- What requirements do you think a good mediator should have?
Any mediator should have preliminary completed a certified training course on general mediation of at least 200 hours which includes both theory (elementary principles on communication, conflict, psychology and law) and practice (role-play and practice analysis). More generally, any mediator should develop “soft skills” such as active and empathic listening, non judgmental and non adversarial approaches, being oriented on the relationship and people interactions more than on facts.
- What training do you consider most adequate to become a good mediator?
As mentioned above, a training that is certified by the professional association(s) of mediators and which combine both theory and practice, focusing especially on soft skills (how may I behave as neutral in the middle of a conflict or to prevent it, instead of being solely oriented towards solutions).
- In your opinion, what legislative measures would be necessary to effectively promote mediation in general and business mediation in particular?
I am not sure that promotion of mediation would be effective through legislative measures. Being a voluntary process (and not proceedings), mediation cannot be imposed by the law. However, once embodied in the law (e.g. in the Federal Code of Civil Procedure, in Switzerland) as a method preventing or resolving disputes other than court litigation, its implementation could take place through compulsory information provided by judges both in civil and commercial matters.
- What are the benefits of resolving a dispute through mediation rather than through the courts or arbitration?
In essence, the benefits of resorting to mediation instead of arbitration or litigation are costs : not only financial costs (lawyers and court fees) as compared to the outcome (even in case of successful litigation all costs and expenses are generally not recovered in full) but also ”personal” costs (stress, loss of energy, anxiety, physical illness) and those inherent to the subject matter (for example in business disputes, loss of opportunities, lack of confidentiality).
- What is the most complicated aspect of mediation?
Mediation is a paradigm shift: most of people have been educated to resolve conflicts through adversarial and confrontation schemes, most often playing the “blame game”. It is therefore generally difficult for those participating to a mediation to adopt a fundamentally different behavior, consisting in collaboration and nonjudgmental attitudes. I observe this everyday in my mediation sessions, whether related to commercial, family or workplace disputes.
- What conditions should a citizen or enterprise take into account in order to select a good mediator?
An enquiry should be made to determine whether the prospective mediator has acquired and developed solid competences and skills as well as substantial practice in mediation (which is sometimes not evident to ascertain) in the field considered. In commercial matters in particular, the prospective mediator should be personally interviewed about his/her mediation style (evaluative or non evaluative, using transformative or narrative approach, problem solving method, etc.) in order to select the most appropriate person under the circumstances.
- Do you think that mediation is an institution already implanted in our country? Or do you think that it has not been fully accepted by the citizens?
I cannot answer for Spain. Generally speaking, and for the reasons described above, especially the difficulties to achieve a shift of paradigm through this dispute prevention/ resolution method, mediation is subject to some resistances and fears. Fear of its actors to face the conflict and deal in person with it, fear of judges and attorneys of being deprived of their “natural” functions. But also misunderstanding on the aim and methods used. Nevertheless, by contrast, I have also noted in my practice, especially in family mediation – where mediation is developed the most –, the motivation of its users is to save the costs of lawyers and courts.
- In your opinion, what is the future of mediation in Europe as an extrajudicial method of dispute resolution?
Mediation in Europe has been subject to a Directive which has been implemented here and there with some success. I would personally say that we are only half way. Significant progress has to be made in order to achieve recognition. Mediation not being panacea, it is nevertheless essential, to ensure its development, that full, complete and objective information be provided through workshops, awareness training to both lawyers and non-lawyers by certified, experienced and qualified trainers.
- What advice would you give to those who think of mediation as a future profession?
I would recommend, for those who are interested therein, patience and obstinacy for a non guaranteed outcome. In any event and for the reasons expressed above, mediation cannot be considered as economically and financially viable.
- What is your opinion about online mediation? For which conflicts would online mediation be most useful?
I am not in favor of online mediation because, in my opinion, mediation is based on direct communication and exchange, face to face, which “on-line” resolution does not enable. One may at most think it suitable for small claims and consumers disputes.
- What is the work of an international mediator?
My work as international mediator is more oriented towards promoting (and training) mediation instead of practicing as such, in view of the low level of interest therein, business people favoring more arbitration than mediation in (international) commercial matters.
- What does a family mediator do?
A family mediator deals with a variety of family disputes, for example, generational and inter generational conflicts, inheritance disputes or more frequently family breakups. To speak about my own practice regarding family breakups, I generally commence a mediation by a one hour private session with each spouse to establish rapport and verify the adequacy of the process to their need, and, also important, to determine what are their primary needs, if any, to feel comfortable in the common session(s) to come. During joint sessions, we work on the needs and interests of the spouses. The objective is generally to enter into a divorce/separation agreement. I always take some time for venting those emotions that are present. I also work on budgets which I ask each spouse to prepare at home. It is a very important task not only because this makes them aware of the financial consequences of the breakout but also this enables them to express their concern and fears in this respect.
- What is criminal mediation? And civil and commercial mediation?
In Switzerland, criminal mediation is possible only for criminal offenses done by minors. It is largely used in the canton of Geneva, for instance, where certified mediators are regularly appointed by the Tribunal of Youths, to determine whether an out-of-court settlement is possible. The rate of success is nearly 80%. Civil mediation, by contrast, is not really privileged by courts in Switzerland. It is quite developed in family and workplace disputes but on a conventional basis whilst commercial mediation, despite efforts made by local chambers of commerce (which enacted, like arbitration, the “Swiss Rules on Commercial Mediation”) have not really attracted business people.
- What do you think is the key factor so mediation can become a regular extrajudicial method of conflict resolution in the international and business fields?
The dissemination of information on the mediation process and approach, as alternative, may contribute to better understanding and confidence of potential users to have recourse thereto. Some efforts at these two levels should be undertaken in order to achieve a change of paradigm. Business people and lawyers should more often believe that mediation does not exclude arbitration and vice and versa. They are complementary.
- Do you think mediation could be a solution to the widespread workload problem of the justice system in our country?
I believe so should this be the situation in Spain provided necessary efforts are made for promotion of mediation as an efficient and cost effective solution. In my country, for instance, although courts are overloaded, the level of trust in the Swiss judicial system is quite high so that the need or suitability to resort to mediation is not apparent. Moreover, the judiciary conciliation has been redesigned in the recent Federal Code of Civil Procedure in order to achieve efficiency, undermining thereby the mediation process whose principles are also embodied in the Code.
Please, describe, the work of the organization to which you belong in the field of mediation.
With two associates with long standing practice in the field of family and workplace mediation, we set up a professional partnership under the name of Esprit d’entente (literally “cooperation spirit”), active in civil, family and commercial disputes. We are daily engaged in these fields, as mediator or ombudsman and sometime as conflict coaches. Some of our time is also spent doing mediation training or awareness courses to business managers or even ordinary people. Lastly our efforts are also developed in promoting alternative dispute resolution.
Geneva, February 2016
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