Harmattan, 2002. - ISBN 2-7475-2968-1
Beatrice Blohorn-Brenneur: Justice and mediation: A judge of work testifies, edition Cherche Midi, 2006. - ISBN 2749105110
Arnaud Stimec: Mediation in company, Dunod edition, 2004. - ISBN 2100071513, 2007. - ISBN 978-2100507665
Michele Guillaume-Hofnung: Mediation, edition Which do I Know? PUF, 2005. (3° ED.) - ISBN 2130548717
Carole Younes and Etienne Roy, Mediation and cultural diversity: For which company? Editor: Karthala, 2002. ISBN 2845863314
Philip Milburn: Mediation: Experiments and competences, edition the discovery, 2002. - ISBN 2707136271
Jean-Pierre Bonafé-Schmitt: Mediation, edition French Documentation, 2002 - ISSN: 0015-9743
Jacqueline Morineau: The spirit of the mediation, edition Eras, 1998 - ISBN 2865866580
Jean-François Six: The time of the mediators, edition Threshold, 1990 - ISBN 2020120755
Bibliography of French works on the mediation, sight of Portugal

Related disciplines with the Mediation

Other uses of the word mediation

data-processing Mediation - work of consultants, council

Mediation in telecommunications - process which consists in collecting the data of use (in particular outgoing calls) of the elements of network (in particular automatic exchanges), to incorporate them and format them to create tickets of taxation intended to be invoicees.

therapeutic Mediation intermediate process of transitionnality and symbolization,

administrative mediation: means tested to solve part of the conflicts between the citizens and the public service. It does not have the claim to replace the sovereign action of the State, which must be able to keep the means of imposing its will by administrative decisions. Which decisions guarantee respectful procedures of the rights of the users, in particular by the dedication of the right to be heard and by the introduction of grounds for appeal.

References

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