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Meaning of Space and its Use in the Mediation Procedure

by Desislavia Kamenova
May 2018 Desislavia Kamenova
The main purpose of this article is to outline the importance of proxemics at the various stages of the mediation protocol without claiming comprehensiveness. For this purpose, apart from purely theoretical formulations and determinations, the article also contains interim and partial results of exploratory study on the non-verbal communication in the mediation protocol practiced in the Republic of Bulgaria and predominantly in the Center for Agreements and Mediation at Sofia Regional Court and Sofia City Court. The interviews were held from October 2016 to the end of 2017 in Sofia. The interviewees were predominantly mediators, who practice mediation as volunteers at the Center for Agreements and Mediation at the Sofia District Court and the Sofia City Court. The coal of the research is to look how nonverbal aspects of the communication in mediation affects the quality of the protocol.

We will start with few clarifications, concerning the mediation in Bulgaria and what “proxemics” means.

Mediation is used in Bulgaria as an optional, out-of-court alternative dispute resolution method. Mediation in Buglaria is still not mandatory and judge can only recommend the case as suitable for mediation. Parties can decide weather to use it or not. The most active center in Bulgaria is Center for Agreements and Mediation at the Sofia District Court and the Sofia City Court. There are several EU funded prgrams going on to establish such Court annexed mediation centers in more cities with hope of sustainable development of their activities.

The concept of “Proxemics” was cointed in 1963 by the well-known American anthropologist Edward Hall, who explores cultural perceptions of space[1]. According to Hall Proxemics is "a science that explores how people use space and the effect that density of population has on the human behavior, communication and social interaction" [2]..

Very often we tend to underestimate the importance of space and the way we use it and perceive it. This is understandable because it is always around us and we are always within it. Velichko Rumenchev emphasizes that "Our everyday life happens within the space, and apparently the most difficult thing to see is the obvious - the space, it is the very least studied in terms of its importance for the communication and the extent to which it determines it" [3]. I fully share this thesis, which is confirmed by both personal experience and partially by the results of recent research.

Between October 2016 and December 2017, fifteen semi-structured interviews were conducted with mediators who mainly practice mediation at the Center for Agreements and Mediation at Sofia Regional Court and Sofia City Court in the Republic of Bulgaria. In order to avoid influencing the interviewees and avoid researcher bias, the same open ended questions were asked to each interviewee. At the end of the interviews more narrow questions were asked. These questions related to body language and the importance the mediators attach to non-verbal communication. All interviewed mediators elaborated on the subject of proxemics and its significance in the mediation process or protocol, in varying degrees of detail.

The interviewed mediators recognize the importance of the initial phase of the mediation process.  When asked about the preparatory stage of the mediation procedure, which consists of preparation of the mediator himself, as well as the mediation room even though mediators take into account the difficulties they have in terms of working conditions and accommodation. In general mediators at the Center for Agreements and Mediation at Sofia Regional Court and Sofia City Court in the Republic of Bulgaria do not prepare for mediation by reading the case. They avoid any pre-mediation case review in order to remain impartial and prevent the creation of pre-set attitudes which could prevent them from being impartial. 

There is also another not factual, but purely legal moment regarding the mediator's preliminary acquaintance with the case files when the case is pending in court annexed program. In Bulgarian legislature access to open cases is allowed to the parties involved, specifically authorized persons and their attorneys. Mediators do not have access to the cases, even though they are part of the personnel of the Center for Agreements and Mediation at Sofia Regional Court and Sofia City Court. Mediators do not have document certifying that they are mediators with the Center.

We re going to look more closely to the stages in mediation and how proximity appears and how significant could be in certan moments.

Place for Mediation Procedure - Mediation Room. Location of the furniture in the mediation room - table, chairs and auxiliary equipment.

According to Barbara Madonik "The environment in which mediation takes place can greatly influence the success of the mediation itself"[4]. Successful mediation is the goal of the procedure, therefore the factors of the space should not be underestimated. Factors such as: the spatial layout of the furniture, their shape, the size of the mediation room, lighting, the spatial arrangement of the parties, the creation of a secure and comfortable negotiating environment, balancing of the power and inspiring respect and mutual regard, taking into account the cultural differences concerning the space, use of auxiliary products, drinks, computers and the availability of internet if necessary, etc.

Barbara Madonik also recommends paying attention to the small details that could influence the outcome of the mediation procedure. From her long experience as a mediator, she emphasizes the importance of having the chairs in the mediation room to be the same to all participants in order to create a sense of equality for all participants. Likewise, if all chairs are not the same, they should not be grouped in order to avoid associations with opposing teams and camps.

However, the procedure must result in agreement and every element of the environment should lead the parties to cooperation, not rivalry. Because each person has respective preferences for perceiving information, some are auditory, some are kinesthetic or visual. This should also be taken into account by the mediator in preparation for the mediation room. There are people who need to move or change the posture of their body more often; for others it is very important to have conditions for easy perception of what is said, without noise and other irritating factors, and others prefer to take notes or to illustrate the information. The mediation room should be spacious, with windows for natural light and be ventilated before the procedure begins[5].

 The room in which mediation takes place is generally of the unfixed space type. Due to the informal and voluntary nature of the procedure there are no statutory requirements for the place and manner in which such space should be organized. There are also no mandatory requirements for mediation to take place in a building or a public building, such as the requirements with regard to the holding of court hearings.

According to Art. 133 of the Judicial System Act of the Republic of Bulgaria "The sittings are held in the court building at the seat of the court". According to paragraph 1 of that article: "In exceptional cases, with the consent of the Court Chairman, the court may decide to hold a hearing in another building[6].

If a court hearing is held outside the court building without prior consent of the Court Chairman due to circumstances that can be characterized as "exceptional", it follows that there will be a violation of the statutory rules and, accordingly, of the procedural acts committed during a court meeting.

Court rooms are furnished in the same way in all courts as regards to the spatial layout of the participants in the proceedings. The courtroom is a typically fixed space in which each participant has a place imposed by the practice. The judge or judicial panel is situated at the center, usually the table on which the judge or judges are sitting is placed on a podium which is the highest place in the room. In the old building of the Sofia District Court, the chairs of the judges were made of solid wood, the backrest was high and implied respect and deference. Always on the wall behind and placed above the chair of the judge the coat of arms of the Republic of Bulgaria is situated. It is a symbol that identifies and communicates with the audience, the primary function of the judiciary system. It is states authority, and justice is done in the name of the people. (Art. 1 and Art. 1a of the Judicial System Act)[7].

One of the interviewed mediators shared the feeling they had and considered that the coat of arms as a symbol of the state power had also an influence during the mediations, in a room where the same coat of arms was placed over the head of the mediator due to the fact that the room itself was previously used by registration judges.

The Mediator says that "Sitting under this coat of arms I felt sure" She also mentions that she used this symbol as an argument to call for feelings of love for the parties’ homeland and to create a more appropriate negotiating environment. She argued that the presence of the coat of arms in the mediation room also had an impact on respecting the mediator as soon as the parties entered the room. This may be a good point of recommendation and could be taken into consideration whether in the mediation rooms, especially when these are mediation programs within individual courts, coat of arms of the country to be placed in a high and visible point.

Moreover, the mediation procedure itself is an alternative disputes resolution method to the conventional justice. The principles of mediation are called upon to preserve justice in the dispute resolution.

Interviewed mediators note some difficulties they encounter in their work related to the location of the mediation rooms, as well as those related to the furniture itself and the conditions for the procedure. This may be due to several reasons.

The first is that the mediations themselves take place in the building of the Sofia District Court, where no separation of space - offices, halls and other auxiliary premises to serve the needs of the study - 2016-2017 of the mediation procedure. In the future, the idea that dispute resolution, which is voluntary and involves negotiation between countries, may need to be organized in a way that makes it possible for the parties to reciprocal concessions and compromises. Nowadays, as mediation halls are used workrooms adapted for the work of magistrates and officials in the judiciary. This poses little difficulty to mediators. It is difficult to organize the space in the presence of more than five people in the mediation room. There are no facilities for parties to take notes if there is agreement from all participants in the procedure. They also pay attention to the location of the halls for mediation in the court building itself.

One ot the mediators pointed out:

 „…….. the fact that you go upstairs with them and walk along the corridor with them, waiting for someone to get you. Before it was you  who meet them. It's like having guests come and go together to shop at the supermarket and shop for whatever you want. "/ (Quote from an interview with a mediator).

The mediator believes that this affects the authority of mediation in general and, in particular the particular of the mediator who conducts the procedure mediation. It can be concluded that the current premises for conducting mediation procedures with the Sofia Regional Court  and the Sofia City Court are rather "socio-fugal" types of spaces, as Hall has categorized them and do not predispose the participants in the procedure to a more productive communication.

The mediation rooms should be of the other type of spaces - "sociopetal" - to facilitate communication and give the participants a sense of comfort, security and at the same time inspire authority. There are efforts this situation to be changed and mediation rooms to be furnished with round tabled and more accommodation for all in the procedure.

Part of the Proxemics is also the location of the parties to each other in the mediation procedure. Because what is mediation if not a communicative process that should be facilitated by the space available to the participants in these negotiations. Everything matters. Even sometimes the very place that one of the parties wants to take can be a message. One of the mediators talked about the following case:

"I usually ask them if there is any problem sitting next to each other, because the room does not allow for more comfortable distribution. I asked them with a smile, with a little sense of humor, to give them a preference. Most people in that case, say that there is no problem. And in this case, there was no problem either sitting down like this, but the defendant pulled his chair so far back behind the plaintiff's back. It somehow suggested to me that things would not go well."(Quote from an interview with a mediator)

 It should be noted that an essential part of the non-verbal communication and as part of the kinesics is the orientation of one body to another body.

 The conclusions of Cook and Summer, referring to the orientation of the leading speakers quoted by Velichko Rumenchev indicate that the orientation of ninety degrees is the orientation of a partnership, while the zero is a rivalry[8].

For this reason the type of the table in the mediation room is also of particular importance. The round and oval table allow everyone to sit in a way that does not create the feeling that one person is at the forefront and therefore somehow guides or controls the procedure. The round table also gives a sense of equality, which is also one of the principles of mediation. It can be said that it is preferable for the mediation room to have an oval or round table to create sensation and predispose the parties to mutual concessions and consensus and to provide the mediator with the conditions to facilitate the process and not to feels like a captain of a ship from which the participants expect leadership and negotiation guidelines.

Therefore, it is preferable to have elliptical or round tables in the mediation halls. In the absence of such mediation, it is preferable that the mediator is the one who, in the most delicate way, can meet the parties and place them in the mediation room. In the absence of a place and presence of a rectangular or square table, it is preferable for the parties to be placed closest to the table and the accompanying consultants and admitted third parties should be located, if possible, at either side or behind them if there is no possibility all have access to the negotiating table. Thus, each of the parties will have the opportunity to consult with the accompanying persons, without interfering with the other party, exercising this right when it is needed.

Preparation of the Mediation Room

The mediator should be well prepared for mediation. He/she should not underestimate the preparation ofthe mediation room and be well informed about the number of potential participants in the mediation itself, the technical equipment, if necessary, the provision of refreshments, the possibility of smoking, as well as other details related to the situation and the mediation room. As stated above, if it is found that the mediation room is inappropriate, a more appropriate place should be provided. If the room does not allow everyone to sit comfortably, it should be considered whether it is better if everyone agrees to postpone the meeting, taking into account the number of participants when determining the place for subsequent mediation. This can create difficulties and leave a bad impression in one of the parties in relation to the Mediation Center or the specific mediator, but that would be the lesser evil than to conduct a mediation session in too narrow and unfavorable conditions and an air room in which some will sit at the forefront of negotiations, and the others will be scattered in the room at random. Such a situation may even harm the parties rather than help them. There will be parties that will have no visual contact with the other participants in the procedure. It is better to postpone a misplaced mediation than to conduct one under extremely inappropriate conditions which could leave the parties with feelings of a chaotic organization and incompetence from the very beginning.

The mediation setting should not be underestimated as well as the availability of all amenities - equipment, access to water, availability of space for smoking, and the possibility for each party to leave the place of mediation without any special difficulties. The mediator must be ready to take responsibility for the unpleasant situation and take an adequate and quick decision, and not to be afraid to declare that mediation can not be carried out because of the lack of conditions and to take into account his/her error that he /she required preliminary information on the exact number of persons involved in the mediation. Better to have a common "enemy" - poorly organized conditions for mediation, in the face of the alternative - a lack of conditions that can leave a sense of chaos and a lack of equality between the parties. Details matter.

Years ago, a judge told me that a complaint was filed against him that at a court hearing he showed a bias by looking only at one of the parties. He had to write long explanations, and later he himself realized that the monitor from which he controlled how the court record was handled was put on the side of the complaining party, which in fact prevented the party from realizing a visual context/contact with the judge. That left the party the wrong impression that the judge looked only at the other party. The party felt unequal and considered the judge to be biased. Such a situation can also occur when a mediation session is  conducted.

 The mediator should therefore have at least preliminary information on the number of parties, the venue for the mediation and arrive earlier than the parties. Interviewed mediators consider it inappropriate to have prior information about the dispute because they consider it a threat to their impartiality and neutrality.

 I think preliminary information is a valuable helper so that the mediator can at least create an attitude of the type of dispute to be held and the number of participants. Perhaps the mediators’ responses are also dictated by the fact that the mediations conducted at the Center for Mediation are already pending lawsuits after a judge has recommended the parties to try this way of settling disputes. In mediations conducted by mediation centers in Bulgaria, which are not Court annexed  Programs, more detailed information is collected on the case and the parties are able to elect their mediator in person. In the Agreement and Mediation Center of the Sofia Regional Court  and the Sofia City Court, the parties usually do not choose and have no prior information about the mediator who will conduct their mediation. This poses greater challenges to the mediator who must create a good first impression without relying on a pre-established attitude in the parties in regard to his/her personality and professional skills. The mediator is also not supported by the fact that mediation is not a well-known legal institute with established respect and prestige in Bulgaria at present.

The question of the extent to which Bulgarian society recognizes even the concept of "mediation" has not been investigated. The lack of such reliable data does not entitle us either to deny or to say with certainty that society knows what mediation is, and even less to say that mediation enjoyes any authority in society.

This also puts a difficult task before the practitioners now because it depends on what image of the mediation they will show to the public and whether they will recommend this method of dispute resolution to their relatives and acquaintances.

Preparation  during the mediation session - rest and emergency situations. Termination and suspension of the mediation procedure

Due to the informal nature of the mediation procedure at a request of the mediator, the parties or other participants in the procedure, the latter may be interrupted for a certain period of time or postponed to another date.

 There are no formal requirements as to the time the next meeting should be held with the initial participants. It is possible for the parties to decide that at a second meeting they do not wish to be accompanied by their lawyers or third parties. Discontinuation of mediation may be necessary due to:

 Need for a few minutes rest if the mediation session lasts more than sixty minutes. Each party could summarize for itself what has been achieved so far in the procedure, as well as consult with its lawyer. The parties can have a refreshment and relax, as well as adapt for the continuation of mediation if lengthy talks emerge. It is advisable for the mediator to specify that it is possible to take a break and ask the parties to alert him/her if they feel they need to interrupt mediation for a short period of time.

Sometimes because conflicts are being solved in the negotiation process, conversations become hot, emotions reach limits that can lead to loss of communication between the parties. Therefore the mediator should be particularly sensitive with regard to the emotions of the parties and, if he/she considers there is a threat the conversation to escalate to unacceptable intonation and the parties to say things they will later regret, to interrupt the mediation. It is possible for the mediator to ask the parties to calm down and if that does not help, to demand that he/she himself interrupt mediation for a short break. This will help to calm down the passions and to not put unnecessary risk to the procedure and what has been achieved so far;

When an emergency occurs one of the participants in the procedure is not feeling well and there is a risk for his or her health, or if one of the parties starts to behave aggressively and threatens verbally and/or non-verbally any of the participants in the procedure. I believe that an action plan for such emergencies should be drawn up in advance. The mediator should have contact with the officers of the judicial guard who are at the entrance of the court and ask them to cooperate in such cases. In mediation that takes place in out-of-court mediation centers, you may need to consider contacting security companies that if necessary, assist the mediator in performing his/her duties.

When assessing the need a mediation procedure to be interrupted, the mediator should rely heavily on the non-verbal signals of the parties that can reasonably motivate him/her to consider that there is a need of a recess. If one of the parties begins to overly change their posture, increase gestures and/or the tempo or reduce it, this may be an indication of fatigue. If one of the parties become extremely restless and there is a change in the color of the complexion, sweating or other non-verbal signs that will cause the mediator to take action and interrupt the mediation or at least make sure that the person feels well and is able to continue the mediation session.

 Depending on the circumstances the mediator may decide to interrupt the session and hold separate meetings with each of the parties. The parties are more honest and calm when participate in separate meetings with the mediator. This in turn gives the mediator valuable information that would help the progress of the negotiations. It should be noted that the information shared during the independent meetings is confidential and the mediator may share it with the other party only if there is agreement on the party that has given the information in question.

The Mediation Act also provides for hypotheses whereby the mediation procedure is suspended and terminated. Generally suspension is a temporary interruption of mediation until the termination of the mediation proceedings is terminated.According to Art. 14 of the Mediation Act, the mediation proceedings shall be suspended:

1. by common agreement of the parties or at the request of one of the parties;

2. at the death of the mediator;

3. The Mediator shall withdraw from the procedure in circumstances that would cast doubt on his/her independence, impartiality and neutrality.

The mediation procedure is terminated in the following hypotheses:

1. by agreement;

2. by mutual agreement of the parties;

3. upon refusal of one of the parties;

4. upon death of a party to the dispute;

5. upon termination of the legal person - a party to the dispute;

6. at the expiration of 6 months from the beginning of the procedure.

The mediator 's most desirable hypothesis to end mediation is to reach an agreement, which is also his goal. According the Mediation Act in Bulgaria the mediator is not responsible for the implementation of the agreement reached. It is the responsibility of the parties, who should be conscientious in fulfilling their obligations, as well as exercise the rights they have, also in a conscientious manner.

The Mediation Act in Bulgaria provides for the possibility that the agreement reached in the mediation procedure can be approved by the court. This is a separate security process whose purpose is to give force to the agreement. The court approves the agreement reached after its confirmation by the parties, and if the latter does not contradict the law and good morals. If a party does not fulfill its obligations under the agreement approved by the court, the affected party may request enforcement against the defaulting party. This saves the parties a long and heavy trial.

Trusting in the ancient wisdom that "Beginning is more than half of the whole" I believe that particular attention should be paid to the commencement of the mediation process which includes as an important element the spatial position of the parties in the procedure, the material and technical equipment for conducting the procedure. Without overemphasizing the importance of proxemics, sufficient attention should be paid to it and its importance, and this can also lead to an increase in the initial confidence of the disputants in the potential of the mediation procedure, especially when it is not well known in the society.

 The use of space is an important element in any communication, which also applies to the mediation procedure.

 



[1]Wikipedia, access on 03.16.2017, https://en.wikipedia.org/wiki/Edward_T._Hall

[2]proxemics. (n.d.). Collins English Dictionary - Complete & Unabridged 10th Edition. Retrieved March 16, 2017 from Dictionary.com website http://www.dictionary.com/browse/proxemics, online 16.03.2017

[3]Rumenchev, Velichko, Nonverbal communication in the public speaking and the business interaction, St. Kliment Ohridski University publishing house, Sofia, 2006, p. 559 (available only in Bulgarian)

[4]Madonik, Barbara G., I Hear What You Say, But What Are You Telling Me?: The Strategic Use of Nonverbal Communication in Dispute Resolution, Jossey-Bass, 2001, page 99 

[5]Madonik, Barbara G., I Hear What You Say, But What Are You Telling Me?: The Strategic Use of Nonverbal Communication in Dispute Resolution, Jossey-Bass, 2001, page 105-118

[6]Judicial System Act, accessed online 07.15. 2017 at Ciela net, link

[7]Judicial System Act, accessed online on 07. 15.2017 ?., Ciela.net,

[8]Rumenchev, V. Nonverbal communication in the public speaking and the business interaction, St. Kliment Ohridski University publishing house, Sofia, 2006, p. 587 (available only in Bulgarian) 

Biography


Desislava Kamenova, is lawyer at Sofia Bar Association  with 16 years of practice in litigation and company law and volunteering mediator at the Agreement and Mediation Centre, Sofia since 2012. The centre was established in 2010 and has been functioning at the District Court of Sofia and the Sofia City Court, Bulgaria. Currently finishing her PhD study, Ms. Kamenova is writing a thesis on ”Nonverbal communication in court procedures and alternative dispute resolution” at Sofia University "St. Kliment Ohridski", Department of Rhetoric. She is interested in alternative dispute resolution, focused on mediation, the proportion of verbal and nonverbal communication in the mediation procedure and improving the communication quality between conflicting parties. She is focused on exploring how nonverbal communication affects the quality of the procedure of mediation and how the mediator could use body language in practice. She is working on developing a course in Nonverbal Communication in Mediation.



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