#27 EdM
The pull of the law in conflict management.
Mediation services
Episodes of mediation.
The podcast on practical questions about mediation and conflict management.
Welcome to the episodes of mediation,
the INKOVEMA podcast on the practical issues of mediation and conflict management.
I am Sascha Weigel and in this podcast I explain case questions from my mediation and conflict counselling practice. I present concepts and models of mediation and categorise different perspectives and decision-making options.
Chapter
0:14 – Welcome to the podcast about mediation
0:34 – The pull of the law
2:14 – Everyday conflicts and their challenges
4:08 – The influence of legal argumentation
7:12 – The importance of decision-making
9:40 – Complexity of conflict decisions
11:45 – Mediation and its relevance
12:22 – Conclusion and outlook
Summary
In this episode of the Mediation Podcast, I discuss the The pull of law in conflict management. I present illustrative examples from my mediation practice which show that how and why legal issues are often at the centre of conflicts. It becomes clear that many mediators may view the law as a disruptive factor and try to exclude it from the mediation process, but this is not expedient. I shed light on why the law has this focal effect in conflict resolution and what helps to gain an appropriate understanding of the law.
Contents
[0:08]Welcome to the episodes of Mediation, the INKOVEMA podcast
[0:14]
Welcome to the podcast about mediation
[0:11]on the practical issues of mediation and conflict management. I am Sascha Weige. and in this podcast I explain case questions from my mediation and conflict counselling practice. I present concepts and models of mediation and categorise different perspectives and decision-making options.
[0:34]
The pull of the law
[0:28]This is episode 27, the pull of the law in conflict resolution. Today I am focussing on the pull of the law and legal arguments that I am regularly confronted with in mediation.
[0:44]Firstly, two or three very general examples. There are the parents who want to separate and are arguing about who has to make which payments on the basis of court judgements they have read. There are the former co-operation partners of a software project that has failed and these people are having a major discussion with their lawyers about legal assessments and consequences, who still has to pay what and who does not. There are the employees and former employees of a renowned research institute who have been arguing with the management for years.
[1:29]Who is legally culpable here and who is generally guilty of what. And then there is the works council of a severely ailing industrial company, which apparently hardly cares about economic issues, but takes the economic imbalance as an opportunity to talk about the illegalities and monstrosities of the management and executives and accuses them of negligence. I could not only continue this sequence indefinitely, but also further specify the individual cases and still certainly within the realm of experience.
[2:14]
Everyday conflicts and their challenges
[2:10]of many listeners.
[2:15]Because that is everyday business.
[2:19]It is clear that the law is a very important line of communication and conflict, opening up a space for argumentation that is important on both sides and on all sides when dealing with differences and potential conflicts. Conflicts are dealt with legally and this is easy to explain, because whoever is right and puts others in the wrong can derive claims and we learnt this early on. This is so intuitively correct that even mediators can think of nothing better than to banish the law itself and lawyers as such from the mediation process. They simply see the law and legal representatives as a nuisance and believe that the law should simply be kept out of mediation and thus out of conflict resolution because it comes across like a bull in a china shop. Knowing full well that mediation is not a legal vacuum and that the law should not simply give way to mediation and mediation discussions.
[3:29]I would like to explain here today why this is not at all necessary and b. Secondly, what the correct understanding of law and mediation looks like. And if you, dear listeners, have now sensed a slight contradiction because I have said that I would like to explain what the correct understanding of law and mediation looks like and you had the impression, I maintain, that you do not have the correct understanding so far, then you have got a first impression of what I meant, that law and legal argumentation have a pull effect that you can hardly escape.
[4:08]
The influence of legal argumentation
[4:09]It is this contradiction, which drives us inwardly and makes legal argumentation seem divisive, that has an escalating effect. Even if I have only declared my intention to say something right. How does that happen? Not only in conflict, but especially there, it's about making smart decisions. Namely the right one. And in a conflict, it's best for the conflict parties to work together. But what is the right decision? And now the law comes into play. Because you don't have to study law to argue legally. And in law school, students learn very quickly that they have to use their sense of justice and then professionalise it. But legal reasoning itself is something we all learn from an early age. We think in terms of right and wrong, lawful and unlawful at an early age, even if we don't care about the standard and are far from being concerned with state laws. But the binary code of the communicative legal system, right, wrong, as Niklas Luhmann described it.
[5:26]It is by no means limited to the institutions of justice, but is already doing its mischief, or to put it mildly, its business in the nursery. But one thing at a time. The question of what is right and what is right draws a line on the white sheet of possibilities. On one side of the line is the right or the one who is right, and on the other side of the line you suddenly find yourself in the wrong. Right cannot be created without also declaring wrong. And who wants to remain in the wrong? Right, nobody. And anyone who is in the wrong will argue legally that they are still on the side of the right. And if they only want to claim that they are also on the side of the law, they are also claiming who is wrong. If you look at this line of law, the law comes across like a guideline, like a guiding rope that not only points to the future, but also clearly distributes who is right and who is wrong. And the person who is right can derive claims against the person who is wrong.
[6:46]And that's why the innocent question posed in conflict management or mediation as to whether we can simply put the law to one side or leave it alone or talk about other important things is very objectionable and gives rise to the accusation that we want to negotiate about the law, which itself is not negotiable.
[7:12]
The importance of decision-making
[7:13]The answer to this question - can't we just leave the law to one side for a moment here in mediation - has only one correct answer. No, we can't do that. The law cannot be suspended in mediation, nor does it need to be. But the following should be noted.
[7:31]Conflicts are not only decided in favour of the law or for the sake of the law, but because the parties to the conflict have to make a decision and have to make it according to their own criteria. And the law is an important category in this decision-making process, because the decision must be lawful. But those who are too close to the law only recognise the law as a guiding principle, as a guideline for the decision that also takes injustice into account. Only from a distance do we recognise that the law opens up a playing field, a framework within which the parties to the conflict can move freely as free citizens in a free society. But where to move to, that is the question.
[8:24]They can and must move within this framework. But anyone who looks too closely at the edges of the line of law only recognises right and wrong, not the framework, the playing field of law. And I mentioned that the parties to the conflict also have other criteria. The conflict resolution must be affordable. Unaffordable solutions are not solutions. The decision must also be ethically and morally justifiable.
[9:06]Are they not justifiable? Are they not made? The question of what is aesthetically beautiful or ugly is also a decision to be made. Similarly, the question of what is true and what is untrue is a scientific criterion, even if it has nothing to do with universities or research institutions. The decision must also be feasible and within the scope of feasibility of those involved.
[9:40]
Complexity of conflict decisions
[9:36]This is a political decision and has nothing to do with parties. The sociologist Niklas Luhmann described these criteria in his functional subsystems and outlined the respective binary coding, lawful, unlawful, affordable, unaffordable, feasible, unfeasible.
[9:59]They form the guidelines for the conflict parties' decision and, like different frames superimposed on each other, it is possible to recognise how complex a conflict decision by the parties is. This is because it is necessary to find out whether there is a framework that is achievable for everyone and does not come across as unlawful or unaffordable, as unfeasible or morally unjustifiable or as aesthetically unacceptable or morally unacceptable according to any of these criteria.
[10:42]The describes also the Performance capability and the Performance in the Mediation from Mediators. You fold these Complexity again on. You leave not to, that the Parties to the conflict to early to only one binary Coding decide and itself so that to a certain extent the Conflict decision light make. The is the Performance the Mediation and sometimes one Imposition for the Parties. On the other hand is the Mediation therefore also only for a Conflict and for Parties to the conflict a relevant Conflict management instrument, when it at the Coping this Complexity also goes. And there must it in the Conflict for the Parties at some go, that them itself this Complexity aware and processing place.
[11:38]Parties to the conflict are like all other also endeavours, so little like possible Expenditure to operate.
[11:45]
Mediation and its relevance
[11:46]Mediation is the Procedure, the these Complexity in the Decision-making process the Mediation revealed.
[11:54]Unfolded and stays, so that the Parties one common Decision in one together clarified Frame meet can.
[12:04]Consequently is the Mediation not relevant, when the Parties clarified have, it gives none common room for manoeuvre. Also the falls Mediators not easy, then their Mediation to finish and their Mediation services to be set.
[12:22]
Conclusion and outlook
[12:22]The was it for this Paint and I hope, it is for you not more necessary, in The future to ask, whether one not times simple the Law short aside push can. Many Thanks to for Listen and perhaps could you about it beyond the a or other Idea for one yours concrete Cases develop, more spin and to one Decision lead. In favour wish I you on each Case good Success. When you this Podcast and me support would like, then leaves also a Feedback on Apple Podcast or on Google Business. About one Star rating and one Comment happy I me and the would help, that other this Podcast Find can, the him so far still not found have. With best Wishes say goodbye I me for the Just a moment. Until to the next Times. Come good through the Time. I am Sascha Weigel, Founder and Owner from INKOVEMA, the Institute for Conflict and Negotiation management in Leipzig and Partner for professional Mediation and Coaching training programmes in Leipzig.
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