INKOVEMA Podcast „Well through time“
#237 GddZ
(arranged) family mediation
Mediation as an ordered child protection measure for parents in dispute
In conversation with legal mediator Carola Reetz
Specialist lawyer SAV family law, mediator SAV, coach, systemic supervisor; aA lawyer and mediator at e-advokatur; coach and supervisor at Intrinsiq GmbH
Small series: Fields of mediation
Mediation ordered in accordance with the Swiss Civil Code
Goal
Ordered mediation is aimed at separated parents who are involved in significant and often long-lasting conflicts. The aim is to restore the parents' ability to co-operate. Destructive patterns are to be replaced by clear rules for constructive negotiation and action so that the parents can take responsibility for the good of their children in the long term.
Order
The child and adult protection authority (KESB) or the court can issue a directive for "ordered mediation" as part of a child protection measure. - With predefined objectives, the parents are obliged to participate and agree to cover the costs (cost approval). The results are to be integrated into the parenting process.
Prerequisites
- Suspension of other measures (RA, counsellor, etc.).
- Clarification of roles: court, KESB, counsellors or other specialist agencies on the one hand - the mediation team on the other.
- Clarification of roles: court, KESB, counsellors or other specialist agencies on the one hand - the mediation team on the other.
Legal basis
Swiss Civil Code (ZGB):
- Art. 272 ZGB - Best interests of the child
- Art. 273 ZGB - Personal intercourse
- Art. 307 ZGB - Instructions to parents, including compulsory mediation
- Art. 314 para. 2 ZGB - Order in appropriate, funded cases
- Art. 272 ZGB - Best interests of the child
- Art. 273 ZGB - Personal intercourse
- Art. 307 ZGB - Instructions to parents, including compulsory mediation
- Art. 314 para. 2 ZGB - Order in appropriate, funded cases
Role of the mediators
The mediation team leads the discussions, mediates between the parties and structures the process. Mediators have no right to issue instructions or exercise control.
If the mediation is cancelled, the referring authority is informed. The KESB or court will decide on further steps. The mediators have no supervisory, expert or directive function. Maintenance issues are not usually the subject of mediation.
If the mediation is cancelled, the referring authority is informed. The KESB or court will decide on further steps. The mediators have no supervisory, expert or directive function. Maintenance issues are not usually the subject of mediation.
Typical procedure
1. contact: KESB or court clarifies the urgency, mandate and framework conditions with the mediation team.
2. instruction and financing: preparation of the instruction, regulation of the assumption of costs.
3. confirmation of acceptance by mediators
4. initial contact with the parents
5. coordination: coordination with other specialists involved
6. mediation sessions (with parents, possibly with children).
7. conclusion: agreement or partial agreement, or notification of termination to KESB/court.
8. final report: report to the referring authority with a copy to the parents.
2. instruction and financing: preparation of the instruction, regulation of the assumption of costs.
3. confirmation of acceptance by mediators
4. initial contact with the parents
5. coordination: coordination with other specialists involved
6. mediation sessions (with parents, possibly with children).
7. conclusion: agreement or partial agreement, or notification of termination to KESB/court.
8. final report: report to the referring authority with a copy to the parents.
Contents
Chapter:
0:07 Welcome to the podcast
1:16 Introduction to family mediation
2:39 The path to mediation
5:05 Challenges in mediation
7:36 Tension between customer wishes
8:54 The role of expertise
11:25 Accompanying counselling in mediation
13:31 The importance of competence
15:09 Dealing with assaults in mediation
18:14 Preliminary talks and their importance
21:03 Differences in mediation
24:01 Psychosocial support during mediation
26:43 Ordered mediation in Switzerland
30:05 Challenges in arranged mediation
32:16 Voluntariness in mediation
34:35 Approaches to child-centredness
38:06 Mediation and social framework conditions
47:21 Conclusion and outlook for the next episode
content summary:
In this episode, I spoke to Carola Reetz, an experienced mediator and lawyer from Switzerland, about the topic of family mediation. We focussed on how the Mediation landscape in Switzerland has developed, particularly with regard to the legal regulation of the arranged mediation in family disputes involving children. Carola provided interesting insights into the differences between the mediation culture in Switzerland and neighbouring countries, particularly with regard to the obligation to mediate, which is already practised in some other EU countries.
Carola describes her career and how her initial work as a lawyer led her to mediation. She emphasises the challenges associated with family law and explains that many conflicts can be better resolved outside the courtroom. The tension between the client's expectations and the mediator's actual role is discussed at length during our conversation. Carola emphasises how important it is to communicate the differences between mediation and legal advice to the mediants in order to avoid misunderstandings.
We also looked at the complex dynamics of mediation sessions, particularly when it comes to highly contentious couples. Carola explains how, as a mediator, she tries to give participants a space in which they can openly address their conflicts while maintaining a balance between support and professional distance. Her practice demonstrates the need to sometimes recognise the limits of one's role when clients expect more legal advice than a mediator can provide.
An important point in our discussion was the concept of arranged mediation in Switzerland. Carola explains the mechanisms by which this form of mediation comes about and the challenges it brings. She describes how ordered mediation can be an important resource, especially when it comes to focussing on the needs of children in divorce situations. Her personal experience shows that the success of mediation is often based on patience and careful planning of the sessions.
In addition, we talked about the importance of including the emotional and psychological needs of the mediants in the process. Carola emphasises that sometimes accompanying psychological support can be valuable in helping clients through the difficult upheavals in their lives. Her perspective on this holistic approach to conflict and its resolution is a crucial aspect of her work.
Finally, the question arises as to how mediation practice in Switzerland is characterised by cultural and structural differences. Carola reflects on how the political landscape and specific decision-making procedures in Switzerland encourage a consensus-orientated attitude, which also affects the way mediation is perceived and practised here. The episode offers valuable insights into the practical and theoretical aspects of family mediation and shows how legal frameworks can affect the process.
Complete transcription
[0:00]So you have to lower your expectations of yourself a little, not despair and think,
[0:07]
Welcome to the podcast
[0:05]I am so ineffective here. Welcome to the podcast Gut durch die Zeit, the podcast about mediation, conflict coaching and organisational consulting, a podcast by Inko Fehmann. I'm Sascha Weigel and I'd like to welcome you to a new episode. And today's episode has the opportunity to cover many topics at once. Because my guest in this podcast is a mediator, of course, and also a lawyer, but she is also Swiss or at least works in Switzerland and knows the landscape of mediation, especially in Switzerland, of course. And so many topics are possible here. Nevertheless, I have placed the programme under the heading of family mediation because my guest today, Ms Carola Rehz, is an expert in this field. Welcome, Mrs Rehz. Yes, thank you very much. Yes, exactly. Thank you for the invitation. We've only known each other for a short time.
[1:09]Nevertheless, simply on a first-name basis, as is apparently customary in your podcast.
[1:16]
Introduction to family mediation
[1:13]Thank you very much for the invitation. I look forward to it. With pleasure. Exactly. And actually, yes, we don't know each other. But you have been recommended to me, warmly and above all when I want to know something about family mediation. And in the podcast, so to speak, I want to expand a little on this topic, which is not my own speciality. And also family mediation in Switzerland, above all, because that's another area of law and perhaps also a different regulatory content for mediation. At least that's what I've heard from people that the legal situation there has changed.
[1:50]Yes, so it has changed. We have had mediation rules in the Code of Civil Procedure for some time now, in a very rudimentary form. For example, the proceedings are suspended if the parties request mediation or if it is recommended. Things like that. But I think a lot is actually happening at a very basic level. Namely at the level of arranged counselling, arranged mediation. I find that very interesting as a development. Exactly, that's also the topic I heard about at a Swiss congress the other day, mandatory mediation, ordered mediation.
[2:26]A discussion that is also, let me say, gaining a bit of momentum again in Germany, which we in the EU countries that are subject to EU directives,
[2:39]
The path to mediation
[2:36]had already started in different ways anyway. Before we go any deeper, perhaps a few words about you. How is it that you are a mediator in your main field or is it that you are a lawyer who practises clever conflict management, so to speak, and therefore automatically has mediation on your radar? Yes, I came to mediation relatively quickly. I started working as a lawyer in 2000 and after just six years I had completed my mediation training. I had a lot of family law cases right from the start and realised quite quickly, even as a younger lawyer, that many of these conflicts were not really suitable for the courtroom. And I then looked for other ways and trained in mediation.
[3:23]Later, I specialised in family mediation and business mediation, then went on to complete a coaching course and most recently a supervision course. So it all goes in the same direction, namely out-of-court conflict resolution. I did both at the same time for a long time, i.e. I litigated cases in court, i.e. I was there for one of the parties, and I also did mediation.
[3:47]And since, I think, 2017, I've made the decision not to go to court any more because I can no longer cope well with these contentious cases, I have to say, as I get older. But I'm not alone in this, many of my colleagues feel the same way. It then took another two years, so I would say the skidmark was about two years, until I had my last court hearing, in 2019. And since then I've been working exclusively out of court. So mediations, but also negotiation coaching for parties who are in mediation elsewhere. Then colleagues with difficult mediation cases also come to me for coaching or supervision, depending on how they want to define it. I also do a lot of background counselling for colleagues who are not so good with Excel spreadsheets and calculations. I'm a total Excel freak and love doing maintenance calculations or property disputes, preferably with several properties that have been financed in a nested manner. I love that. And when I'm not in charge of the case, but my colleague is, and she's so happy that I can do it for her, I love that too. So it's a diverse field in the broadest sense in family law or family conflicts, where you can get involved even if you're not a traditional court lawyer.
[5:05]
Challenges in mediation
[5:00]After my mediation training, I then deliberately trained as a specialist lawyer. Probably a bit unconsciously with the ulterior motive that people might get the idea if I only did mediation and so on here and collaborative law and practice for 15 years, by the way.
[5:16]Then they might think, yes, she's probably doing that because she's somehow not quite so well versed in the subject matter. And of course it helps if I'm also a specialist in family law and offer mediation, then people are even more likely to believe that I really know what I'm talking about. Would you say that this is an important point for the mediator or the person making the enquiry to say yes to mediation because you appear to be technically sound and credible, which is not so much your job in mediation.
[5:52]You're addressing precisely this area of tension in terms of the client's wishes. People who are considering going to mediation have conflicting ideas about what should happen there. And it's our job as a specialist to clarify which event the three of us are in, for example. What are the rules here in inverted commas or what could be the rules that we might work out together, quite apart from the results. And the customer wishes are really double-edged. I've really noticed that. For years now, I've been doing mediation on the side at a public mediation centre in Co. and couples who wanted to separate or divorce came without any preliminary discussions or triage. They had simply pressed the mediation button and then one day they were sitting there and then you realised that they actually wanted the egg-laying wool-milk sow.
[6:44]It should be very quick, three sessions at most. But they are highly contentious. Then they would like us to advise them or work things out for them. Or, as I have often observed and always found very difficult, if there was a major power or information imbalance between the parties, the weaker party or even the seemingly weaker party, which can turn out differently, expected me, for example, to stand up for them as if I were their lawyer in this co-team. Of course, that doesn't work either. So it was sometimes difficult to tell the difference, but it is certainly helpful for the parties to know that there is expertise in the background. But it's also a great temptation to ask for precisely this expertise.
[7:36]
Tension between customer requirements
[7:31]sometimes it is a tightrope walk to be allowed to remain in the role of mediator. Yes, it seems to me, and that would also be my thesis in my field of work, so to speak, that this paradoxical requirement, which we also place on the mediants, should also be mirrored. So the professional expertise must be credibly perceptible on the part of the conflict parties who are not yet mediants.
[8:00]So that they get involved in the process, even if that's not what they want, and they can then refuse. So you can also say, well, that's not my job here, that's going too far. You would really have to ask your lawyer to what extent this is suitable for you or to seek legal advice again. That doesn't allow me to act as a mediator. And that this is only accepted, in inverted commas, if you know that the person knows what they are talking about because they are a lawyer, because they are a specialist lawyer, because they are a mediator.
[8:33]And I think that's an important message for mediators who can't say, well, I just have to be good at mediation. Clients often believe that you are good at mediation if you can convey this expertise credibly.
[8:54]
The role of expertise
[8:49]Well, that's the old question of whether it's good to have field expertise or not. In mediation, both have their advantages and disadvantages. In my experience in family mediation, where the level of conflict is quite high and people are really in a more or less manifest crisis, at least temporarily, the need for support and a setting and a safe container in which to negotiate difficult existential issues is very great. And I simply observe that it has a certain calming effect that they know, A, who knows what kind of landscape we're moving through. And that has a calming effect when I say, look, we'll get past everything. It doesn't really matter where you want to start, with the children's issue, with the money issue, with assets, with pension provision, whatever, we'll get past everything. Because it will simply feel a bit more different for you, because then you've started to discuss something here. Then you realise, oh, we can't finish that, because it's not clear yet. Then we'll continue there. It's definitely not salami-slicing mediation, where you deal with one thing at a time. That's not possible in family mediation.
[9:59]That's meandering. And when they realise that I'm already making sure that we really get round everywhere, that nothing is forgotten, neither issues nor important concerns, interests or needs, then that actually calms the situation. It's more of a resource in that sense. Of course, it doesn't cancel out the mediator's need for legal advice. And that's why I'm certainly not a mediator who says you can't have a lawyer in the background. On the contrary, I think it's a great resource to have background counselling. But I try to pay attention to it or recommend that you take a lawyer. Or who in turn has mediation training so that the person knows what they are doing here, how they are struggling to achieve results, however difficult that is.
[10:44]So don't, to put it bluntly, take a lawyer who knows nothing about family law and only does contentious cases, because he will then point out 17 points that you absolutely have to renegotiate. But a person, external counselling in mediation, who knows how difficult it is, will perhaps also see the 17 points, but will say, look, I would leave 5 degrees alone, but the three points, you should really ask again now, because they are enormously important and will have such and such an impact over the next 20 years. In this sense, legal counselling is very important and I see it as a supplement and not as a cross-shot from behind the scenes, but as a resource for the mediants who have great legal counselling needs.
[11:25]
Accompanying counselling in mediation
[11:26]I will also come back to the point about accompanying counselling. I would take up the point again with the old question about field expertise. And you had the introduction, from the client's point of view, I think this question is answered differently than we might have dealt with it in professional groups in the noughties. Do mediators need to know about the field or not?
[11:51]It's a completely different level of clarity for the customer. And they would never say no. Unless they already have a lot of experience with mediation. But for clients, for clients I've experienced in practice, it's really important to them. Sometimes to the extent that they say, come on, let's show you around the company or something, we need to see how we work. Or you can come round to our house and see the garden and what it's like. So there's a need to really familiarise you with the area of conflict. I would now have opened the loop to come back to the accompanying counselling, because the other thing for me was, so to speak, with your agreement that this was handled differently among professionals, among mediation professionals, the answer with the field competence as already dismissed from the client's point of view. Yes, I do believe that if you don't have field expertise, you have to have a huge amount of experience to be able to convince the mediants of the process or, to put it another way, to be able to create trust in the process. It happened to me the other way round. I was once involved as a co-mediator in a university environment. There was a dispute in an institute that was somehow in the field of chemistry. Biology, I don't know, neuroscience. I have absolutely no idea about that. And it was highly contentious and had been going on for years, with lawyers and media interviews, so it was terrible.
[13:19]And then we sat there with four people from this institute. And the first question one of the main parties to the conflict asked me was, what do you actually want here?
[13:31]
The importance of field expertise
[13:27]You are not at all competent as a family lawyer in our field. So what's the point? Then we had another long, very, very difficult conversation. And at the end, in a closing statement, I just couldn't help but realise that this is actually a family mediation. We have a doctoral supervisor, we have a doctoral candidate's daughter, we have two members of staff at the institute out of around 30 employees. It's like a family that almost defies belief. But everyone had to laugh.
[13:55]So it was clear that the interpersonal aspects of these conflicts are so family-like that it might not be a bad idea to have a family mediator sitting here who also deals with inheritance conflicts and so on. So that was very interesting. But it came across to me as a concentrated power that I was told they had no idea whatsoever. Yes, that's exactly how a family reacts at the beginning. Anyone who crosses the threshold here has to be part of the family somehow. Yes, I'm often asked whether I have any children, whether I'm even married. I try to answer the questions humorously, because I can't say anything. And of course you can always ask the counter-question, which naturally stresses people out. If you then say, yes, what does the question mean to you? Why is it important to you to know whether I have children or no children, whether I'm married or not? But I've already answered it with the answer, I was once a child, if that's enough for you.
[14:54]That's a good one too. Yes, but that's where counselling comes in. Not to be taken seriously or seen as an affront, but it's a legitimate question.
[15:09]
Dealing with assaults in mediation
[15:05]And for the person at that moment, it's an exam question. And usually an offer to continue, because the end. Yes, we are constantly being scrutinised and that's the point, we always have to defend or maintain our stance, perhaps to put it another way. And if that is attacked, that is, the competence to sit here at all, so to speak, what are you even doing here?
[15:31]So we have already touched on field competence. Then, of course, there are also mediants who want to determine the time, place and content themselves. They simply want to help set the framework conditions for which we are actually responsible. Or what I also love is when the flipchart is suddenly no longer mine, but then someone goes and starts writing something on my constellation or drawing or visualisation without being asked. So these are all kinds of attacks that happen quickly in mediation, but they always have a reason. So there are interesting clues as to what state this person is in at the moment, what needs they have, for example, a need for recognition or yes, that provides information, yes. And you can't just be angry about that, or rather, intervision and supervision is of course very helpful for me when I realise that I'm experiencing feelings of anger or rage that I need to take home with me.
[16:26]Then I discuss the levels in the intervision. To sort out what is mine and what belongs to the other person. I recently described this situation at the congress I attended in Switzerland, also in Lucerne, together with a few colleagues, and my colleague George Colreaser, who has been working in the field of leadership and leadership development for decades, described a situation like this in detail. And he also picked up on the fact that this is all an opportunity for counselling, to make a good intervention now. And it's not an affront. That's why I didn't immediately agree with the defence stance. I have a problem with the attitude anyway. But that these ideas that clients bring in.
[17:12]How something has to be, how mediation has to be or how mediators have to act in order for this to move forward, that this is always good material to illustrate the conflict dynamics. And that they use it to show and present themselves. I really think that's a skill in counselling work.
[17:35]To continue in exactly the same way, instead of somehow clarifying the framework and insisting on it again. But the process sovereignty here is mine. No, I only realise when it's under attack. And that's exactly why I hold preliminary talks. I'm a fan of preliminary talks because I find it so interesting to observe how people deal with them. So I have the option on my website that you can simply book a free 20-minute phone call online. Because there are also people who don't know enough about mediation or other out-of-court conflict resolution models and want to be informed
[18:14]
Preliminary talks and their importance
[18:12]Or think at the beginning, I think I need a lawyer. Then they realise that maybe I don't need one after all, maybe I need something else. And it's really interesting how they deal with it. So some book, others book and write me an email to see if the booking is really confirmed. Then some call on time, where it also says, please don't call. That also has to do with attorney-client privilege, because I don't know if I call a number and suddenly a child is on the line or something. Or otherwise I'll just call. And then there are those who, for example, clearly state that I don't give legal advice. That would also be totally dubious, in 20 minutes without any documents. But then I'm bombarded with legal questions. So there are a lot of things, aren't there?
[18:51]I'm asked a question, I try to answer it. And I'm not even a sentence and a half into it when I'm interrupted again. So the whole behaviour of the conversation, this person is opening up. The way in which I am treated as a professional, I am accepted and respected in my role. It's also an important question for me: can I get into a deeper conversation with these people within, let's say, seven or eight minutes? So is there accessibility on both sides? Then you can also work well together, whether in a counselling or mediation capacity. Of course, this option is also open to the other party to the conflict. So it's often the case that at the beginning I have both parties one after the other, sometimes even together in the same conversation from the start, and only then do I decide whether this should really be mediation? Does it make sense? Am I in the right role? Would another specialist perhaps be much more suitable, for example a psychosocial specialist for parental issues? Yes, a kick-off meeting like this is actually the right instrument? Yes, very important. But if you describe it like that, it must have been easier as a registrant. That the clients know that this is legal advice.
[20:05]Is there anything that you miss in mediation counselling or where you say, oh gosh, if I could have taken that over from the legal profession, then a lot of things would be easier for me again? No, I took the hourly rates with me, it's not like that. I'm not of the opinion that it should be levelled down, because two people are effectively more strenuous than one. That's the way it is. There's no reason to have dumping prices here. Let's set that aside. But it's an important point that the level of fees is sometimes orientated towards the basic professions and then such differences really do come about. On the contrary, you have to be aware that as a specialist family law solicitor, if you have a contentious court case, then, just like the courts, you have the approximately 30 per cent of the population who really need support or advice or legal representation or even a court to make a decision.
[21:03]
Differences in mediation
[21:04]These are not the most pleasant cases. And if you think about the fact that, again, perhaps, I'm not an expert on statistics, but a good proportion of them are relatively highly contentious, I think that's the right word, but then it borders on the pathological for everyone or for the parties. When you're in the boat as a lawyer, in court proceedings that go on for years, it's not funny. I don't miss that at all. On the contrary, in mediation it's like that, the difficult cases, which of course we also have to about the same extent.
[21:33]And then it's decided relatively quickly whether the setting can be maintained by the three of us or whether one person somehow realises that it's not working for me, nothing is coming out of it, it's not moving fast enough. These are all subjectively good reasons and should be respected, but then the mediation is over. And if it goes well, it can also happen that ten sessions go by and you ask yourself something, is this malpractice or do I have to do something now? Yes, but that's one of my standard phrases for the price question. If it goes well, it becomes more expensive and we find out relatively quickly whether it's right for everyone. And that makes the work easier. I can build a bridge to the topic I left open earlier. Especially in family mediation, where my wealth of experience is not very high. From time to time, I also accompany families and couples who want to separate. Sometimes a company is involved and so on and then that's the transition. From my own understanding, I also regularly offer legal counselling, which you should do elsewhere, especially when it comes to upheavals in life concepts.
[22:45]Individual counselling, life counselling, psychological support, so that this is not only allowed, but will probably also be helpful for the process. And I always wanted to ask someone in the field, so to speak, is it common for this to be done or is it seen more as the work of the mediator, this psychosocial counselling, when entire life concepts are dissolved. How do you handle it?
[23:19]Hey, you who are listening to this podcast, grab your smartphone now and leave feedback, a star rating, so that others can listen to this podcast too. And now the podcast can continue.
[23:39]So certainly not a personal union, that's not my specialism. No matter how often I eat my heart out, let's say, and also do further training that involves interprofessional dialogue, which I also find very important and very exciting. I also work in an interprofessional practice with a psychiatrist, psychotherapist and social worker,
[24:01]
Psychosocial support during mediation
[23:58]who does very demanding family counselling. I would never do that myself. I would either recommend that you perhaps seek therapeutic counselling or support for the duration of the mediation, because this is exactly the phase in your life when you need to reorient yourself, find a new foothold, new perspectives and separate. It's a huge task to separate properly. So many people can't, or can't do it well, or need help. Where their children are perhaps also confused, where the whole living situation changes, the care concept. And every six months anyway, when you have children, things change, study plans, working hours and so on. So a whole family, a whole mobile, with grandparents still attached.
[24:44]Sometimes new partners. There's an incredible amount going on in this system. And it takes a while for things to calm down again. To be able to take a good look at yourself during this time and realise that I think I need support, simply a companion. I need a place where I can talk about my feelings in private, where I can perhaps get a push in a different direction. I can't do that as a mediator in the narrow sense. I wouldn't think that was right either, in an awake, methodical way. But of course there are, I would say, small mini-coaching sequences within mediation sessions. And they are also completely transparent because the other party is there. And it can also be very relieving for the other party.
[25:27]If the dialogue no longer takes place between the two of them all the time, but perhaps only between the mediator and one party and the other can listen. That has a very relieving effect. Because the worst thing that can actually happen again and again is that either only the parties talk to each other and I don't get involved at all. That does happen. It's like a game of tennis, ping-pong. I'm then like in the umpire's chair and look to the right. Or there's an audience here. And the other thing that I find just as unpleasant and difficult to resolve is when the parties only turn to me. So when I'm bombarded with, I have to say positively, offers of dialogue, but from both sides. When the message is that I'm only talking to the mediator now because I'm not talking to you any more. The message is also clearly audible. That's exactly the kind of stress.
[26:17]But there are many situations in between, not as an offer or as a concept or as a method, but which simply develop in a way that is more about working together. And perhaps also reformulating things or recognising the needs of one party, which are always expressed in different words that are easier for the other party to understand because it doesn't come across in the same trump card, in the same choice of words.
[26:43]
Arranged mediation in Switzerland
[26:39]Paula, you mentioned the concept of organised mediation earlier. Switzerland is not only an independent country, but also not in the EU, so it has a completely different legal basis than Germany or Austria, which were influenced by the EU directives on mediation. What is the situation in Switzerland? You said earlier that there are no legal issues surrounding mediation. How does that work in your country? Yes, there are different types of, shall I say, recommendations or orders. We know the recommendation of mediation, that's what courts or child protection authorities like to do when they think, oh, these parents should really come to an agreement, let's say, about care plans and they always get into trouble or handover situations and then they are urgently advised to go to mediation.
[27:33]These are the difficult cases on the mediation side, because they are actually highly contentious parent couples who are reluctant to go to mediation. Actually only to make a good trap in court again. We tried it, it failed, let's continue here please. So ordered mediation is more effective because it is considered a child protection measure. Simply thought the other way round. We focussed on the children and said, the way these parents are behaving, they are so entangled in their conflict, they no longer have an eye for the needs of their children.
[28:03]And this must not go on for so long. It needs to be resolved promptly so that mediation is arranged for the parents from this perspective. And that then has the great advantage that these are not the easier cases for us. This is done by the court, the court or Cash or the child protection authority. And the advantage for us on the mediation side is that it's a very clear framework, so there's an order from an authoritative authority behind it in the sense of a warning and stop sign. If you don't get this resolved, then we will have to decide for you. But here's another exit before the end. You then make an order, i.e. it is put in writing, what is the order, what are the topics? So it's not a free choice of topics. Instead, the order will contain the children's issues, such as childcare and, in rare cases, child maintenance, which is again technically based on figures.
[28:55]But more so the parental issues, where the parents are also effectively competent and it would be their responsibility to ensure that their children can develop, despite the separation of the parents, that they are well, that they are materially secure, that they have contact with both parents, also with other family members and so on. That would be the parents' job. They would have to solve that. And the authorities have now become a bit more relentless and say that it's your job and there are specialist centres that can help you with this. Then it goes in the direction of arranged counsellors or arranged mediation. For us now on the mediation side, I haven't done that many mandated counsellors so far. There are of course...
[29:36]You also have to tailor your mediation to this. It's not about the parties being satisfied and saying thank you for helping us, they have a decision to make. And they are under a lot of stress themselves. So it's crazy, funny, energy-sapping to spend an hour and a half, let's say, just shouting at each other and accusing each other. And these are very, very difficult situations. And it made me very humble, let's say, as a mediator.
[30:05]
Challenges in arranged mediation
[30:00]So after many hundreds of mediations, I have ordered some of them. I no longer have the feeling that I can achieve miracles. Quasi. So this fantasy of omnipotence that you can also develop as a professional. You just have to be able to look behind it and all that, and then everything will become much happier. Yes, and mediation is great and that is somehow, yes, the invention. Yes, now we're getting to my goal. Yes, exactly.
[30:25]No, humility means, for example, that I am very aware in mediation sessions that after three or four out of six sessions you may be ready to organise a handover situation in such a way that the children are less stressed, as are the parents. And that an appointment is kept at all. In other words, very small things where others say it can't be true that it takes four sessions or something. But that's the way it is. And these are very, very small steps. So that's why you have to bake small rolls and have humility. And I mean, you could now pull the stars out of the sky for this quarrelling couple. That won't work. So you have to lower your own expectations a little. You have to lower your expectations of yourself and not despair. And think, I'm so ineffective here, yes, so I'm doing something wrong. Yes, even the cherished truths of, so to speak, these are all just cries for help, to finally be heard. And if I listen properly as a mediator, then they are happy and reassured that you actually experience boundaries. The instrument of your own person and what is feasible.
[31:37]Also in terms of what change is feasible and is allowed or even wanted. Yes, and especially people who have to go through mediation are so in need of being listened to, as you put it earlier, but also of being held. So they need support. They are so lost.
[31:58]But they don't behave like that on the surface. Yes, they're allowed to. Yes, that's their right. But there is one question, so to speak, I don't know exactly how the majority of mediators think or work, but it would be interesting for the audience to have their say.
[32:16]
Voluntariness in mediation
[32:16]Would you say that it's right to organise mediation there and make it an instrument for decision-making and move away from the claim that it's only for someone who wants it and that it has to be completely voluntary so that you can work there properly as a mediator? Yes, voluntariness is the noble ideal, but if you think about workplace conflicts where a superior says you're going to go to a mediation meeting and resolve this conflict so that your team can continue working here, they're not there voluntarily either.
[32:52]Voluntariness does not necessarily have to be assumed in the high sense. The person always has the choice, even if mediation is ordered, to simply sit down in this room and say, I'm not going to say anything for now. I'm not taking part here. I'm not interested. I'm only sitting here because the judge wants me to. You can do that. Experience has shown that this will soon dissolve, because the issues being heard tend to be too important. Because then the other party will have plenty of room to talk and then it will start. Should I continue to stonewall and keep quiet or do I want to get involved because the issue affects me just as much? And then they're there again. And then there is a certain degree of voluntary involvement again. I don't necessarily see that as an obstacle, but from my experience with arranged mediation, I actually find the approach of arranged counselling in family conflicts much better. Because in my experience, many parents need a bit more input as to what their children actually need. So it's about changing the focus a bit so that they get a view of the children's needs and their parental responsibilities again. And in some circumstances, or probably to a large extent, psychosocial professionals are much better suited to this than we are, now legal mediators in the narrower sense.
[34:08]And I also think that if parents have their own personal conflicts with each other and with people, from the children's point of view, if they have already addressed them, especially the children's issues, then they are perhaps better suited to talking about money in mediation afterwards and so on, where the friendship ends anyway, the climate changes immediately, which is also difficult as a topic.
[34:35]
Child-centred approaches
[34:33]But then something else has happened before. And there is, for example, a very interesting approach, I think both in Bern and in Basel, which are completely different. So in Bern, since last year they've had a centre, I think it's called, for families in separation, which provides arranged counselling for families. And in Basel they have a different concept again.
[34:58]I think it's only been running since this year or has just started or is running now. I read about it in Basel. I'm going to include it in the show notes. It's a new concept, yes. And I find that very interesting in the event of contact difficulties, if somehow the arrangements that the child should now go to dad on Friday evening and so on, if that somehow doesn't work out or is constantly undermined, it doesn't always have to be the opus-holding mother or something, if it just doesn't work out, yes, then the person who would actually have visiting rights or care rights, on a smaller scale, can turn to the authorities and the authorities then, simply put, simply send two specialists who are sent out within a maximum of 14 days, i.e. relatively promptly.
[35:42]We should visit the parent at home and have a low-threshold conversation. So not authoritatively, we are the child protection authority and this is now a case of child endangerment, but just go there deliberately and, to put it bluntly, simply ask what the problem is? Do you just have an appointment, calendar difficulties? Are there any reservations? What do you see as the problems here? So that you can intervene very quickly, because experience has shown that the longer you wait, i.e. if you just watch for half a year how visiting rights don't work out, handovers don't work out, then it's over. Yes, I think it's interesting, structurally interesting, that this is, so to speak, under the motto, or as a gateway, the best interests of the child. In other words, it's not one of the parties or both parties who are relevant for mediation, but in the case of family matters, there has to be a child. In the case of separating couples, this is not possible, but there has to be a child for this arrangement to take place, just like with the organisation. The organisation says, so you work for us voluntarily, you are employees here and we have demands on how you behave. And if you carry on as before, then we can't allow it. Please clarify that. And then the organisation's order is not against voluntariness, but is a consequence of the fact that the parties have said, I want to work here.
[37:10]And that simply has a framework. And I find that interesting because it means that the contextual conditions of the conflict parties are decisive for the start of the mediation talks. And up to now, I've seen far too little light shed on this when it comes to questions of mediation, where the mediator has always relied on these conflict parties.
[37:31]Are they here voluntarily? How are they here? What's the procedure? As if it's a three-person event. But it's never, and in families it's never just a question of the couple, it's always a family matter. Or in the neighbourhood, if two of us shout at each other, the neighbours are disturbed and they say, hey, that's not how it works. But you don't mediate with the neighbours, you say, hey, behave yourselves and if you need help, get it. I think that's an interesting point that I've been emphasising more and more.
[38:06]
Mediation and social framework conditions
[38:02]I also see this being taken into account in such matters. And in Germany, I think this mandatory mediation will now also be introduced. At least that's what I've heard in one or two rumours, that it's now becoming more important for families, which I think makes perfect sense.
[38:25]I think there are also projects in Germany, not just in Switzerland, such as Kinder aus der Kleine, where the needs of the children are at the centre, where the preliminary discussions, which are not cheap either, take place with the parents and then there are the parents' groups and the children's group. And from the children's group, i.e. several evenings and events, a very clear concept, very professionally accompanied, questions were then also asked from the children's group to the parents' group, for example. We then all have different parents from different families sitting together, you always do this with several families at the same time, maybe six families or so. The children are at the centre and articulate their needs in terms of questions, requirements or simply, yes, and how do you want to ensure that we can continue to pursue our hobbies now that you are separated? Then maybe two parents have an argument about who's going to take the child to the swimming pool and who's going to ice hockey and so on. Then they have to sort it out and come up with a sensible answer. And I think these are encouraging approaches, where children are placed at the centre and parents are confronted with the fact that they have a task that needs to be resolved promptly so that their children, let's put it this way, can ideally say in ten years' time, when they are a bit older, yes, you did that back then, when they are a bit older, I just...
[39:51]It's beautiful, it's great. I've just realised that myself. No, when they're older, ideally they'll be able to say yes to their parents, 'Gosh, you did OK with the separation. You did a good job. So good might be too much. But studies say that after two years, if you ask people in families, how is it for you two years after the separation? So also for the children, no matter what age, and actually all family members could at least say, yes, it's okay the way it is. Then you've achieved a lot. It doesn't have to be good and great and okay is enough. Yes, it wasn't all great and good and satisfactory before, but that it's back to the level you're used to or where you don't have any particular swings up or down. Carola. Yes?
[40:45]That's the topic of family mediation, so to speak. I would go back to the topic of mediation in Switzerland. I was at this congress, black business mediation. There was a lot of talk about Switzerland as a nation.
[41:00]As a mediator nation in diplomatic matters, simply because there were also high-calibre speakers who represented UN mediation issues, so to speak. What is the landscape like in Switzerland on the subject of mediation below these diplomatic figureheads, where Switzerland is known for its mediation expertise? What is the mood like among mediators? Are you happy with the way things are going? Well, I can't speak for everything here. There are specialised associations such as the Swiss Association for Family Mediation. So we'll have to ask others. What I have observed is that mediation is often chosen, sometimes simply for cost reasons. People realise that court proceedings and our lawyers' fees are much higher than in Germany. We don't have a lawyer's tariff like you do. It's really expensive. And the deposit you have to pay, depending on the amount in dispute in civil proceedings, is also really expensive. The middle class is not as litigious as in Germany, let's put it that way. That's where it starts. That's no longer the case in Germany either. That has already declined. Yes, but you won't believe it. I never feel more Swiss than when I advise Germans in Switzerland. We really do come from a different negotiating culture.
[42:15]And I've been here too long. I came to Switzerland when I was 15, went to school here, studied here. I have no idea whatsoever about German law. And German nationals who come to me quickly get the feeling that just because I still speak some High German, I understand what they are like and what their needs are. But that's not the case. I'm more rooted here, let's put it that way. It's an intercultural thing. Oh yes, definitely. Of course it is.
[42:42]So if I can help with intercultural family bonding, that's fine. But of course I observe that. The negotiating behaviour of Germans and Swiss is average. The Gaussian bell curve is also different on average. And the fact that we have a government made up of seven federal councillors, for example, means that we have to find a collegial solution behind closed doors and then represent it to the outside world. Of course, this is very similar to mediation, where you work out something in a closed setting that you then represent to the outside world together. So this kind of consensus culture in decision-making is very well established in this country. Then there's also the, I don't know if you're familiar with this, the word, consultations. You may have a legislative proposal, you realise that you need to regulate something here, then a mandate is sent to a department, i.e. from the executive, to please draw up a proposal on this or that topic. And in the course of drawing up a basis, which can only then be discussed in Parliament, a so-called consultation procedure is carried out. All political parties, all other groups that are somehow involved, including NGOs and everyone else, are sent this draft and are allowed to comment on it. And in the second round, important concerns are already incorporated, so that parliament still has a lot to argue about, but never in the same way as in the Bundestag.
[44:07]Because a lot of social concerns from broad circles have already been incorporated and there is a greater balance. In other words, sitting down at a table with other people, to put it bluntly, with other people who have different opinions, different needs and discussing them until you have something that everyone can say yes to, albeit sometimes grudgingly. That's a tradition here and in that sense it's good ground for mediation. Yes, I noticed that straight away. A colleague said that at this congress and it was even included in one of the keynotes. Politics is mediation in action. That was the definition of politics and I would assume that we live in Germany. No one outside the political arena can say and see it that way. But since I also got to know the political establishment a bit.
[44:56]Have I immediately agreed. The is actually like this. Man must itself assemble on one Table with People, from those one exactly white, the See the Things different and we have one Decision to meet. And there seemed me immediately, that the in the Switzerland so to speak stronger on Display side also Accepted and known is. So like you now the Procedure described have, is Yes completely clear, the must now itself together. Whilst the perhaps in Germany in the Committees and in the parliamentary Committees behind the Television simple disappears, behind the Television news or the political Operation, that the Coalition itself again at odds has. But the sit just as often together. Since dare I me even not to introduce, like Mediations in Germany expire, when Politics so expires.
[45:41]Well, probably exactly the same, but the Presentation so to speak in the Image is so to speak then better to understand, that one thinks, Mediation is so one Harmony event. Since goes it at somehow one Consensus find, with which then all Satisfied are. But in the Practice is it whole frequently, we are satisfied, that we one Consensus found have, but the is simple exhausting and we have much not achieved. And it is nevertheless OK, there a Piece more realistic on it to watch. The would I now say, succeeds perhaps with yours Kind the Politics or of the Policy mediation better, the more sober to see. That the frequently one Compromise event is and not the Search to the ideal Consensus, the many Mediators Yes but still as Realistic strive for in each Mediation.
[46:32]Yes, and it is also the Awareness, that these Processes lengthy are. As a result, that we a completely other System of government in the Switzerland have as in Germany, where itself not about the one Faction with the other times alternates and there goes everything to the left or on the right.
[46:48]Man has much longer Periods, the one overlooked and one leaves itself also more Time with this negotiation processes. The must not from today on tomorrow or within from four years, but the may also longer last. And must also longer last, because not the Duration decides about the Quality of the Result, but at itself really to find, that really all Participants somehow Yes say can to the, what elaborated was, the lasts in the Mediation also. When it to long lasts, even, I have it before already times mentioned, then must one perhaps at some point also times scrutinise, what the The event shall, but it must also times a End find.
[47:21]
Conclusion and outlook for the next episode
[47:21]Mediation is a Beginning and a End, the is whole important. And I use these Situation, this Expression, at now also the Podcast the End to the water. So very I the regret, but actually are we ans End arrived and it has me insane much Fun made and was very insightful. Many Thanks to, Carola. Yes, Thank you also. The was my Conversation with Carola Reetz, Lawyer and Mediator in the Switzerland. In the Field of work to Home Family mediation and I could with her the Main features the obligatory, arranged Mediation discuss, the Advantages and possible Disadvantages in the process, as but also again the Mediation culture in the Switzerland a little delimit and Compare to the Mediation culture here with us in Germany or also European. Union justified. When you these Episode please has, then snap you but yours Smartphone and leave one Star rating and one Comment to this Episode. Say yours Friends and Colleagues Notification, that here podcasted becomes to Conflict management and Mediation and switch then at the next Paint again a or subscribe equal the Podcast. I thank you me, that.
[48:32]Music.
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