Lawyer at GD&A Advocaten
Mediation in administrative matters is one of the most unexplored forms of mediation. Due to its special characteristics, including the fact that the parties at the table are not equal since one party has a unilateral decision-making authority, it cannot simply be fitted into the existing legal framework. One of the questions that arises in this regard is whether the mediator who acts in administrative matters should also concern himself with the emotions of the parties, or whether the mediator can limit himself to a rational-procedural facilitation of the conversations.
In what follows I approach this question dialectically. On the one hand I examine the proposition that emotions in administrative matters do not belong at the mediation table; on the other hand I dwell on the conviction that ignoring them hinders a durable solution, if not makes it impossible.
WHY THIS QUESTION MATTERS
Mediation has acquired a solid legal foundation in the Belgian legal system since the Act of 21 February 2005 and was further thoroughly reformed by the (“Waterzooi”) Act of 18 June 2018. In the years that followed, mediation practice has branched out to numerous domains, including administrative matters: disputes with or within public law legal persons and institutional structures.
It is within this domain that the question of the place of emotions presents itself particularly sharply. The professional context and the public dimension bring a strong pressure towards rationality. Practice teaches however that that same pressure can lead to an essential aspect of the conflict remaining out of sight.
Administrative disputes are thereby rarely what they appear at first glance. They are characterized by, among other things, an intertwining of business and policy-related differences of opinion, power dynamics and interpersonal frustrations that are rarely named as such. The parties involved formulate their dissatisfaction in formal terms, while beneath the surface a field of unspoken emotions lies hidden that forms the actual obstacle to a solution. Mediation in administrative matters furthermore also distinguishes itself by several specific characteristics, foreign to the other forms of mediation. One may think of the public character of the legal person involved (with the ever-present risk of disclosure), the often multi-party structure and an understandable tendency towards formalization of the discourse.
WHAT THE LAW SAYS, AND WHAT THE LAW LEAVES OPEN
Article 1723/1 of the Judicial Code defines mediation as a confidential and structured process of voluntary consultation, guided by an independent, neutral and impartial third party who facilitates communication and supports parties to reach a solution themselves. The material scope of application is thus limited to "disputes". The question whether mediation necessarily presupposes an already existing conflict falls outside the scope of this contribution, but deserves separate attention, among other things in light of policy mediation. Article 1724 confirms that disputes involving a public law legal person also qualify for mediation.
The legislator thus determines that the recognized mediator facilitates communication. In mediation practice this task is generally not limited to the mere content of the conversation. Also, the manner in which parties express themselves, relate to each other and react to each other, is relevant to truly understand the communication. It is incumbent upon the mediator to ensure that parties not only hear each other, but also truly understand each other. Accordingly, the mediator must involve all communication dimensions, think of the substantive, the expressive, the relational and the appellative, in his task. The mediator uses appropriate questioning techniques for this purpose.
From this it follows de facto already that his role cannot be reduced to merely procedurally guiding a conversation. After all the expressive and relational dimensions can (and will) be emotionally charged. The law thus not only leaves the mediator room to explore those dimensions, but also gives him the task to do so (at least implicitly).
EMOTIONS DO NOT BELONG HERE — OR DO THEY?
In the field of practice the view exists among a part of the practitioners that emotions play a subordinate role in mediation in administrative matters. That view deserves to be taken seriously, before it is critically questioned.
The reasoning is the following: administrative conflicts concern jurisdictional issues, procedural shortcomings, policy-related differences of opinion etc. They would thus be rationally analyzable questions. The parties moreover act as professionals, not as private persons; the dispute thus situates itself at institutional level. The mediator should consequently concentrate on the business interests.
This reasoning is generally further strengthened by three arguments. The first concerns neutrality: emotional analysis could impair the impartiality (or better multi-sided partiality) of the mediator. The second is methodological: opening emotional themes could derail the process. The third is practical: public actors are generally little inclined to show emotions in a professional setting.
These objections reflect a real concern, but rest on the generalized assumption that administrative disputes always lend themselves to being reduced to merely business differences of opinion, and disregard the fact that parties who act in an administrative capacity do not cease to be people with frustrations, fears and expectations that co-determine their actions.
WHAT I MYSELF LEARNED WHEN I DID LISTEN TO THE EMOTIONS
We already arrived at the observation that the legal definition of mediation implies that the mediator pays attention to all factors that hinder or promote communication, including its expressive and relational dimension. A mediator who systematically leaves these dimensions out of consideration risks missing an essential part of the story.
Practice confirms this. Recently I acted as mediator in a case in which the dissatisfaction was initially expressed in purely procedural terms. The one side referred to a lack of transparency, insufficient communication and the feeling of having been placed before accomplished facts. The other side emphasized the complexity of the case, the policy considerations that had to be made in the framework of the general interest and the necessity to ultimately cut knots. Both readings were understandable, but did not bring the conversation further.
The first joint sessions yielded little movement. The parties involved remained cautious and avoided naming what was really going on. There hung tension in the room, but that tension received no explicit translation.
I therefore proposed to go into caucus. Only in those separate conversations did the underlying frustrations surface. There lived frustration about the feeling of not having been taken seriously, about communication that was experienced as distant, about the suspicion that participation had only been organized formally. On the other side the pressure to act within a complex normative framework was expressed, as well as the concern about precedent effect and the feeling that one's own carefulness was being called into question. Only when these elements could be spoken out did it become clear that the conflict did not exclusively revolve around the formal decision, but also around recognition, trust and the quality of the relationship.
THE CAUCUS: DOUBLE CONFIDENTIALITY AS A CONDITION
The caucus is a confidential conversation between the mediator and one party, outside the presence of the other. About its deployment opinions diverge within the mediation landscape. In my opinion it is a powerful instrument, but extremely delicate. It works only when it is deployed at the right moment and under strict conditions.
The added value of the caucus lies in the double confidentiality that it creates. The first layer concerns the legal confidentiality of the mediation itself (article 1728 Judicial Code). The second layer concerns the confidentiality of the separate conversation: what is said during the caucus remains confidential with regard to the other party, unless express permission is given to share elements, or these elements are themselves raised by the actors involved.
That double protection creates a space that is difficult to reach in the plenary session. Parties are inhibited there by the presence of the opposing party, uncertainty about their mandate or the fear that statements will later be used against them. In the caucus those inhibitions can fall away. The mediator can subsequently, with permission, bring the underlying interests back to the plenary session in abstracted form. The caucus thus functions as a communication channel.
The deployment is however not without risks. The caucus can put the trust in neutrality under pressure, and the mediator can (consciously or unconsciously) start steering the conversations on the basis of confidentially obtained information. This touches upon a fundamental question: where does facilitating the conversation end and where does directing the solution begin?
To manage those risks, strict conditions best apply: express consent beforehand, clear agreements about confidentiality, a balanced deployment of separate conversations and a continuous awareness that the information obtained can color the perspective of the mediator.
The ratio legis supports this approach. The legislator has introduced confidentiality as a facilitating condition for communication. The caucus reinforces that function by adding an additional safety layer and thus constitutes a consistent further development of the confidentiality principle that underlies the mediation legislation.
THE FINAL THOUGHT OF THIS DIALECTICAL THINKING EXERCISE
The thesis that emotions play no role in mediation in administrative matters rests on a reductionist conception of both the administrative conflict and the legal task of the mediator. It misjudges that administrative disputes often contain an emotional underlayer that forms the actual obstacle to a solution.
The antithesis, that emotions form an unavoidable and relevant reality, also in administrative matters, appears to find support in both the legal text and practice. The law tasks the mediator to facilitate communication in all its dimensions; by opening the emotional layer the way can be cleared towards solutions that otherwise remain out of reach.
The caucus offers a suitable methodological framework for this purpose. As a separate conversation under double confidentiality it creates a safe space in which parties can express their emotions without fear of repercussions or loss of face.
In my opinion the recognized mediator in administrative matters must be aware that the emotional dimension is virtually always present. It is up to the professional skill of the mediator to sense when and how that dimension must be explored. The recognizing, exploring and managing of emotions is thereby not a sign of weakness, but an expression of professional competence and a necessary condition to truly fulfill the legal task.
The systematic ignoring of the emotional dimension is not merely a missed opportunity, but a methodological gap that can considerably reduce the chances of success of the mediation. The caucus is no miracle cure, but indeed a valuable instrument that, provided it is deployed deliberately and under strict conditions, can make the difference between a deadlocked mediation and a supported solution.
With this it becomes clear once again that the mediator in administrative matters, but equally so in other mediation domains, is by no means a "white rabbit" that merely works on communication. He is a professional bridge builder who fathoms the legal and administrative complexity, without also losing sight of the human dynamics.
Non est ad astra mollis e terris via.
Jory Brabants D'Hooghe