The Belgian Latvian Business Club in cooperation with the Belgium Embassy in Latvia, the Law Firm VARUL,
the Riga Graduate School of Law and the Stockholm School of Economics in Riga will hold a seminar on the topic: “Mediation – an efficient tool for business conflicts”, that will take place at the Stockholm School of Economics (Strēlnieku street 4a) on 23 May at 9.00 am. 
The seminar will demonstrate international experience in mediation and alternative dispute resolution with the aim of encouraging businesses (local and foreign) in Latvia to use mediation as the proper dispute settlement procedure. The seminar will highlight the existing problems and provide solutions, taking into account the upcoming Latvian Law on Mediation. Finally the seminar will be followed by a panel discussion on the use of mediation in Latvia for business conflicts.

The referents of the seminar include international mediators, academic and practitioners and it will be scheduled the 23rd of May from 9:00 till 1 :00 p-m. as follows:

Introduction

Tools and Methods of Alternative Dispute Resolution (ADR) in Commercial Disputes (Re-negotiation, mediation, arbitration).  Frank Diedrich, Professor at Riga Graduate School or Law (Germany) 

Latvian Law and practice of Mediation. Kaspars Freimanis, Certified Insolvency Administrator, associate at the law firm VARUL (Latvia)

Break

Belgian Mediation Experience:

Law and Certification. Barbara Gayse, Senior Expert of the Belgium`s Federal Commission of Mediation (Belgium) 
15 years of B2B mediation in Belgium. Gérard Kuyper, Lawyer, mediator and a Member of the Board at bMediation (Belgium)

Break

Only chances, no risks when using mediation? Experience and Use of Business Mediation
in Germany. Arthur Trossen, International expert, trainer, and a practitioner in all fields of mediation (Germany)

Selected Issues in Cross-Border Mediation. Frank Diedrich, European Institute of Mediation (Germany)

Time: 23 May 2013, at 9:00 am.
Venue: Stockholm School of Economics – Soros Auditorium (StrēlniekuStreet 4a, Riga)
Fee: Students LVL 5, BLBC Members LVL 10, others LVL 20.
Registration at Belgium Chamber of Commerce via e-mail: E-Mail
. The seminar finishes at 13h00 and will be followed by a social gathering with a snack and a drink.

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How many passes can you count?

The problem of focussing could be observed in our trainings before already. Students intend to comment single sentences and facts they observe during the mediation. This way of focussing is not mediation like. It becomes an obstacle for mediators, as they are going to loose the view on context and on the story behind. Context and the story behind are more important than single sentences and single facts. The whole picture is the means we should work with.

Now in that video above, the observer focusses the passes. He oversees the trespassing gorilla. In IM trainings it became a crucial content to teach mediators methods how to observe and perceipt things the best way. We devide observes in groups where one group is the cinema visitor. Cinema visitors do not have to check more than context and story behind. Its always amazing to see the different conclusions of cinema visitors and other oberservers. But of course there are more methods how to train attention and focussing. However a mediator, who passed those trainings, would have seen the gorilla. He wouldn’t be able to answer the question about passes. What we see is that mediators are just humans also.

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 More mediations!

Do you know how to get more mediations? Learn during a workshop from a mediator/ marketing expert how she managed to get a successful mediation practice!

Strengthen your skills and knowledge!

Workshops on family mediation, workplace mediation, environmental mediation and other topics will contribute to deepening of your professional expertise. Do not miss it!

Latest insights in the use of psychology in mediation, techniques for precise listening, group mediation like the Matroesjka, will contribute to the mediator’s effectiveness! Other topics include: Cultural specifics in the area of ADR

Factors of effective mediation – skills, personality, talent, gender questions, experiences, age, opponents, case, environment, process.

The importance of the person of the mediator, including mediation leadership will be addressed. And many, many more interesting topics!

Look for the website for more information in the coming weeks when panelists have been selected.

EMNI award

The first EMNI award will be launched during this 4th EMNI Conference for those who have contributed to the innovation and development of our profession or its further social awareness. Please candidate your favorite mediator and send an email to E-Mail.

Low prices

In view of the crisis the Conference fee has been kept to a minimum: € 198 for early birds and a special fee for students of € 100. In view of the crisis a special low cost fee for participants from Eastern Europe can be .

Please contact Frantisek Kutlik E-Mail.

Beautiful Bratislava

Bratislava is beautiful and cheap: you can find a good hotel for just € 25 a day! Low cost flights through Vienna or directly to Bratislava facilitate your journey to this nice city along the Danube river.

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Mediation mostly is offered to be an alternative to court procedures. That is what customers hear from everywhere. Does it help them applying mediation? I doubt it does. The demand on mediation still is low. Of course it is increasing slowly. But in fact there are many more mediators than mediations everywhere. Although the need for mediation appears to be infinite cases still are rare. While mediation is growing in America for example, in Germany it still is far away from economical success. What we do is trying to establish a product. Unfortunately there are mainly the professionals creating this product. The customer is not really involved in genesis. Do you think we care about the customer’s needs sufficiently? Of course we know the results of conflict resolution can be better by mediation. We know that mediation can fit the needs of resolving the conflict. But we also have to focus the customer’s resources how to get there. Mediation aims to improve the atmosphere of constructive debate. What is the customer’s wish? To understand this, we have to learn about her/his view on conflict resolution. Its not to think what would be fine but what is appropriate to the customer. For her/him the main question is: “Why should I take an alternative, while the claimed solution is right and the other one is wrong?”

Alternatives are offering choices. We usually can chose either or. I wonder if there is really a choice between mediation and court procedure. For sure it is not if we share the customer’s view. Understanding the dynamic of conflict, the simple truth is:

Mediation is not an alternative to court procedures because it is a consequence coming out of it.

Mediation is sole and what is sole cannot be an alternative. But there is another hint discernible, when talking about consequences. A consequence is a next original step and not an alternative. Understanding the difference helps mediators offering mediation. It also helps the customer demanding it. It explains why and when parties are able to change their strategy from confrontation to cooperation. That would be a condition to step into mediation voluntarily. The decision must be done in front of mediation. That means the first step of getting to yes is situated outside the procedure of mediation. From the customer’s view it is just a part of the journey through conflict resolution. It’s just a next step. Will it be worth to go and to take all the efforts and risks? Will it be appropriate to meet the enemy and talk with him? Does that concept fit in our conflict culture while politicians claim themselves “We do not negotiate with terrorists?”. Why should citizens behave different? The answer is easy. It’s because politicians simply are wrong and human beings themselves.

Advertisement

Let’s have a look on how we typically advertise mediation. What people get aware sometimes sounds like: „Try the mediation. Doesn’t matter if it will fail. You still can claim justice at the court!“ This sounds like a double bind, doesn’t it? Not only from the customers view it matters indeed if the trial will fail. Costs will increase and the litigation following will become a bit more complicated. The stuff to be concluded will increase. Especially in family cases juridical facts will change frequently while time is passing by. Judges are afraid of that. They learned the conflict might escalate. The frontiers between the parties might become stronger. In fact the conflict develops independently from any procedure rules and from the procedure chosen. The customer will focus the outcome for sure. S/he will also focus the investment necessary to achieve results.

I doubt it is enough convincing a customer by an offer where the outcome is completely open. That’s a trap of mediation. As solutions will not come up before phase four, its impossible to provide an idea why the result should be better. The only thing a mediator can promise is the idea that there might be a solution at the horizon coming up. Not more than likelihood that this will be. The mediator will answer: “It depends on you, whether you will find a good solution or not”. It sounds like a bad joke. “I would succeed for sure” will be the stereotypic answer. “But it will be the other side boycotting a good solution. I experienced how stubborn and undiscerning s/he is.” Having that in her/his mind a customer will ask himself: „Why choosing a risky alternative and not taking the shortcut then to immediately go to court?“ I think he is right when court always is seen the last instance. If you also do believe that the court is the final instance of conflict resolution, please check why offering mediation. However, this kind of advertisement sounds weird. It is not really convincing. There must be something else that makes mediation attractive enough to pay for.

Conflict evolution

Seen from a strategic point of view, the steps for choosing mediation are to be gone one after the other. Prof. Gerhard Schwarz from Austria once explored what he called the conflict evolution. It describes the conflict how it naturally is developing. There are 5 different steps to go before you encounter the mediation:

• Escape,
• Destruction,
• Subordination
• Delegation,
• Compromise and
• Consensus.

You might imagine a staircase, which has to be climbed stair by stair. Since there are stairs to climb, there is a development expressed like evolution. Consensus is the last stair. Since it is drawn on top, some mediators want to believe mediation is a top leveled way of conflict resolution. I wouldn’t like to see that. There is an assessment expressing an ethical aspect that is not naturally reflected by people who decide how to solve their problems. For them efficiency might be the primary concern. Efficiency is an important issue, since parties want everything but definitely not to get lost while the adversary is seen to be the winner. I wouldn’t believe it comforts parties to know that their loss was built on higher ethical values. I think parties in conflict are not keen on making experiments without a need to do so. Hence the advertisement I quoted at the beginning really is not convincing. No wonder if the demand on mediation still is low.

To learn about the convincing causes, we need to look deeper on the mechanisms of conflict evolution. Conflict evolution is based on two different strategies, the confrontation and the cooperation. Both are excluding each other. While escape, destruction, subordination and delegation belong to confrontation strategies, compromise and consensus are cooperation strategies. The switch is on delegation, which might become something like an interface between confrontation and cooperation. Delegation happens for example where people go to court. It seems to be important to state this strategy is situated on the ladder of conflict evolution below and not above the consensus, where mediation can be found. The upper level indicates already that mediation is not really an alternative you can choose randomly. An alternative would be on the same level. Mediation is a step of evolution though.

Following the idea of conflict evolution we learn that mediation is another step required to climb the next level of the ladder of conflict evolution. According to that insight an advertisement might be improved. Fitting to conflict evolution theory a promotion will sound like: “Try the litigation. Don’t matter if it will fail. Mediation is possible at least.” It looks like a paradox. But it’s a fact. Consensus can be stronger than any rules. We know that rules and law are obsolete if people are unique. People always are free to conclude something better. Unfortunately they do not engage that freedom. What are the obstacles?

Conflict evolution enhanced

To understand the customer’s behavior, we have to step below the “escape”-stair, which is the first level of conflict evolution. Escape is at the beginning of confrontation strategy. It therefore might also be seen like a switch, which might become something like an interface between cooperation and confrontation. Because of that switch we have to complete the evolution by adding a crucial first step before. Humans are cooperative in principle. Hence people primarily solve problems in a cooperative way. At least they try. Since cooperation is a way of conflict resolution also, we should enhance conflict evolution to complete the picture. Level one of the enhanced conflict evolution will be the attempt of cooperation. On that level parties try to find the easiest way to conflict resolution. Level two is of an increased energy. The level of escape starts as soon as cooperation is expected to fail or not possible for other reasons. There is no other bottom for getting in confrontation. Mostly the parties experience that cooperation is not possible because of the adversary only. They are convinced of confrontation. Angriness, resistance or helplessness assists the way of thinking. Seems not to be the best moment to offer mediation. A disposition to think about cooperation in general should be indicated first. The reason for confrontation has to be removed therefore. As long as it stays, each offer of mediation will advise cooperation where parties still have in mind or where they still experience that cooperation is not possible. Offering mediation now makes Parties wondering: “Why should we cooperate? Cooperation failed already and the opponent evidenced sufficiently before that cooperation with him is impossible! Beside that s/he first should apologize!”

Changing strategy

Offering mediation as an alternative effects like a double bind. On the one hand mediation is recommended. On the other hand it is degraded the same time, measured by the stairs of conflict evolution. Remember, mediation originally is situated at the top of evolution not somewhere in between. Whilst it stays somewhere in between confrontation will stay a valid option. Mediation might be seen an interim step although in fact it is the ultimate step to go. However it seems that parties feel comforted since they will not get lost of confrontation. Confrontation is secure. Cooperation is nothing more than just a chance, pity.

A mediator by the way will feel the consequences, when parties in their mind don’t stop confrontation. He will have to break the mediation when it is not possible to drive parties along cooperation. He knows that cooperation is the most important expression of voluntariness. It reveals readiness for negotiation.

Sometimes it happens that parties still strongly believe in winning the fight although they applied mediation. This might happen, where the judge has forced people to join mediation or where people have been convinced by an advertisement as such quoted at the beginning. The more it happens when there is a lawyer advising parties that they will become the winner for sure in case of a court decision. Mediators intervene persuading parties to mediation. Sometimes they fancy mediation. Sometimes they try to convince parties from the opposite. “Don’t be stupid, mediation is better, cheaper and quicker than court procedures”. It’s a counter advice. How does that feel if we slip into the customer’s mind? Doesn’t it sound like promotion of washing powder? Who will believe it? I think people are too much blunted by commercials to really feel convinced through phrases. Beside that the assertions are not waterproof. It depends on court, on the case, on the way chosen for of mediation and many more criteria to finally assess whether mediation is cheaper, quicker and more effective than a court decision can be. In Germany for example, court relies on best reputation. Justice almost is predictable. That occurs as one of the most challenging obstacles why mediation is not demanded, as it could. Beside promotion it also is not convincing when mediators are valuing ethical aspects and assess the customer’s behavior. I wonder if statements like: “Mediation is the most noble way of conflict resolution” or “Mediation is improving the atmosphere of constructive debate and therefore a must” are plausible for somebody who just want to receive what s/he think is justified. I even wonder if those seeming arguments fit to the face of mediation, which is a procedure beside assessments and away from a mediator’s opinion. However, experience taught, that convincing people that way doesn’t really help. The reason for that is hidden in tricky strategic thinking.

Imagine you have been declared war and the enemy unexpectedly suggests peace talks. What would you think? When in confrontation the problem is that any peace offer will be seen as a part of the fight. An olive branch might become an ugly trap then. There is a risk on the one hand and evidence of weakness and exhausting on the other hand. All of those perceptions become meaningful in the sense of confrontation strategy. Hence people find good reasons to continue confrontation. It seems to be impossible to shift confrontation in Cooperation without causing suspicion.

Exploring what makes cooperation acceptable for adversaries we’ll find sense in game theory. Game theory is a discipline of mathematics caring about strategies. Strategic thinking makes planning comprehensible. Eventually there is a strategy. A strategy describes the way to reach an aim. Since the goal is winning, there are basically two ways how to get there. One is by cooperation; the other one is by confrontation. It depends on conditions which way is seen the best. If only a single winner is allowed, the frame is limited to a so-called null-sum-game. In such a game it would be stupid to cooperate, as this definitely is the wrong strategy. As long as the null sum game is running, cooperation is not useful and therefore not possible. We have to respect that people are not able to cooperate when in confrontation.

The other strategy achieving the goal of winning is cooperation. Cooperation is solely useful, where winners are not limited. Then parties don’t have to manage the adversary to become the loser. They are supposed to focus own interests initially independent from the other side. That kind of game is called cooperative competition. Sometimes it is called a positive-sum-game. In that game, confrontation would definitely be the wrong strategy.

Knowing about the games capturing strategies, we just have to change the game when we want to change the strategy. Coincidentally this happens more or less automatically where mediation is offered like an isolated and separated procedure. When parties switch to mediation, they switch strategy the same moment. The game, which is designed by mediation, doesn’t cause any need for parties to confront.

Now it becomes a bit clearer, what parties need to do for changing the procedure of conflict resolution. They simply need to change the game. For that they need to know the reason why to stop the old game and why to change it. That needs more than a phrase. It needs some good reasons why to stop or avoid the confrontation. Confrontation not always is worst strategy. Especially when the conflict is escalated, reasons to change the strategy must be very strong. Proposing mediation like a trial marks a chance for sure. But they also are weakening mediation when it is just an alternative and not the final goal. In fact neither mediation nor litigation is the final goal. We have to be aware that even if the court stays the last powerful instance, it is not the goal to be achieved. The same is with consensus. Even if consensus is the top of conflict evolution, it’s not the goal to be achieved as well. Both is not more than the way to reach a goal.

We never should mix the goal of the procedure and the goal of conflict resolution. There are different levels of need. One is concerned to the outcome the other one is concerned to the way to get there. These are two different pairs of shoes. Evolution will keep running as long as the conflict is not solved. When the top of evolution has been reached to fail, it doesn’t mean evolution has reached an end. In spite of that it loops from bottom up again. People will find frequent new occasions for quarreling. Hence evolution will be in force till the conflict is solved or till it stuck on one level. There is not a last instance regarding the dynamic of conflict. The clients will find other conflicts fitting to the same pattern until a definite end will be found where conflict is resolved or where the individual pattern of dealing with that conflict has changed. Conflict dynamic really ends when parties find their peace. It also ends when parties feel exhausted. It ends when there is no chance left to resolve the conflict. That is fixed more to the perception of the parties than the opportunities occurring.

To really make clear that cooperation is the sole strategy possible, parties have to learn, that confrontation is useless or that confrontation will fail. Mediation offers some tools to deal with the problem. In transformative mediation we try to change the client’s perception. A tool much better than convincing is maieutic. It is the interrogation technique developed by Socrates. Now the mediator will not argue for mediation anymore. He the more wants to be convinced by the customer, that confrontation indeed is the best way to go. Now the mediator’s intervention sounds like: “Imagine you’ll win the court decision. Is it satisfying you? Is it what you really need to have?” Then the mediator steps thought the clients arguments until he’ll find the lack. Now the client learns whether the planning is smart, which kind of outcome is wanted and what is the way to go. Mediators know very well how to manage and motivate parties to stay in mediation. They also know that parties become curious during the mediation and that they more and more feel motivated to cooperation. To really understand the chances provided by mediation they need to pass phase two at least where the conflict is becoming very clear and the way to find solutions according to that becomes more visible. This effect is increasing in phase three. Unfortunately, mediators will have the chance to do motivate parties singularly while mediation is running. That’s another trap of mediation. The idea of a solution is very open at the beginning. It becomes more and more visible stepping through the phases of mediation. That means the chance to convince a party about mediation is growing during the mediation.

Now it comes clear that convincing about mediation is a process itself. In some countries, where court internal mediation is offered, a court agent fills the gap between litigation and mediation, which is conducted by another judge of the court. The court agent, a clerk, is well trained to offer and convince parties of mediation. Since the court agent is not the authority of the decision process s/he hardly can fund on arguments coming out of the concrete questions to be answered. Those questions are targeting chances and risks not in general but in the individual case. From a project in the Netherlands we learned that parties are not convinced with cheaper and quicker arguments but with sustainability. The attempts of those court agents are improving the demand on mediation for sure but the success rate still is not high. Now we can wait until people learn about sustainability in conflict resolution in general or we can help them individually to get there.

Outlook

What parties need is some kind of conflict management, which is over the procedures at all and not a part of them. That could be the task of lawyers. It also could be the task of the sitting judge, the therapist or whoever is in contact with the clients. In all those cases, the professionals need to feel an own benefit when they shift parties to mediation. An advantage they have for sure occurs when parties switch to cooperation in general. That makes working on the case much easier, cheaper and quicker, independently from mediation. We should take in consideration that procedures of conflict resolution like mediation or litigation are to be seen like the manual not for the over all process but just for parts of the way of conflict resolution parties have to go along. It definitely is not the whole way. We mostly forget this as we think juridical procedures and mediation is covering all the needs parties could have. We intend to see them like omnipotent. It is a narrowing view and unfortunately it’s not the truth. Thinking like the customers do, those procedures always are covering just a part of their way. Thinking like a marketer those products are incomplete. At the end conflict management still is laying in the parties’ hands. A procedure covering the whole way to conflict resolution having all the procedures in mind and steering through them is missing. Also missing is somebody taking the parties at one’s hand going all the steps through conflict resolution, from the very beginning to the very end independently from the procedure chosen. This is needed the more than procedures are seen in a kind of competition where one procedure is claimed to be better than the other one. From a strategic point of view these are just steps described how to get some kind of results. The customer doesn’t care about the procedure. S/he just looks how to get out of the conflict as easily as possible. For her/him mediation is not the easiest way to go. Thus it’s normal if mediation is not her/his first choice. Better the customer learn how far confrontation is able to solve her/his conflict or not in concrete and in his individual case. Nothing more is needed. Customers are smart enough to understand, where cooperation is helpful and where not. Parties learned to switch from cooperation to confrontation before already as a part of their own conflict history. They should know that switching to cooperation again is not stepping back but forward. It mainly is not repeating the cooperation they tried already on the first level of the enhanced conflict evolution. Cooperation following now differs in so far, as the thinking behind is totally different. While the first level of cooperation was to convince about who is right or wrong, the cooperation now leaves the contradiction as it is. There is no need to decide who is right or wrong any more. Parties have to learn to let this question open. It’s not easy for them as it means to accept the adversary in her/his strange thinking. But it’s the basic idea of mediation and its the trick that makes cooperation possible to work. It is a natural development after cooperation failed to confrontation. And confrontation is a step itself to get there. Now it helps explaining to parties that another attempt of cooperation will be very different than the cooperation they tried before. If they understand they learn that mediation now is the sole way of cooperation left and the only logical consequence. Its not a choice anymore, it’s a must where solving the conflict is an aim declared. Thus we need to have a view over all the procedures putting them in a concept like a kind of a meta-procedure, which is able to arrange the cooperation of each attempt of conflict resolution. It’s not enough to look on only one procedure but on the whole process.

The question at the beginning I think we have to agree with. The question was: “Do you think we need a mediation to solve this contradiction between litigation and mediation? Now the idea of integrated mediation is coming up. Integrated mediation understands mediation more like a psychological process of understanding than a formal procedure. It is to be seen to be the over-all-procedure, describing step by step with interfaces between each procedure in case it is going to fail. The end of a procedure is not the end of integrated mediation. The steps of cognition necessary to mediate understanding between the parties could be gone through even if a pure mediation is not the procedure chosen. How that works? It works perfectly. There was an evaluation where the sitting judge tried to use mediation skills in that way during the litigation. It evidenced that the parties as well as the professionals are more content then in conventional processes and it proves that parties opening for cooperation will find the way into mediation for sure however it looks like at the end.

Arthur Trossen

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From the customer’s point of view it’s implicitness that a mediator knows his craft. To give an example: I would be irritated if the mechanican explains to me that he has learned his handcraft when I ask him to repair my car. I honestly am not at all interested to learn whether or where he passed his studies and how he managed his exam. I just assume that he knows what he is doing. Isn’t it suspicious then, when mediators point out their studies and exams? It is not convinvable for a customer to hear: „Oh, did you know, I really have passed some studies and I am certified mediator now with 120 hours of training!“. This I feel, says a lot of the one who needs to point out what is natural in fact.

I very much agree with Peter Brandon, to point out different types and styles of mediation. A mediator who is familiar with this will offer various kinds of mediation to the parties and negotiate the way, which the best is fitting the problem to be solved. This of course needs him to either know and to also master different ways and kinds of mediation. Not sure if that really is known by most of the mediators. I see it a liability, where the mediator misses introducing and negotiating that issue at the beginning of mediation, at least because it has consequences for costs, duration and depth of mediation.

I also like that Peter Branden pointed out game theory and strategical issues. Mostly they are not seen as to be a part of mediation. Star mediators by the way, who have been trained by schools of integrated mediation, do know about pretty well.

Peter Brandon’s view on mediation seems to be impacted very much by lawyer’s thinking. I like his SWOT analysis though I would see the items to be addressed a bit differently. Star mediators do also include lawyer’s way of thinking. The same way they know how to include the psychological way of thinking. From their point of view mediation is to be seen a process as well in juridical like in psychological manners. The psychological understanding of mediation is broadening its use tremendously. Now we gain even more options how to deal with mediation.

What Peter Brandon calls the eclectic mediation is close to the idea of integrated mediation. Integrated mediation could be added a further way of mediation therefore. It allows a systemic view on processes where “Precise listening” for example became a technique. Integrated Mediation developed this technique, to affiliate the interfaces of disciplines and procedures in a not redundant way. It allows developing mediation though it is not in the parties’ view. An Integrated Star Mediator therefore and for example is able to create mediation out of paraphrases reacting on killer phrases step by step.

Recently I joined a talk where I have been asked how a good mediator can be identified. This is really an intriguing question. My answer was: “A criterion for me would be the flexibility and facility how the mediator is able to fit the procedure to the fuss.”

How can you prove or identify this ability now? It will be visible by the mediator’s attitude, the way of thinking and the ability to either not think or better said to think precisely as we learned from Socrates by the Maieutic. This is not to be expressed by completed hours of training. Also not by the way how he is able to create the business cards and letterheads. Rather, as he is dealing with himself and his environment. The school might give an indication. Where this competence and view on oneself is emphasized in training, one might assume that this might become the typical attitude of the trainees.

What we learn now is, that these criteria makes the selection of the “best mediator” very difficult. At least it is due to questions of trust and recommendation. It definitely is not a question, whether I may call me “certified mediator” or not. The “certified mediator” is not even an indication of quality. This kind of certification proves only, that the mediator should have a minimum knowledge. Actually we know that this is not even enough to be a mediator for example showing up what Peter Brandon describes as to be a consequence. His SWOT analyses will help the customer to find the fitting mediator where he takes in consideration that one can master facilitative mediation, another one the evaluative mediation and the next one the transformative mediation. In reality and according to the experience I gained through mediation, the borders are not fixed why eclectic mediation or maybe better, integrated mediation is the mean to go through the variety of the process.
We could make a start, using the term “mediation” not that generally and inflationary but a bit more differentiated. Mediation is not the same as mediation. It should be the mediator knowing this – not the customer!!!

However I appreciate it very much that Brandon Peters offers his e-book to be distributed freely. That is why I like to hint his web-side. You find it here. The e-book you will find by clicking here or on that picture above.

Thank you Brandon Peters.

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During the last years online-mediation is more and more important.

Online-mediation is not only a kind of „mediation via internet“ it is a valuable and helpful tool for each mediator as well as for supervisors, trainers and coaches.

The online-system „MESUTRAIN“ of the European Mediation Network, powered by Accanis LTD, is desingned especially for the needs of an effective and professional live online-mediation but additionall can also be used for online-supervisions as well as for online-trainings.

The basic system of MESUTRAIN based on a portal for online-trainings. Why did we develope this system further?

There are two main reasons:
1.Because of the fact, that this system is in use by our provider with hundreds of trainers daily we can guarantee that the system is running at any time. In addition the system is continuously redeveloped to react to all the needs of the customers.
2. Our main idea was to offer a system that can do so much more than i.e. the solely written based online-mediation-systems like JURIPAX or MODRIA. Our system can do a lot of more. With our new development this system can be used for many different forms of supervision, providing maximum quality in your mediation and supervision sessions.

It does not matter if you want to book or offer a mediation, a supervision or an online-training, it will always be the same procedure, one system for all uses.

The special advantage of MESUTRAIN is, that mediations can take place live and in realtime over great distances. EVEN WORLDWIDE!

In several surveys, for example in Italy, where a special ODR (Online Dispute Resolution) platform based on written mediation has been established, it was discovered, that the majority of the users prefered a live way of communication, making it possible and much more easier to deal with emotions, and clearing up possible missunderstandings immediately.

Another great advantage is that the mediator can influence the topics and the allotted timeframes and keep these under control.

The combination of online-live-mediation/supervision, the integrated functionality for messages inside the system as well as the use of e-mail is established in each form of mediation.

Because of this, MESUTRAIN is outclassing other solutions, especially all soley written-based systems.

Feel free to contact me for all kinds of questions about our network and our MESUTRAIN-system.

Yours,

Patric Illigen

http://accanis-ltd.com/online-mediation.html

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Acive listening means to show that I am listening. Ist primarily based on body language and para-verbal communication.

Looping means to mirror what was meant and expressed. It is to reconstruct thoughts and feelings of another person.

By the loop the listener enters the client’s world of thoughts. To not manipulate their thinking, the loop should not contain any other information than given by the sender. Looping includes the techniques of paraphrasing, verbalizing, anchoring and summarizing.

In fact the loop is much more than just a mirroring tool. It helps to adjust thinking and structuring. It helps to deal with complexity and to bring order in one’s brain. It helps to steer through a cognition process, which is described pretty well by the phases of mediation.

Eventually the loop will be enriched by the technique of maieutic. Now the loop becomes a multifunctional tool. That might be used wherever thoughts need to be (re) constructed.

The loop concept always works as precisely as the mediator’s thinking is. If that is true, the mediator’s attitude and his way of thinking determine the depth and quality of cognition and insights. Where mediation is a process of clarification precise thinking is a mean to verify and adjust thinking.

Precise listening is the technique achieving precise thinking. How does it work and what is the mediator (the listener) expected to do?

One of the main services the mediator is providing to the clients is to feed back his neutral meta-view. The listener should be able to see all the sides of a problem, relaying the persons behind. He is able to see the whole complexity even what is not becoming visible or seen by the clients. How can that be? The mediator is not smarter than the parties are. He even knows less about them and their conflict. The difference is just: He knows what he (and the parties) in fact doesn’t know. He knows what we ought to know for understanding the problem in its context.

A good attitude is where the mediator thinks he knows absolutely nothing. He should be naïve like a little child. The same time he should be wise like an old man. As a child he is curious to learn and scrutinizes everything. As an old man he is composed, not emotional and not having an opinion at all. Sokrates was an example for precise thinking. He became the inventor of maieutic. His believe was, that the truth is located inside of everybody; he just needs to help letting it out. His idea was to being convinced by the client – not to convince. Though he wanted to be convinced, he made it as difficult as possible to succeed. Sokrates’s attitude is perfectly supporting precise thinking.

Putting everything together, the attitude of Sokrates, Thomas von Aquin’s rules of disputing, the knowledge about perception, constructivism and communication we will find a tool which is to be seen an extended loop.

The principle of looping is shown below: 

The most important element of the loop is paraphrasing. Even experts often miss using the technique, though paraphrasing and verbalizing is much more important than questioning. A good and fitting paraphrase mostly inspires people to continue talking themselves. No questions are needed then.

Paraphrasing is not only the mean for synchronizing communication. It also helps to synchronize thinking. The listener is due to check his own thinking. Where he askes the client: „Did I understand you correctly?“ He in the same time should ask himself: „Was that understandable where I suppose not to know anything? Was that a constant thought where one step builds on the other?“ Now the listener becomes critical. His loop is upgrading to become a very precise listening. The listener might confirm for example: „You said 1 comes before 2. Right?“ The client commits. The listener continues asking: „How can you know?“ The client answers: “It’s mathematics”.  The listener asks: “I see. I wonder what is if there’s a count down?” The client answers: “Yes, then it’s the other way around”. Now the listener summarizes: “Then it’s possible that 1 is following 2 and the 2 is following 1, right?” The client agrees. The listener now continues: “It is depending on the direction of counting, right?”. The client agrees again. The listener now asks: “If it depends on the direction of counting, when do I know to count up or down?” and so on.

Confirming like that synchronizes not only communication. It synchronizes the thinking of listener and client the same time. The borders of thinking and the conditions become visible. Thoughts become bricks where one thought is settled on the other one like bricks, which are settled on each other until a building is coming out of it.

The listener knows that one brick is not the same as another one. Like the bricks, one thought is not the same as another thought. The listener knows thoughts change their meaning depending on the character they have. It might be compared with data storing also. A data like 123456 can be a text string. It also can be a digit. As a text it will be treated differently than a digit. A computer needs to know the character of data in order to treat them appropriately.

Where thoughts are bits of information they share this fate. Knowing the character of information helps to treat them appropriately. Emotional thoughts (feelings) express another meaning than rational thoughts (ideas). Facts are to be treated differently than opinions. The character of thoughts refers thinking on different levels and in different concerns. Separating thoughts and categorising hem helps to deal with complexity. This is a main mean where precise listening is superior to juridical thinking. In juridical thinking complexity is reduced on situations.

Precise listening deals with all the levels and concerns of thinking by structuring them. It’s more than just active listening and looping as it steers the client through the process of mediation as a mean for the process of thinking. It is brings order to the mess of the client’s brain.

Often mediation is declared to be a structured process. But its not the phases only giving structure. That would not be sufficient. The way of confirming is giving structure and head.

Now we can see the character (types) of thoughts like cases of a cupboard. The cases are for helping the listener to structure and to order his thoughts. The caption of each case is the character of information or the meta-type of it. Cases therefore can be:

• the phases of mediation (purpose of using the thought. Does it belong to phase one, two and so on. Phases are separated strictly. Thoughts will be concentrated on what each phase expects only. The thinking of solutions will be hindered where the phase is to discuss interests for example. This is meant to open the view and to dissolve it from solutions to be expected or not).
• the facts (facts are to be separated, as facts will be treated differently than opinions for example. There is no need to row about facts but to find how facts can be evidenced).
• the opinions (If people row about opinions, the question is why they need to have a common opinion).
• the emotions / feelings (feelings are facts that shouldn’t be doubted. They need to be recognized in order to treat them in a way. The mediator then could put them away or deal with them, depending if he wants facilitative or transformative mediation).
• the Ich-Botschaften (messages about the client help to find needs, interests and the benefit to be expected)
• the relationships which are targeted or concerned (separating the interests for each stakeholder).
• the level of relationship which is concerned (important in separation conflicts where relationship of parents has to survive the couple relationship. This might be possible where levels of relationship can be separated).
• the situation (subjecting the Halo Effect, working out the different perceptions on the same fact)
• the view oft he observer (subjecting the fundamental attribution error)
• the view of time (past, presence term)
• the interest / need behind (interests and solutions should be separated strictly)
• the solution to be expected
•  and so on

How can the mediator / listener manage structuring like that?

While listening, the listener builds virtual cupboards in his brain, one for each client. Each cupboard has different cases. Then he puts information in fitting virtual cases of each cupboard as described before. When confirming, he gives the meta-information (the caption of the case where the information belongs to) back also. This sounds like: “You mentioned facts as follows …., right?” The client confirms. The listener continues: “The conclusion you take from that is …..”. The client confirms. The listener continues:  “This again is causing emotions like …. Is that correct also?” The client confirms.

Now in mediation for example, which is a clarification process also, the listener is not only repeating what he understood. He is a very critical listener also. He for example recognizes what was not said. Hence the listener asks where cases stay empty or where information is missing: “You didn’t mention anything about …, right? “The client confirms. The listener continues: “What does it mean?”.

The listener tries to reconstruct what the client said. He is critical and wonders all the time: “Can it be?” or “Is that really clear, coherent and conclusive?”. He assures himself by asking: “You said …. How did you come to that conclusion?”

Arranging thoughts and categorizing them as described before, makes thoughts comparable and discussable on one level. The listener / mediator takes chare that thoughts will only be compared by thoughts of the same level and concern.

It is extremely important to always ask for commitments. Commitments should be taken and confirm each step of thinking on different levels and cupboard-cases. This is to assure that thoughts became bricks in the brain of the client.

It’s a principle of precise listening to not think in the heads of others but to let the clients think instead. The challenge in paraphrasing and verbalizing is to not put more information in than the client wanted to provide himself. This needs the listener to not think forward like in linear communication, where the receiver determines meaning and course of an exchange. It needs to think in a reflecting way. The listener neither has solutions nor assessments in his mind. He makes everything transparent to the clients and let them deal with the phenomena, which becomes visible that way. The clients will be the ones who will find the solution then.

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The Professional Association of the Mediators in Bulgaria (PAMB), the European Association of Judges for Mediation (GEMME) and Integrierte Mediation e. V. – Germany kindly invite you to the International Conference “European Network for Mediation – Cooperation, Standards, Technologies”. The event is organized within the project “European Network of Mediators for Cross Border Dispute Resolution”, awarded under the European Commission Civil Justice Programme.

The conference aims at establishing network of mediators and mediation organizations for cooperation in international civil proceedings thus improving the access to alternative justice. We intend to foster partnership in cross border dispute resolution specifically targeting the areas of:

• “New Approaches to Conflict Resolution” and “Mediation in Europe”;
• “On-line Mediation” and “E-mediation”;
• “Commercial Mediation” and “Insolvency/Debt Recovery Mediation”;
• “Intellectual Property Mediation”;
• “Mediation in Energy Sector”;
• “Family Mediation” and “Transformative Mediation”;
• “Intercultural Mediation” and “Immigration and Community mediation”;
• “Mediation and Restorative Justice”;
• “Court and Mediation”, “Compulsory or Voluntary Mediation”, “Administrative Mediation”.

Our speakers:

Lazar Gruev, President, Supreme Court of Cassation, Bulgaria, Diana Wallis, Former Vice-president of the European Parliament, Fernando Paulino Perreira, Unit Head, Responsible for Judicial cooperation in civil and commercial matters, General Secretariat of the Council of the European Union, Ales Zalar, former Minister of Justice, Slovenia, prof. Dobrinka Chankova, Bulgaria, Graham Ross, VP Europe, MODRIA, UK, Roberta Regazzoni, Camera Di Commercio Milano, Italy, Francis Casorla, France, prof. Giuseppe De Palo, Italy, Beatrice Brenneur, France, Marchelo Marinari, Italy, Iris Berger, Germany‘, Ktarzyna Schubert-Panecka, Poland, Martin Gramatikov, Tilburg University, Els Prins, Managing Director, Centre International Child Abduction, Netherlands, William Marsh, UK, Michael Fysh, UK, Marie Francoise Le Tallec, France, Arthur Trossen, Germany

• PROGRAMME
• ON-LINE REGISTRATION FORM (Early bird registration fee EUR 50)
• ACCOMODATION AND TRAVEL OFFERS

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The content of the German Mediation Act is limited to the basic duties and tasks of a mediator, some limitations in the mediator’s function and to a general duty for education and advanced training. The Act provides for the “pure” mediation primarily. This is the mediation procedure outside the court. A judge is allowed to suspend the court procedure in order to initialize a court external mediation (aussergerichtliche Mediation). There have been lots of discussions about the court internal mediation. Court internal mediation is a separated procedure where a judge who is not the sitting judge acts as mediator (gerichtsinterne Mediation). Although this has been foreseen in the draft of law, the Federal Parliament (Bundestag) didn’t provide this kind of procedure. Instead of that judges can act as some kind of “judges of the peace” (Güterichter) where a judge who is not involved in decision-making tries to settle the case. This procedure is slightly different to court internal mediation. This is in respect to the role and the reputation of judges but with an option, to use mediation skills as well. Not everybody is happy with that law. Some belief it’s not going far enough. Others believe it is redundant. However most of mediators feel this is a crucial step to really help mediation coming up. Some smart rules help with that. Lawyers for example will be obliged to mention in the complaint the client’s efforts in mediation done before. Lawyers now have to learn about mediation at least to inform the parties properly. The awareness of mediation definitely is increasing in Germany. The demand on education and on mediation rises also. That’s the visible fact. Reliable statistics about mediation or even the number of mediators are not available yet. The parliament expects the private market to organize itself. There is a term of observation of 2 years. Afterwards the parliament will decide whether and how to improve the law and the administration of mediation in Germany.

Details about the law

The “law for the promotion of mediation and other ADR procedures” is divided in eight articles. Only the first article concerns the mediation act. Artcle 2 by 8 rule the treatment  of mediation in various court procedures. These articles are dedicated to change the procedural law.

The mediation act

The definition of mediation in §1 of the mediation act declares mediation to be a confidential and structured procedure, where the parties achieve an amicable solution of the confict, voluntarily and self-responsibly with the help of one or more mediators. A mediator is defined to be an independent and neutral person, without the right of decision making, steering the parties through the mediation process. The parliament changed the draft by deleting the rules about court internal mediation. The legal consequence is, that court internal mediation is not allowed anymore. There is no legal base to practice it. Instead of court internal mediation the law provides an alternative, which is the “Güterichter”, where a not decision making judge will be allowed to arrange a hearing where conflict resolution methods are allowed. The “Güterichter” is not allowed to make decisions. §2 of the mediation act rules the procedure, where the main items are: The mediator has to be choosen by the parties. The mediator has to assure that the parties understand the process and the roles given by it. The mediator is impartial where impartiality means to support the parties similarily. He improves communication and assures that parties are involved appropriately and fairly. He is allowed to caucus when parties agree with that. Third people are only tob e involved where parties agree. Parties are allowed to cancelt he mediation at any time. The mediator is allowed to cancel mediation, when he feels that parties are not able or willing for self-responsible communication. The mediator works towards complete information and understanding. He should recommend parties to take advisory where necesssary. Under the acceptance of the parties, the final agreement may be minuted. §3 of the mediation act rules the dutiy to inform the parties about any issue that could impact his neutrality or indpendency. He stays allowed to proceed the mediation, if the parties agrre with that. It is not allowed to act as a mediator, where the mediator has been involved in “the same affair” before already. He is not allowed to take actions for one of the parties afterwards. The same is when an associated colleague has been involved. But in that case parties may allow the mediation although.  The mediator is obliged to inform tha parties on demand about his professional skills. §4 of the mediation act rules confidentiality. The mediator as well as the persons involved are due to confidentiality. There are exemptions where the final agreement is needed for enforcement, because of the ordre public, especially to protect the child interets (“Wohl des Kindes”)  or a mediation or to avoid damages of the personal integrity of a person and where facts are obvious or not to be seen a secret. The mediator has to inform the partise about the conditions and the extend of the confidentiality. This rule has been discussed a lot. In fact it is restricting confidentiality compared to the lawyers and other professions. As far as the confidentiality is riled by the law, it would have been possible to negotiate it privately. The law didn’t exceed these limits unfortunately. So confidentiality definitely is not given in penality cases. What ordre public means is open to interpretations. §5 rules educational queries. The mediator has to assure his education and further educations in a self-responsible way. He has to provide knowledge and practical experience. Opposite the draft the parliament added what a qualified education means. It should include knowledges about the basics of mediation, the structure and conditions to be, techniques of communication and negotiation, competence in conflicts, knowledge about the law and the role of law in mediation, practical exercises, roleplays and supervision. A mediator may call himself a certified mediator, when he evidence an education as to be ruled in details by legal degree. The rules about crtification are crucial. The idea is to not make a difference between a mediator and a certified mediator. That means everybody further on can call himself a mediator but not a certified mediator. There are no priviledges assigned to the certified mediator, opposite to Austria for example. That means the law about mediation is targetting the mediator independently if he is certified or not. . §6 of the mediation act allows the ministry of justice to degree details of education and the institutes of education. That the minimum hours of education are fixed on 120 hours is not written in the law but in the grounds of the law. §7 says that there may be expolarions and resarches to be promoted by the governement. §8 forces the governement to report about the development of mediation also about the state of education in between a term of around 5 years.

The procedural laws

Articel 2 by 8 are to change some procedural rules. The main changes are: Opposite to the draft of law there is no enforcibility forseen anymore directly coming out of the final agreement in mediation. As before the final agreement might become enforcable only by a notary, lawers or the court. There is a change of §253 of the civil procedure law. The intruiging idea was to forche lawyers and plaintiffs to mention in the plaint whether a mediation or another ADR procedure has been attempted. This is to force lawyers to learn about the mediation and to talk with the clients about the opportiunity to apply a mediation. The main point that has been changed by the law concerns §278 section 5 of the civil procedure law. Now the siiting judge is allowed to shift the case to a so called Güterichter, which is a colleague not allowed to make decisions in that case. The Güterichter now is expressively allowed to use mediation skills as well as any kind of conflict resolution methods. § 278a of the civil procedure law will be added newly. Here the judge is allowed to recommend mediation or other ADR procedures to the parties. If they agree, the court procedure will be suspended. There are minor changes in other procedure laws which are more or less similar.

Comments about the law

Though mediation has its history now since almost 20 years in Germany, it still is not established as it could be. Nevertheless mediation now is ruled by the law. The mediation act might be seen as to be necessary to fulfill the EU directive. In fact the rules are not further going than privat law allowed already to deal with mediation. Thus the law really is to be seen as to support the implementation of mediation. It seems to work. The press more and more is reporting about mediation, the lawyers interest in learning about mediation is increased and the demand is raising also. Unfortunately there are no statistics availible, how many mediators we have and how many mediations have been demanded. Not to speak about the success rate. However things are on the way and it is good that the governement is observing the market and the aibility of the chambers and associations to self-organize the profession. This might be the biggest challenge since in germany we still haven’t been able to found an umbrella organisation.

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First Part: Theory and Practice of Mediation in Germany

1          Introduction

Mediation is by now a well established and acknowledged legal institute in Germany as an alternative method to solve conflicts. “Alternative” method means without going to court, without using the state institution court. Although it is stated, that still the advantages of mediation are not commonly known[1].

It was in the United States of America where this technique was developed first[2]. Due to shortcomings and deficits of American civil procedure law (long procedures, high costs, unpredictable decisions by jury trial courts, possibility of penal fines in a civil case (punitive damages), absence of a rule, that the party losing the case has to bear all costs, etc.) there was a high pressure to develop an alternative to the decision of legal conflicts by courts[3].

This is the reason, why since already since now three decades alternatives to the decision of conflicts by court (Alternative Dispute Resolution- ADR[4]) were developed and used in the USA. Among these alternative method one –maybe the most wide-spread and known-  is called “mediation”[5].

In Germany such a strong need for development of alternative dispute resolution methods did not exist. Decision of civil cases according to German Civil Procedure Code of January 30, 1877 is quite satisfying and efficient.

So the beginning of mediation in Germany was mainly based on pure academic interest of law- sociologists and other scientists, studying the phenomenon of deciding conflicts without going to court, that gained more and more popularity especially in the USA.

Of course mediation elements were used during all ages and by all nations, especially in diplomacy and state law[6]. Nevertheless a profound scientific basis and systematic approach was developed only in the 20^th century in the US at Harvard University[7]. Results and practical use of mediation in the US served as model for Germany and many other countries worldwide.

A leading role in the development of mediation played family (law) mediation. Here the advantages and effectiveness of mediation showed first. Problems in family affairs are mostly deep and highly emotional, that a judge, just applying formal legal regulations, very often cannot find satisfactory and good solutions[8].

Next to family (law) mediation as well other fields of law became subject to mediation in Germany, like environment law, neighbor law, labor law, corporate law, etc.

In contrast to for example Sweden[9] mediation in penal law cases plays only a limited role in Germany[10].

Especially lawyers discovered mediation as an alternative work field. The reconciliation of the parties of a dispute was considered as their genuine task. However as well judges refer to § 278 Sec II German Civil Procedure Code[11] and argue, that it is actually their professional task to reach amicable settlements of parties going to court. In general judges reacted extremely skeptically towards the new instrument mediation. This reaction is normal, since the use of mediation implies acknowledging failure and weaknesses of traditional dispute resolution by courts, means is criticism of the work of judges[12].

This shows that the institution of mediation is still highly emotionally discussed in Germany by different groups of contradicting opinions. Nevertheless the institution mediation has become already wide-spread in Germany. On European initiative by EU-Guidelines on Mediation a draft law on mediation is being prepared at the moment in Germany and is discussed very intensively[13].

Summary:

Mediation developed in Germany not primarily due to weaknesses of conventional court procedures but as useful alternative to conventional court proceedings.

Due to its specific approach of mediation is clearly the more efficient vehicle for certain types of (legal) conflicts. Everywhere where the conflict parties have long-running or even close relations (family, neighbors, permanent business partners, employees and employer, etc.), the method of mediation often achieves better, that means more satisfactory and sustainable results than conventional dispute decision by a court (by one or several professional or lay judges) or by an arbitration commission or court (arbiter).

Mediation in Germany developed without any directives of Government or government agencies. It is the product of an active civil society, of citizen taking their fate in their own hands, if the institutions or procedures, provided by the state, prove insufficient. Only after the process of developing the new institute was finished, the state accepted and acknowledged its usefulness and efficiency.

More and more countries started to elaborate and enact a legal framework (law) for mediation. However the national legislators seldom acted as initiator or pusher of this new instrument[14]. Usually the legislator lags behind autonomous developments in civil society and tries to put into certain legal frames only afterwards what has been already developed.

2 What is mediation? (or “The magic of mediation”)

In the following text I want (to try) to give the basic understanding of mediation.

The basic feature of mediation is “achieving a dispute resolution by the parties of the dispute themselves with help of a third person, not having authority to decide the conflict itself”.

Mediation has its origin in negotiation techniques, has similarity with arbitration and reconciliation, but is not fully identical with the mentioned techniques. Mediation is using parts of the mentioned techniques, however is more than the mentioned techniques and in certain regards different.

So it is more than just negotiation, but is using negotiation techniques[15], is not arbitration, because the essence of arbitration is, that an arbiter (“Schlichter”, “Schiedsrichter”) makes his own proposals for solving the conflict and tries to convince the both parties to accept his proposal. Mediation tries to reach reconciliation by (unvisibly) guiding the parties to discover the (genuine) roots of their conflict and to elaborate a lasting solution strictly by themselves.

Thus the mediator governs only the procedure, not the contents.

Of course the definition of mediation is not fixed. Mediators often use partly other techniques as negotiation, reconciliation, compromising etc.

In France for example, the term “médiateur“ is soften used for institutionalized bodies, having the task to help solve conflicts between citizen and public agencies. There are for example “médiateurs da la rue”, a “Médiateur de la Republique Francaise”, a “médiateur culturel” and the state owned railway system (SNCF) has its mediators to solve problems of unsatisfied customers with the railway. Here the term mediator is used in the sense of an “ombudsman”, solving problems between state and citizen[16].

So there are many ways of dispute resolution used in history and used today as conflict solving instruments and institutions. To a certain extent they include mediation techniques, which are applied today.

One example of an historical element used in modern mediation is ”compensation”, means balancing the interests of the parties. Since ancient times it is a common legal principal to compensate the suffered damages or injustice by money or other compensation means. That is the tradition of the Codex Hammurabi, the Codex Diocletian[17] and for example old Germanic law tradition[18], like legal traditions of other nations like the “Bij Courts” in ancient Kazakhstan[19].

In the Middle Ages it was a constitutive part of political negotiations between states and rulers, that a compensation had to be granted to reach a compromise and to end the conflict[20].

Especially in penal law historically legal institutes providing compensation were used to achieve a reconciliation between offender and victim and – most important- to provide a basis for future peaceful relations between the respective parties[21].

This element of compensation is used in modern mediation. By providing compensation (and this not only can be done in financial form) reconciliation is reached, which is the necessary for a future peaceful co-existence, may it be between states or between offender and victim, who might be for example neighbors.

In modern German (Penal) Law this principle is widely used and called “Täter-Opfer-Ausgleich” (TOA), compensation between offender and victim[22].

On the basis of historic experience the modern institute of mediation, being developed in the USA, however shows certain distinguishing features and techniques, which make mediation unique and make mediation so surprisingly successful.

Once more: The decisive element, as above already mentioned, is, that a mediator does not decide himself, does not give concrete solutions how to solve the conflict himself.

The task to find a solution is left up totally to the parties of the conflict. This is the crucial characteristic feature of mediation, at the same time it is the key to its success and the reason why mediation in certain cases often works a lot better than any court procedure or arbitration procedure (the “magic of mediation”).

A second decisive feature is that mediation does not limit itself to solve a dispute only on basis of legal positions, like for example a court or arbitration tribunal does.

In the course of history the ideas of facilitation of a compromise and reconciliation got lost by an increased legal position thinking, a total legalizing (Verrechtlichung) of all areas of life. So the conviction became dominant that all conflicts could be and should be solved by a judge, deciding on legal positions (only) and using a pure legal procedure (like civil procedure code).

So the second characteristic feature of mediation is, that it is not taking into account the legal positions, it goes far deeper. Whereas in a court emotions and feelings are excluded and considered not appropriate in a court proceeding, where coldly existing or not existing legal positions are discussed and where the judge has to decide who of the parties of the conflict has the better legal position, the key to a successful mediation is, that it allows, even stimulates, that the parties search for deep-rooted, often hidden, reasons of the conflict.

Thus mediation does not stay on the surface of just legal position. It goes a lot deeper and tries to discover and evaluate and utilize eventual emotional reasons of the conflict.

Since a human being is not only composed of a (cold) intellect, but of feelings (emotions) as well, the percentage of emotional reasons for conflicts is surprisingly high.

Since mediation allows to “dig out” deep-rooted emotions, allows to “dwell” in emotions and tries to analyze them, it has a lot broader basis for a potential solution of the conflict than any court procedure could provide[23].

This as well means that a mediator does not only have to know the law, he primarily has to know how ti handle people, how to make the talk, how to make them open up. So he needs to a certain degree the abilities and techniques a psychologist, a social worker, a wise old man (or woman) is using.

On the basis of the parties opening up, a broad basis for potential solution alternatives can be found.

The task of the mediator is to make the parties talk, to make them open up, dig out deep-rooted emotions and hidden reasons of the conflict by making the parties talk. The found emotions and reasons have to be sorted. Potential solution alternative have to be sorted and evaluated.

In this whole process, sometimes exhausting and painful, the mediator only guides the procedure, organizes the process of talking with each other of systematizing potential reasons and potential solutions.

The mediator is only a medium, he only helps the parties in this process, he himself shall strictly stick out of any interpretation, evaluation, solution-finding, he “only” has to guide, to provoke, to organize the parties to do all that by themselves. They themselves have to find an autonomous decision, that will be most appropriate for them, reaching a sustainable solution, that will last.

Final remarks:

Although mediation has its roots without doubt in historical attempts of dispute resolution by the parties using negotiation, using a mediator to facilitate solutions, reaching a reconciliation by fair distribution of burden, by equalizing caused damage, etc., the characteristics and background of modern mediation are twofold:

a)     Parties started to be unsatisfied with the conflict resolution procedures and institutes, provided by the state. Although historically a great achievement to bring the solution of conflicts in a regulated frame, controlled by the state in the form of court proceedings, later split up between prosecution and decision, thus ending private efforts to provide justice (“Selbstjustiz”, “Fehde”), the development of legalizing everything, means just thinking in legal positions, and the expectation, that someone else, the state in form of courts, will solve all problems, all conflicts, led to growing dissatisfaction with this method. Mediation does not make courts and state intervention superfluous. There will be always many cases, where the decision of a judge, state activity, like investigating, accusing, executing the court decisions, will be necessary. There are howver conflicts[24], where a judge just following legal positions, will not be able to find a sustainable satisfying solution for both or even one party. That is the potential field for ADR by mediation.

b)     Mediation is the product of a grown civil society and a democratic state[25]. The key issue is a self-confident citizen, who takes care of his interests and rights himself. The citizen themselves are responsible for shaping the conditions of their life (“Eigenverantwortung”), including solving potential conflicts. The times are over when a sovereign, a leader, the state had to take care of the fate and wellbeing of the citizen. Since French and other civil revolutions there is the guideline (Leitbild) of an independent, self-conscious citizen, taking his life in its own hands and not leaving everything up to a higher instance, to the state, to a court. Of course this is an ideal and in many cases a citizen might need support and help by the state, by a court – but in a growing number of cases he should feel himself responsible for shaping his living conditions, including finding ways of conflict resolution. Thus mediation is the result of growing self-consciousness of citizen and democracy.

3 Fields of application of mediation

Mediation is not the answer to all (legal) conflicts. It is however a useful tool for dispute resolution, when the conflicting parties are in long-run and close relation, maybe even live together.

So mediation was initially developed and applied in family (law) conflicts in Germany.

Family law is a typical area, where mediation can be used successfully and potentially and often shows better results than court proceedings. This can be easily understood. The family judge is a distant third person, who does not know all the nuances of the family life of the parties. As well he is judging only on basis of legal rules, legal positions, thus not always touching the true reason of the conflict. His decision might be not satisfactory for even both parties. Here the new institute mediation gets into the picture. Applying the above mentioned principles mediation will lead the parties to deeply analyze the reasons of the conflict and to work themselves on potential resolutions. If this works – and it works quite often –the found solution – elaborated by the parties themselves on basis of mutual insight and consent- will be more satisfactory and more sustainable than any court decision.

Another popular area of application of mediation are conflicts between neighbors (neighbor law), conflicts within work process, i.e. among employees and especially between employees and employer (labor law), permanent goods or services supply relations (civil law and economic law), etc.

An area where mediation is used a lot is consumer law. This as well is developed in Kazakhstan already.

What is called environment mediation concerns the relation between state (agencies) and citizen regarding planning and projecting big facilities like nuclear plants, etc. Here especially in the USA, but as well in European countries a movement developed, where the citizen are more and more participating in decision process. Court decisions often showed to be poor and not matching the interests of the sometimes many participating parties. Here very often by negotiation and mediation a more sustainable and acceptable solution can be found[26].

A very famous example of environment mediation is the mediation regarding the Vienna airport Schwechat. Plans to enlarge it and build a further starting/landing lane caused a lot or turmoil and protest and led to a blocked situation, where nothing moved ahead. By means of mediation finally a solution was found in 2005, to which all participants could agree. An excellent example how positively mediation can work[27].

As well in corporate (business) law mediation becomes more and more used. On the one hand mediation between corporations can economize millions of EUR (or USD)[28]. On the other hand mediation within a corporation became an important tool for solving conflicts within corporations (between employees, between management and staff, between different departments, etc.). Mediation became part of good corporate governance. It is very astonishing and positive that today as well in Kazakhstan mediation is widely used already by and within big corporations[29].

Summarizing it can be stated, that mediation in business (between corporations and business partners) became very popular in Germany[30], is widely spread and accepted even or especially by very big (international) corporations[31]. It is the most popular form of all Alternative Dispute Resolution (ADR) procedures[32] and is a clear alternative to court proceedings.

As well mediation within corporations (companies) nowadays is the most effective instrument for modern “conflict management”[33]. Conflicts in huge business organizations are normal and have to be handled/managed. Conflicts very often are accompanied or even based on emotional reasons. Mediation is the most appropriate modern instrument, to deal with conflicts in corporations, since mediation does not limit itself to legal solutions or just concrete work issues, but goes deeper and covers emotional problems as well[34]. So mediation is becoming more and more used within corporations as part of corporate (conflict) management.

4          Mediation: alternative to court proceedings or integrated in court proceedings

Initially mediation was developed as an alternative to court proceedings. This means mediation was considered as kind of a competitive tool with regard to conventional decision of conflicts in court proceedings. The general attitude of judges and other legal professions was very negative, skeptical and refused acceptance of this new instrument.

So mediation developed outside of the judiciary, even against the conventional judiciary. The conservative jurists did not want to accept this new approach, pretended that mediation is “nothing new”, that reconciliation was always done and tried by all conventional approaches to solve conflicts.

But actually mediation reflects a total different approach. The axiom is that people/citizen should decide their issues themselves, autonomously. That means primarily it is not the state, that has to care about the affairs of the citizen, it is the citizen themselves, who have to take care of their affairs, and this principally includes (peaceful) settling of conflicts.

So mediation is based on the concept of civil society. If you go deeper in theory of state and law, it is the realization of the right of self-determination of the citizen. This right is not given by any state, it arises independently from any state order from the inalienable rights of people[35].

So mediation developed in Germany separated from the state sphere on basis of civil society. The many NGO’s founded in this sphere initially had a clear concept against any state interference.

After a while this picture changed. After initial rejection and criticism by conservative lawyers, judges and prosecutors, mediation gained more and more popularity and acceptance. With this growing acceptance mediation started to be integrated into the state system of courts and the so-called “court-mediation” was born. Court mediation means, that the new instrument of mediation was in a certain way combined and used with conventional court proceedings.

By now all Federal States of Germany have introduced pilot projects dealing with mediation within courts[36].

That means judges themselves learn to perform mediation. The ordinary court proceedings before the “normal” judge are suspended, the case given to another judge with special training, who does the mediation (according all principles of mediation). If successful, the ordinary court proceedings are discontinued, if not they continue.

On the results and experiences of the pilot project in Berlin, especially at the Landgericht Berlin, will be reported below (under 6).

5 Mediation and Penal Law

Referring to the above mentioned historical way of dispute resolution by reconciliation in criminal cases[37] mediation gained a certain limited importance in Germany in criminal law proceedings as well.

Under the term “Täter-Opfer-Ausgleich”, German abbreviation TOA, (offender-victim-reconciliation) in German Penal Law since 1990 was introduced a procedure to reach a reconciliation between the victim and the offender usually with support of a neutral third person (mediator) in the way of negotiating, means mediation.

Initially this was introduced in juvenile penal law (Jugendstrafrecht). If minors are subject to criminal proceedings to a large extent punishment is avoided, if the juvenile reaches an agreement, reconciliation with the victim in a certain form, mainly by compensation of the damage in any kind of form[38]. If a sentence is given its content can be the court order to reach a TOA and render compensation, although this contradicts the basic principle of voluntariness of mediation[39].

This instrument, also strongly disputed, can have positive effects for the victim, for the offender, for society in general and especially for criminal justice[40].

For the victim it gives the possibility to cope with the psychological damages of the crime. The conventional criminal procedure often leads to a deep disappointment of the victim, since the process pivots around the offender only (to prove his criminal responsibility). Through the instrument of TOA (mediation) the hurt feelings of the victim are eventually healed, if for example the offender formally excuses himself or compensates the damage in any kind of form.

As well for the offender the encounter and discussion (negotiation) with the victim in form of a mediation (although painful) can provide, that he is not only blocking against all state procedures (by police, investigating officers, prosecutors, judges), but gains a deep insight in his wrongdoing, thus opening to eventual consequences and most important accepting them. This is very important for his re-integration into society and future life without crime, means avoiding recidivism.

Relevance for criminal justice.

Regarding criminal justice the TOA is a revolutionary new approach to deal with crime.

Instead of only repressive measures used before, the mediation approach refers to the autonomy of the parties (even offender and victim) and uses their readiness to resolute the (criminal) dispute by themselves. Also many conservative jurists are tempted not to accept this approach, in German practice it shows a lot of success. Also it is still difficult to get statistical data, data collected by Prof. Kerner (University of Tübingen) show, that in 87% of the cases the participants (offender and victim) are willing to enter into negotiations/talks/mediation and in around 82,1 % a successful agreement was reached[41].

Despite arguments that the mediation approach is too soft on the offender and the task of prevention of crime is endangered, the new instrument shows a lot of advantages not only for the participants of the criminal procedure, but as well for criminal justice proceedings and the society as whole.

Criminal justice organs (investigating organs, prosecutors, courts) usually are overloaded with work, TOA reduces this work load.

Society gains, because by successful mediations in criminal cases future legal and social peace and stability of society is achieved.

As well on European Level the use of mediation in penal matters is recognized. There is a Recommendation No. R (99) 19 of the Committee of Ministers to member States concerning mediation in penal matters of SEP 15, 1999[42], which will be discussed in more detail in part two[43] of my speech.

6. Organizations and Figures

6.1       Organisations

In Germany within the last 20 years very many organisations were founded, which deal with and perform mediation. Since mediation movement is an alternative to state court proceedings it is natural that these are especially non-government organizations.

But in some European countries as well the Government at a very early stage supported the mediation movement, especially in the Netherlands[44].

Some selected organizations in Germany and Europe are:

-       Centre for Effektive Dispute Resolution (CEDR), GB, www.cedr.com

-       EUCON, Europäisches Insitut für ConflictManagment, Germany, www.eucon-institute.de

-       Nederlands Mediation Institute, NL, www.nmi-mediation.nl

-       Förderverein Mediation im öffentlichen Bereich, Bonn

-       Arbeitsgemeinschaft Mediation des deutschen Anwaltvereins, Germany

-       Integrierte Mediation, Altenkirchen   www.in-mediation.eu

-       Scientific and Methodological Center for Mediation, Moscow           www.mediationandlaw.ru

-       Deutsche Gesellschaft für Mediation (DGM), Hagen, Germany          www.dgm-web.de

-       Bundesverband für Mediation (BM)

-       Bundesarbeitsgemeinschaft für Familienmediation (BAFM)

6.2       Figures on mediation in general

To get an exact number of cases solved by mediation in Germany is very difficult, last not least due to the confidentiality principle. As well there is no official reporting obligation for conflicts solved by mediation (so not coming to court).

There is an estimation[45] of around 2000 -2500 cases in one German Federal State, so multiplied with 16 makes around 40.000 cases a year. If you compare with the 1,8 million civil court proceedings per year in Germany, this amount of mediations seem to be marginal.

Estimated are 10.000 -15.000 family law (divorce) cases a year. Of the annual 30.000 TOA (offender-victim-reconciliation) cases around 50% are solved by mediation.

It has to be taken into account however, that there is a huge number of cases are performed on a more informal basis in schools, in institutions of municipalities, etc. As well sometimes the definition as mediation is not quite clear, there might be mixed conflict resolution forms, especially in social institutions and churches.

As well regarding the cases solved within corporations- a very big part- there are no official reports and statistics yet.

Since mediation is still a new phenomenon and has two faces/branches. One branch is mediation as part of social work, trying to mediate and solve conflicts especially of weak (vulnerable) groups more in social environment. The other branch is the just growing commercial branch of professional mediators, earning their living by performing mediations or dealing with mediation, like training, publishing, etc.

But despite low figures mediation seems to be such a fascinating phenomenon especially in the USA and Europe that the number of persons and institutions dealing with mediation is constantly growing.

6.3 Report on Court Mediation in Berlin

It is easier to give exact figures regarding the institutionalized court mediation (so far in pilot projects). According to a report “Evaluation of Court Mediation in Berlin”[46] 2008 – 2010 in all civil courts of Berlin 5474 cases were dealt with by mediation.

AG       673

LG       4613

KG[47]    188

From the mediation cases relevant at LG Berlin 2/3 of the cases were turned back to the ordinary court proceedings (because parties did not agree on a mediation). In 1/3 of the cases a mediation procedure was performed, with in 63,8 % positive results, this means reaching a mediation agreement.

The pilot project is supported by Ministry of Justice of Berlin. Positions for judges performing mediations were created at the court. The training of judges as mediators is financed by court budget. Especially the President of the Landgericht Berlin is very supportive towards this new tool.

Until 2012 the basis for a decision has to be found, whether public financing of organization and performance of mediation within the courts is justified, since mediations could of course be performed out of courts as well by mediators, who are not judges.

In general the reaction to mediation performed within courts by judges as mediators is very positive[48], the reason might be the high public prestige of judges and respect of courts in Germany. However there are critical voices as well, that criticize the quality of mediations within courts, especially the qualification of the judges, performing mediations. Judges tend to understand mediation in the sense of reaching an amical agreement according to § 278 Abs, 2 ZPO, that means just try to reach an agreement between the parties as they did before, without using the basic elements of mediation (autonomy of the parties, opening up to emotional roots of conflicts, leaving the task and responsibility to find a solution strictly to the parties, not commenting the contents, just leading the procedure of a mediation). The critics argue that the concept of mediation is an alternative to court proceedings, so should be kept out of court[49].

Without commenting these two positions, the pilot projects show the popularity of mediation and intensions to institutionalize mediation even within in courts financed by court budgets. That proves that the times of hostile and sceptical position towards mediation is over in Germany and mediation maybe will be incorporated in the judiciary system as an effective instrument for dispute resolution.

7          Draft law on mediation in Germany

So far mediation in Germany is not regulated by a special law.

Since 2008 a draft law on mediation is discussed in Germany. Extensive scientific expertise was performed as basis for the draft law. At the moment the draft law in the version of a draft of referents of the Ministry of Justice (“Referentenentwurf”) is submitted to the Federal States and different interest groups for discussion[50].

Goal of the draft law is to enhance the use of mediation and other forms of ADR. It regulates confidentiality obligations for mediators and improves enforcement of mediation agreements. Minimum standards for mediators are introduced, the use of mediation within courts regulated uniformly (so far individual practice in all Federal States). No special regulations for mediations in penal cases (TOA- offender-victim-reconciliation) are included, since the instrument of TOA is already regulated in § 46 a Penal Code.

With regard to the fact, that a final version of the draft law on mediation in Germany is still not reached, a detailed report will be given later.

Second part:

European Regulations and Initiatives

1               EU – Mediation Directive

On European level there is a Directive 2008/52/EC of the European Parliament and of the Council of May 21, 2008 on certain aspects of mediation in civil- and commercial cases[51]. Despite initial intentions this Guideline is applicable only to trans-border mediations, see Art 1 and 2[52]. It contains definitions of “mediation” and “mediator” in Art. 3. In Art 4 it regulates a self-commitment of the EU member states, that voluntary codes of conduct (and other quality control mechanisms) will be developed and followed by mediators and their organisations. Member states shall encourage initial and further training of mediators to provide a high professional level of mediators (Art. 4 Sec 2). The Directive encourages courts to recourse parties to mediation. In case of obligatory use of mediation by national law[53], to which the Directive is without prejudice, the right of access to justice should not be violated.

Furthermore the Directive demands ensuring enforcement of mediation agreements by courts (Art. 6), confidentiality of mediation (Art. 7). It ensures that mediation does not prevent initial judicial proceedings by expiry of limitation of prescription periods (Art. 8).

The Directive will be transformed into national law in 2011[54].

2               European Code of Conduct for Mediators

On European level agreement was reached, that there should be no obligatory rules for mediators in Europe, in order to support the solution of several member states, to provide as much as possible freedom for mediators and mediation[55].

So the European Code of Conduct for mediators of July 2, 2004[56] is not obligatory for mediators in EU member states. However mediators and their organizations can on a voluntary basis commit themselves to apply the regulations of this code of conduct and get registered with the European Commission.

The code regulates professional competence of mediators (Art. 1.1) and appointment by the parties (Art. 1.2). Fees have to be transparently agreed before start or the mediation (1.3). Promotion is allowed – “in a dignified way” (1.4).

As important basic principles independence (2.1), impartiality (2.2) and  confidentiality (4) are regulated. Art. 3 covers the mediation procedure, by postulating basic rules for professional behavior of mediators, like the duty to provide full understand of the parties of the mediation process, to ensure fairness. Partie are given the right to withdraw from mediation any time (3.3).

The code stresses its self-regulatory character and contains appeals for self-commitments of mediators in Europe.

3               Recommendations of Council of Europe (Committee of Ministers)

The Council of Europe has issued four recommendations[57], regulating principles for family mediation, mediation in penal matters, administrative matters (alternatives to litigation between administrative authorities and private parties) and in civil matters.

Family Law[58]:

The recommendation stresses the importance of reconciliation in family matters and states that especially mediation is a good method to reach such a reconciliation. It enumerates a number of basic principles:

-       voluntariness

-       providing a guaranteed quality level

-       impartiality and neutrality of the mediator

-       procedure should not be public

-       mediator should not be judge

-       possibility to adjourn (interrupt) any court procedure for performing a mediation

-       Penal Law[59]:

The recommendation states:

-       Same principles as above under family law

-       compensation between offender and victim is primarily in the interest of the victim

-       How the results of a mediation (TOA) are considered in the criminal proceedings is conceded to the law of the individual member state of EU

Mediation as instrument for reconciliation is as well mentioned in the Recommendations of the Council of Europe regarding Juvenile Delinquency of September 24. 2003[60].

Recommendations on mediation in administrative[61] and civil[62] matters:

These two recommendations refer to the same basic principles above and appeal to introducing mediation in the court procedures of EU member states

All those recommendations show the commitment and intention of the Council of Europe to strengthen use of mediation in Europe.

4               EU Project “European Network of Mediators for Cross Border Dispute Resolutions”(June 2011- November 2012), Professional Association of Mediators in Bulgaria PAMB, IM Integrierte Mediation e.V. and GEMME (European Association of Judges for Mediation)

5               OECD

Main concern of OECD as an international organization of states is the settlement of conflicts between states.

However since 1979 OECD established an alternative dispute resolution procedure – with mediation elements-  regarding multi-national enterprises. According to the OECD-Guidelines for Multinational Enterpries[63] national contact points are established, at which governments but as well private persons can file complaints against multinational enterprises violating the OECD guidelines.

Task of the national contact points is to try to reach an agreement between the applicant and the multi-national corporation. In case no agreement is reached the national contact point has to publish a statement on the case[64].

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