INKOVEMA Podcast „Well through time“

#244 GddZ

Mediation in the face of the German Mediation Act

Does the Mediation Act help (organisational) mediators, does it get in the way or is it just there?

In conversation with Tilman Metzger

Lawyer, mediator of the first hour in Germany and passionate clarification helper; trainer for mediation and clarification help; co-founder of the Federal Association of Mediation; specialises in conflict management in organisations: Conflict management in organisations, associated with Sascha in the mediator pool of the Fraunhofer Gesellschaft.

Small series: Fields of mediation

Contents

Chapter:

0:02 – Welcome to the podcast Gut durch die Zeit
1:07 – Mediation work in the face of the Mediation Act
3:10 – Changes due to the Mediation Act
4:42 – The influence of mediation on organisations
5:31 – The role of the manager in mediation
8:02 – Voluntariness and responsibility in mediation
11:00 – The development of the clarification aid
14:34 – Challenges in organisational mediation
26:59 – External and internal mediators
30:00 – The value of external perspectives
32:08 – The robustness of the clarification approach
36:56 – Voluntariness in the Mediation Act
46:16 – The hurdle of mediation
50:37 – Dealing with voluntariness in the mediation process
56:38 – Personal responsibility in mediation
1:04:31 – Conclusion and outlook for future topics

detailed summary

This episode of the podcast "Gut durch die Zeit" is all about mediation work in the context of the Mediation Act, which has now been in force for several years and is influencing the way mediators work in organisations. Together with my colleague Tilman Metzger, I discuss the practical impact of the Act on our mediation activities and reflect on the changes we have observed in our practice.

We begin with an assessment of the fields of mediation in which we work, particularly within organisations. As mediators working in these areas, we have a special perspective on the role of the participants in the mediation process. Tilman shares his own experience that the Mediation Act has led to a greater awareness of mediation in organisations. Many HR managers and decision-makers are more aware of the possibilities and benefits of mediation, which has led to an increase in mediation assignments.

We go on to discuss the specific challenges associated with the Mediation Act, in particular the question of the voluntary nature of the parties involved. We emphasise the importance of developing a clearer definition of voluntariness in the context of organisations, as the reality is often more complex than the law might suggest. Tilman and I note that the perception of voluntariness in workplace mediation is often uprooted, as the decision to participate often arises from pressurised situations.

A key issue is the question of how the manager should be integrated into the mediation process. We argue that it is necessary to clarify the responsibility and role of managers within the mediation process. During the discussion, it becomes clear that the manager not only acts as a client, but also as part of the mediation process in order to promote a functional team climate.

Tilman shares his thoughts on different mediation approaches, such as clarification support, which aims for co-operation within the team! The variations in our practical approach make it clear that there are different ways in which mediators can act in organisations and how important it is that all parties involved pull together.

Finally, we discuss the lasting changes that the Mediation Act has brought about in practice and how mediators can reinterpret their role in a changing legal framework. The exchange between us also sheds light on the ambivalence and challenges in mediation and leaves room for further discussion on the Mediation Act and voluntary participation in such processes. If the topic is of interest to you, please share your thoughts and experiences with us to further the discussion.

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Complete transcription

(AI-generated)

 

[0:02]
Welcome to the podcast Gut durch die Zeit
[0:00]And it's not far-fetched to question the voluntary nature of this. Welcome to the podcast Gut durch die Zeit. The podcast about mediation, conflict coaching and organisational consulting. A podcast from INKOVEMA. I'm Sascha Weigel and I'd like to welcome you to a new one. And today's episode will be about mediation work. The core of this podcast becomes the topic, so to speak. This time, we want to take a closer look at mediation work in the face of the Mediation Act, which has now been in force for a few years and we mediators work in a wide variety of fields in the face of or on the basis of this Mediation Act. And I have invited a colleague who, like me, works with and in organisations in his main field of work. This is to describe the fields of mediation that we are specifically focussing on for this episode. I would like to welcome Tilman Metzger to the podcast studio. Hello, yes, hello Sascha. Nice to be here again. Exactly, and you've been here a lot
[1:07]
Mediation work in the face of the Mediation Act
[1:05]and now also at shorter intervals. Just a few episodes ago, we spoke here about a completely different topic, which was also a challenge for us as mediators due to the geopolitical changes and the challenges that we mediators face as a result. This time it's actually about our specific working practice. And we had already hinted at this a little in this episode.
[1:29]Practically speaking, we focus on two aspects. Firstly, that we really focus on the Mediation Act, which is our basis, our framework, when we act. And when I say we, I mean above all mediators who are commissioned by organisations.
[1:50]Dealing with a dispute within the organisation, i.e. specifically between members of the organisation. That is already a specialised field of work. But did I announce this correctly or did I understand from your work as a mediator that this is your main area of specialisation? Yes, absolutely. So that's what I advertise on my website. A few spouses come to me very rarely and then I sometimes do it just for a change, you could say. But the real focus is on the company mission, in management, within works councils, within teams, teams and managers and so on. So everything that happens within companies is my main focus. About two thirds of my work is in this area. And with regard to the Mediation Act, there's a lot to discuss now that I've had several years of experience. Let's put it this way, you are a mediator from the very beginning and have experienced how the idea came about, how it materialised, that a mediation law seemed necessary or at least desirable, perhaps even undesirable for some. Undesirable, but then it came and was passed in 2012 and then it came into force and took effect.
[3:10]
Changes due to the Mediation Act
[3:11]Has anything changed for you in your practice during this time, so that this mediation law, which quite clearly has this classic triangular constellation in mind, has presented itself to you in a new way because you have simply changed the field or the mediation cases have simply changed?
[3:32]At the time when it was passed, I had already been working in this area of workplace mediation for a long time and I have to honestly say that the main difference I noticed as a result of the law was that many more HR managers and people in companies actually knew what mediation was.
[3:53]So I would say that the great advantage of the Mediation Act is that it was discussed in the FAZ and elsewhere in public journals at the time it was passed. So that is first of all purely pragmatic as a mediation entrepreneur.
[4:07]First of all, it's a huge advantage that we have this seal of the law and that nobody can think that mediation is esoteric or something like that because it's such a strange word. So that's very practical, the strongest expression. I've noticed in the meantime that my mediation assignments have increased again. I definitely associate that with the Mediation Act. And I can only describe my development from the sidelines, because in the early years, in the noughties, when I was preparing for the Mediation Act, I was rather
[4:42]
The influence of mediation on organisations
[4:37]from the literature or simply from my review of the mediation literature as part of my dissertation. When I read about mediators, it was very often the classic triangle, the topic, i.e. the basic principles. The process was frequently discussed and very often in the reference area of family mediation. I worked in administrative science and experienced administration as a commissioning organisation, so to speak. The issue there was: is it even possible, is it even legal, can the administration negotiate the law and so on. So these rather theoretical problems. And then later in practice, like you, I was often approached by organisations that saw this as a suitable instrument for a perceived problem in the organisation. For me, that was a major change in the perception of mediation.
[5:31]
The role of the manager in mediation
[5:31]In what way? What do you mean? Just in terms of acceptance or in other ways?
[5:36]So I'll move on to the first point, which is that it's often not one of the parties to the conflict who called me or wrote an email, but a person who was responsible. You can't recognise anything in the Mediation Act. It doesn't say anything about it. It seemed to me, and I wanted to ask, so to speak, is that even possible beforehand? It was a relevant topic. The idea that mediation is commissioned by people who are not even defined as parties to the conflict. I'll leave the passive construction as it is. Yes, in my mediation biography there is a very striking transition from one mediation approach to another. You're already familiar with this, including from earlier podcasts and exchanges with colleagues. I did the entire clarification support training at TUMON again from 2009 to 2010 and clarification support is now recognised as a migration approach. The special thing about it is, or perhaps I'll take another step back, before that I practised the mediation approach, which I now refer to as interest-oriented migration. In other words, what we learnt from the Americans, to put it bluntly. And I would say that it still defines the mainstream of migration in Germany today. And back then, according to this interest-orientated mediation approach, it was typically a kind of triangular contract. So you already said triangle, I don't know if you meant exactly this triangle, but that's what I thought.
[7:05]Okay, a company makes an enquiry and there is a manager or an HR manager who thinks that migration makes sense and then, under this heading of migration that is in my interests, it was the standard to say, okay, the team that is affected by this or what is at the heart of it, I would also like to get to know that, they should get to know me. Mediation can only come about if, on the one hand, you as a manager or HR manager say, yes, we want you as a mediator and if the team says the same. That was the standard, so to speak, which I believe many other interests still have today. And that has changed for me with the clarification aid. So it's clear to me that with the clarification aid, the assignment and the decision as to who is the mediator, etc., is now a matter of course. And if this takes place, it is carried out by the relevant bodies, especially the responsible manager. So we have exactly two points, so to speak. One is the people involved.
[8:02]
Voluntariness and responsibility in mediation
[7:59]The Mediation Act only says that it is the parties to the conflict. And in practice, especially for organisations, the responsible, competent, other bodies of the commissioned organisation are also involved. I think that's the point. And then, of course, the issue of voluntariness. When it comes to voluntariness, I think we can jump into familiar waters. But it's good if we can bring a little more clarity to it. Basically, if you take another close look, Section 2 (1) of the Mediation Act states that the parties choose the mediator and of course you can argue about that in the organisational context. So you could say, well, if there are conflicts in a team, then it's the parties, then they should actually select the mediator, but then we are the rich ones, which most of them are, then we have definitely reached a problem that needs to be interpreted, I think. This brings us to the first point where this mediation law presents us with practical tasks, let's say quite loosely, where it is not self-explanatory. But once again, I found the point good, in the sense that I realised something, that interest-oriented mediation, which was strongly influenced by the Harvard concept, a negotiation concept for the negotiating parties, is made fruitful for mediation because it.
[9:15]It fits and because it has the same foundations, idealistic foundations and has also somehow become practically en vogue in America. And the clarification aid comes, so to speak, from the Hamburg school Thomann has realised?
[9:33]Yes and no. Okay, the smile is good. I would probably ask Thomann, who invented it? The Swiss invented it. Well, it was actually Thomann who, in a way, developed the clarification aid from 1979 onwards and then, when he met Friedemann Schulz von Thun - that's where the Hamburg School comes in - he exchanged ideas about it and then did his doctorate with Schulz von Thun with the clarification aid and the two of them, as close friends that they then became, bent over it together. And so this theoretical formulation and writing down actually happened in co-operation between the two of them. But this type of work was actually invented by Christoph Thomann. He brought it with him from the Swiss mountains, so to speak. Exactly, Swiss mountains. They met at Ruth Kohn's, this psychotherapist who also worked a lot on conflicts in the world of work, communication in the world of work. They met there as young, bearded people at the beginning of the, when was that, 80s. And then Schulz von Thun was totally fascinated by what Thomann had brought to the table in terms of conflict work and said, don't you want to write a doctoral thesis on this? And Thomann said, And then you were a doctoral thesis, said, yes, I'm a professor. What, you're a professor? That's how it started.
[10:50]And then we did some research somewhere. They then advertised in the newspaper for married couples who received free migrations.
[11:00]
The development of the clarification aid
[10:58]They were then researched. But that's just as an aside. So in that respect, yes, it's also the Hamburg School. Ah yes, okay. I just had this story in my head about how the title "Klärungshilfe" came about. And that the topic of business therapy was also being discussed beforehand. And then it was said a little bit that perhaps it didn't quite fit. Exactly, it was Stolz von Thun who suggested Klärungshilfe as a title and Thoman had started with business therapy and Schuss and Thun said, well, that doesn't sell quite so well, something like that. Yes, not quite connectable, exactly. Well, let's take a look at mediation work. Perhaps first of all, the people involved. You've already read out the standard, which talks about the parties.
[11:38]From a legal, systematic point of view, one would say that this refers to the parties to the conflict who are endeavouring to find a solution. But you could also broaden it and say, yes, that might be all those responsible, especially those who pay for it. Let me put forward the following thesis, because I have often done so elsewhere. I am surprised that mediators in organisational mediation do not come up with the idea of bringing the person who wants the mediation, initiates it, pays for it and has a high level of interest in it going well to the table as a participant in the mediation. That's really surprising. I mean, you could write it into the law that every party has to be involved.
[12:29]Yes, and that's where we historically find a big difference between interest-orientated mediation and clarification support. So interest-orientation, a lot of people used to, I think that's where a lot of people are coming from, but in the past it was said that the manager should deliberately not be involved in team conflicts, because they only interfere. So the topic of voluntariness, femininity, blah blah blah. And that's where he says Thomann and the clarification aid are quite the opposite. The manager is crucially responsible for what happens in the team. So the manager's protective function and also the manager's responsibility towards the company to ensure that the team works functionally. Plus, of course, every manager who has been there for longer than two months has contributed to the fact that a conflict has been smouldering for so long. So in this respect, you can't even seriously claim that a manager isn't somehow also a party. And again, the manager naturally also represents the employer, the company, the organisation in the situation. And therefore the organisation is also represented as a party by the manager. I don't know whether you would see it the same way.
[13:32]Absolutely, absolutely. I also come from a different consulting background, from organisational consulting, where it has been good practice for many years, both for coaching assignments and, of course, for larger processes, that the organisation awards the contract and initiates the process and has a high level of interest. Sometimes to such an extent that you have to act as a disciplining consultant, where you have to say, yes, they won't get any internal information from me from the discussions or training sessions or anything else, but it is understandable that they have an interest, of course.
[14:12]So this area of tension between representatives of the organisation, and by that I also mean perhaps the more distant manager who does not come directly into a setting, perhaps wants or needs to be there, but that this is worth examining.
[14:34]
Challenges in organisational mediation
[14:28]and also from a mediation perspective, that seemed to me to be a flaw right from the start. But the focus is simply that the Mediation Act is actually the classic triangle. Exactly, and when you say classic triangle, who do you actually mean? Conflict party A and conflict party B. And in a miraculous second, they say we both might want to use mediation after all. Which is really very rare, even in marital disputes or something like that, where both parties want to resolve something. But the fact that they then say at the same moment and jointly instruct mediation is very idealistic and therefore also very rare.
[15:08]I'll remember this miraculous second. I think that's a very nice caricature of this idea, that the two parties say, yes, let's do it, it's rarely done at the same time. Exactly, so that means that the legislator has basically, just as you say, you could also say it differently, assumed private mediation. Yes, private. Divorce mediation, spouses, things like that. Inheritance. I believe that the people sitting around the table at the time, some of whom were mediation organisations, were also involved in this process. And my impression is that the influence of mediators working at this private level was very strong in the drafting of the Mediation Act and that this organisational perspective is not actually visible at all. And that's what we're dealing with now. In any case, I think it's a point that such fields of work may have been represented there.
[15:57]I also explained it to myself that it is simply possible. So mediation law is derived from and often docked onto legal experience from the courtroom. So the courtroom language and the courtroom experience on the subject of neutrality and independence, the judges are also recognised as role models for interpretation. In the courtroom, there is a plaintiff and there is a defendant. Yes, and in court, everyone is equal first. Yes, exactly. Yes, that's right. And if you want to handle it differently, then you have conflict parties A and B and they have to commission mediation. So little practical experience has been incorporated into the legal text. Whether that's good or bad, we can talk about that again. Maybe that's not the worst thing. Exactly, so on the one hand we have the issue of those involved. Perhaps we still have one or two things to discuss. I don't find the Mediation Act to be a hindrance when it comes to asking questions. You probably don't either, do you? Yes, there are special situations. As a rule, the majority of the cases I deal with involve a whole range of parties. It's usually the team and the manager. In such situations, there is actually very little crossfire. Where it really becomes more difficult sometimes is when one individual stands out in particular.
[17:21]In other words, where a single person stands against an entire team or a person somehow feels used by the manager.
[17:29]And that's where I experience it, when individuals who are already relatively close to the edge with their nerves are happy to seek advice from the works council or other legal experts. And then sometimes, which is rare, the idea that the mediation law states that the parties choose a mediator and that mediation is voluntary also comes into play. So in such cases, I particularly experience that people then invoke voluntariness and I would also like to choose. Otherwise I experience this less in teams. I don't know what it's like for you. Do you mean the selection of mediators? Or, yes, yes.
[18:02]So I also make sure that it's not just the client... Then usually one person, sometimes a small committee, of course experiences me and says, okay, can we get involved, but also the people who come later, that they also get a phase where things are already getting started, but not yet really and they can have a look.
[18:27]Can we somehow rely on Mr Weigel or do we trust them to do that? I also see this selection of parties in organisations as really being for everyone involved. Everyone involved then also signs the mediation contract, from the client to the people who join later. Sometimes it really is the works council or another person. They are then all defined, not as parties, but as participants in the mediation. So for me, that really is a different practice. I can still see the difference between what I see as conventional interest-orientated mediation and mediation. So I would ask you a bit pointedly the other way round. If you're doing organisational development, is it also the case that you have to get to know all 2000 members of staff and say, yes, we'll take this organisational developer, or isn't it ultimately a very small committee or even the boss who decides? I suspect that's how it works. Yes, I would say that in other processes that are not mediation or do not fall under the Mediation Act, it certainly has a different connotation because there is no such law. But even in larger mediation processes or clarification discussions, where mediation law is applicable, everyone has the right to say, do I want it or don't I want it. For most subsequent parties, however, it is not such a decision before the start.
[19:50]But where I emphasise that they can end it at any time during the process. So I really have to say that I would use a very harsh word here. At this point, the medicalisation law is dysfunctional for me. For me, it's a bit like if there was a law about horses and how to keep horses and the law says that a horse has five legs. So I would say, sorry, dear law, a horse has four legs and not five legs. And then the law can say what it wants. And in this case, I really don't quite understand the bridge.
[20:23]The bridge is that I was already working as a mediator before the Mediation Act appeared and was defined and formulated, and specifically as a mediator with the approach of clarification support. And for me, this means that even before the Mediation Act came along, it was state of the art that this responsibility, who is actually mediating here, is in my eyes a responsibility that belongs to the company and that belongs to the manager who represents the company. I would just like to create a counter-scenario. Imagine there is a team of 15 people and they are to be mediated. Two people want mediator A, three people want mediator B and so on. So they have to come to an agreement. If you make this question of who will be the mediator the basis of a democratic event, then as an employer you are at the mercy of what this team can achieve, which is of course a pretty big deal in some circumstances, especially in highly escalated conflicts. And I experience it in the same way as in two-person processes when a decision-making issue does arise. This is a real litmus test for the willingness to resolve this conflict in the context of mediation. So in practice, it's not the case that I explicitly present myself to 15 people before the mediation to see whether they want to work with me. Sometimes a selection committee actually does that, a pitch. But.
[21:49]In view of the Mediation Act, it has to be said, in view of this, it must be made clear that people can terminate at any time and that this has no consequences from a legal perspective. But because mediation is also an instrument of the organisation, so to speak, to solve a problem that is still there, it does of course have de facto consequences. Because then the manager or the client says, okay, you're not going to resolve your conflict through mediation either. In other words, where you can make decisions, make a proposal, work out a solution that we then implement. So I or we as an organisation have to make a decision that is suboptimal from your perspective. It has consequences and I experience that this consequence is conscious, that this is very rarely the case. That it is said recklessly or for tactical reasons that we won't take the mediator and we don't like the moderator either and the mediator isn't suitable either. I believe that a high willingness to adapt is formulated in a negative way, as well as confidence and a willingness to invest.
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[23:33]So I think we are discussing two sub-chapters at the same time, namely the selection of the mediator and then the voluntary nature. It is said that this possibility is in the law, the parties can end the migration at any time. For me, that is essentially an expression of voluntariness. So we're discussing the two in parallel for the time being, and both are the same, both as far as the selection of the mediator is concerned, as well as the question of how long a migration lasts and whether one takes place.
[24:05]In my opinion, it is easy to define this as a clarification assistant by the responsible manager. And not because it's written somewhere in a clarification helper book, but because the manager has ultimately been given the responsibility by the company to ensure that this team works. So the responsibility upwards is functioning, the responsibility downwards is protecting the individual. In this context, I think it's the manager's job to decide. Aha, we have difficulties in the team, are we going to organise a dragon boat race, are we going to have a barbecue, are we going to do team development or are we going to do a migration and who is going to do it? And how long will it take? How much of it do we need? In my opinion, these are all things that managers are paid to decide and socialising them in the sense of grassroots democracy, in my opinion, shifts responsibility downwards, which doesn't belong there at all. I really have to say that the Mediation Act may be understood in this way, that's what it says. Then I would say, yes, but if the Mediation Act says that a horse has five legs, then it can be in there for as long as you like. It's simply not true for me. And for me, if it couldn't be interpreted in the way that I practise, then I would simply say quite clearly that yes, the Mediation Act needs to be adapted to reality, namely the necessity of reality. That would be my somewhat defiant reaction to it. Defiance is not uncommon in the context of law.
[25:29]That's especially true for people who have a high degree of personal responsibility paired with authority issues, so to speak, and that's where I really get involved. In this case, the law is the law, but I find the point interesting and I think... When you say that I can relate to it much better when it comes to internal mediation, i.e. when an employee has been trained as a mediator and the organisation now also uses them, and I would say that this mediation tool really has a leadership character, i.e. that it is a leadership tool for the manager and says, I'll use it and with these mediators. In the case of an external mediator, and this is how I often or exclusively work, I find a mental construction more appropriate, where the manager or leader says that this conflict is a problem for us here. We can't leave it like this.
[26:33]And as it involves a high degree of relationship work, how you work together, how you coordinate your efforts, this is not something that we can simply impose from the outside, but you are ultimately the experts there. And this emphasises the personal responsibility of those involved. And I ask you in mediation to make suggestions,
[26:59]
External and internal mediators
[26:57]that we take on as an organisation. And that is the task. If that doesn't work, if they come back out and say, well, we can't solve this on our own, not even with the support of an external person, then the task is to make a decision as a manager, so to speak, without suggestions from those involved.
[27:16]But rather how it arises as a perspective from leadership. And then it's not just a pure management tool. An external perspective is also included, which I wouldn't want to incorporate into the management hierarchy. And that's where I see a difference between internal and external mediators. So basically, if I've understood you correctly, you're saying that migration involves a high degree of relationship work and that, to a certain extent, it can only be successful if the parties involved in the conflict are also involved and in contact with each other. And because an external person then joins in, it's no longer classic internal leadership, but rather the people themselves can suddenly decide who is allowed to do it and how long we want to do it at all, and it's not much better to break it off. That's how I understood you. Perhaps, if there is a conflict over a scientific issue that has arisen in the research and development department, then you could simply make a decision on the merits and say, that's our direction, our strategy, we'll take it. If it's a question of company policy or the works council is involved and works council co-determination rights also play a role, then an internal mediator can act more effectively, be more culturally appropriate and perhaps also brew their own juice. Perhaps a duo of works council and personnel mediation, a kind of co-mediation. That's why I think the external mediator role is special.
[28:40]Because a different perspective, a completely independent perspective, is deliberately used for the mediation work to create proposals. So I actually see that differently. So it is the case that, if you have already mentioned the Hamburg School and this connection with Thomann, both with Friedemann Schulz von Thun and with Thomann, the manager wears two hats, the professional hat and the human hat. In other words, this human leadership, also in the sense of Ruth Kohn, ensures that the atmosphere is right, that the relationship is right, in other words that humanity and efficiency go hand in hand. In other words, taking care of the relationship and being responsible as a manager for supporting successful relationships in the workplace is an integral part of the normal understanding of leadership. And according to this understanding, the manager is naturally involved.
[29:38]In every mediation, every T-Mail, every T-Mail and in this responsibility for leadership on a human level, the external mediator is, in a way, a kind of interim manager, but in the presence of the actual manager and on their behalf.
[30:00]
The value of external perspectives
[29:58]takes special care of these human things. But that makes it something other than human leadership. Ultimately, it's about the company doing what it should be doing anyway. It is also about making sure that things work well on a human level. And just because it's human, it doesn't become a voluntary disposition as to who mediates and how long they mediate, but as such.
[30:19]Yes, but that's also the concept for employees, so to speak. They have their employee hat, the role, i.e. the role of manager, the role of employee and their humanity, which they also bring with them. This is no different for managers and employees. They both need each other to work well. So I don't see the focus as being on the manager; employees have just as much of a part to play in making leadership a success and have a duty to do so. But that brings us to another discussion, probably on the subject of leadership. I just see the strength or I like to emphasise the strength of external mediators, which I don't see as interim leadership, but actually enables the value of the external perspective. And that is the only one who can say, according to the Mediation Act, of course with a justification, but who can say from the successful process, so to speak, you know what, I don't care what you do. I have no stake in it, I can leave again. That has a sock effect that internal mediators can't utilise to the same extent. I would say that the advantage is to describe again what happens or what is possible when the question of who the mediator is and how long the mediation lasts lies with the manager and not with the team. It also makes the process more robust. So I believe that this style, which is characterised by explanatory assistance, this way of dealing with it.
[31:43]It also means that you can still mediate in areas where the employees are simply so on the fence that they can no longer agree on the process level or block mediation because they find it kind of rubbish. If you work according to the explanatory aid style, then you have a robust process,
[32:08]
The robustness of the clarification approach
[32:04]which still works even when almost everyone in the team says it's rubbish. It needs the manager to say, I'm convinced. And then it works. And of course, the special thing about the explanatory aid is that it also has tools to deal with this. We also have very robust instruments that can also lead to people becoming more and more convinced as the mission progresses. Of course, the goal is that we end up shaping things together. Of course, that's the goal and of course you want it to be voluntary, but it can also be the case that someone isn't really... How should I put it? So not really convinced. That can happen. I see it that way too. I also have the impression that clarification support in its approach and then also in its appearance, i.e. the people who stand for more endurance and for, you say, robustness, stability. I also have that impression. I think the organisations also get that impression and say, yes, we need someone here. So if we get involved, we have to create a framework.
[33:06]Where not everyone leaves immediately. So there's this nice saying, I think, from Kettering. If you could somehow disembark in the meantime, no one would ever have sailed the sea.
[33:18]And you need to be able to say, now we're going in and the mediator mustn't be the first to flee. And that's where mediators are in the same boat as other mediators practising here in Germany. Our power does not relate to the content. That's not the point, our power is based solely on the fact that the manager says I want him. And that is my decision, that this is the right way. Our robotic nature is based solely on this, so to speak. If the manager is no longer convinced, then that's it.
[33:48]This brings us to the point where I think we can move on, even though we have already touched on it, to voluntariness, because there is a lot here and not only because clarification assistance and traditional mediators or, in the beginning, there really was a legal conflict about the interpretation of voluntariness and was hung up on the question, is this still mediation? We talked about this with Kirsten and there is plenty of literature on the subject, I don't want to rehash it, but this understanding of what voluntariness means is still under discussion today and I also think it's a problem. Especially when you're dealing with the operational context, if you have 15 people sitting there, then you're damn lucky if everyone cheers that there are mediations. Yes, exactly.
[34:33]I also made this clear in the part of my presentation at the Hanover Conflict Management Congress. Even if I had or must have had the impression that the trains have left the station. The issue of voluntary mediation is now enshrined in the Mediation Act and it doesn't seem to me that there will be any immediate changes. It's all at the level of interpretation. But we have made it very clear in Germany that voluntariness has such an absolute character, such a context-free character. Only when people say, I feel like I'm here voluntarily and I'm happy to do it now, then somehow mediation seems to be ready to get started.
[35:20]That doesn't apply to the perspective of the mediator, it's not my way of working either, the legal situation can be interpreted differently. But I think you have the impression that we in Germany are strongly attached to this absolute voluntariness or context-free voluntariness in the mediation scene? I would immediately agree with you. I suspect that the majority still see it that way. And that's obvious when the law states that mediation is a voluntary process. But there have always been people working in organisations, even outside the mediation scene, who have always questioned this. And one of my favourite quotes is from this book by Eidenmüller, Wagner, Mediationsrecht. It says on page 7, but it should be emphasised that the free decision to mediate is not intrinsic to mediation. This is available in printed form from Otto Schmidt-Verlag. The Munich lawyers.
[36:21]The Munich Group, exactly. Yes, so in that respect you can say that it's not at all absurd to question the voluntary nature of mediation, so much so that it appears in such a fat mediation law book, so to speak. But yes, I think the majority think so. Yes, I would say so too. If we look at the legal situation internationally, we have to say that this is not common sense and not at all usual, but many have mandatory mediation, mandated mediation, and are increasingly adopting it. So there has also been a change and the European directive has also
[36:56]
Voluntariness in the Mediation Act
[36:52]The doors have been kept open and speaks of mediation being ordered by the court. We have decided quite differently in the implementation of the Mediation Act. And I think, or as far as I have observed correctly, also by consensus and at the request of the mediation scene. Yes, and I would simply say that this was the situation at the end of the 2000s and beginning of the 2010s, so to speak. And that was the position of the people who were there. It's not God-given. The Mediation Act can be changed. So I really still believe that we should discuss this, yes. Why? What advantages would that have? I'll give you the template so that you can get started. I'll definitely get on board. I'm definitely jumping on the bandwagon. Don't worry.
[37:40]What are the advantages? First of all, to put it bluntly. Is the voluntary nature of migration a complete illusion, regardless of which area we are talking about, because it has to be said that there is pressure in the system. Pressure comes from within the system, namely the conflict system. Imagine two business partners and one of them says, my dear, that's not how it works. We've been fighting about this and that for weeks and months. I'm heartbroken. I'm in favour of migration. Of course, we can now legally say, yes, it's voluntary. Then the other person could say, oh, mediation, I'm not going to do a swan like that. According to the law, he can do it that way.
[38:22]But what are the costs? The costs are very high, they are social costs. Because the person who proposes mediation can say, yes, I wanted to talk, I'm the good guy. And the person who says no to mediation simply has to realise that saying no to mediation means escalating the conflict. You can no longer talk to them, now you can only take legal action or, or, or. So it's automatically an insinuation, which means that refusing mediation automatically comes at a cost. And in that respect, this voluntary nature suggests a kind of carelessness, like, oh honey, let's do that tonight, I'm so bored. Shall we do some mediation? Oh no, not mediation, let's go to the cinema. It's not like that, it's that you're under pressure, and I just think that voluntariness actually makes a mockery of people's situation, to be honest, but I don't know what you think about that. I think that's a good point. So for the humanity of the parties to the conflict at the moment when you demand that, I think that's a good point. But in my opinion, there are very few cases where voluntariness is actually violated. I hardly know of any cases. I wanted to do a series on cases where voluntariness is violated, but I can hardly think of any. In the case of the two managing directors, what would that look like?
[39:36]So if someone doesn't want to do the mediation, then it won't be done. So, full stop. They simply don't give the order. So what do you have to do now to get them to take part in mediation that is not voluntary? If the business partner says, if you don't do mediation with me now and go into dialogue with me and we get someone in to help us, then what does he say to make it happen? If he says, yes, then I will sell my shares or I will end this business relationship.
[40:08]Yes, okay, that's a good right, that's what the dispute is about. If the other person now says, okay, then we'll do mediation, then it's voluntary mediation. No mediator would say, oh, I'm sorry, you said no at the beginning and then this statement came, so that's forced. That's not coercion. So you'd have to think about what would be involuntary if he said, you're going to do mediation with me now, otherwise I'll report you to the police because you committed a hit-and-run five months ago. That would be involuntary mediation because he's combining an end with a means that don't belong together.
[40:46]We know this from the offence of coercion. But those are the only cases. So I would take the same view as you for now. So in a way, if I say you do mediation or I shoot your hamster dead, it's clear that it's not voluntary mediation. And I think where things are likely to get more tense between the two of us is precisely in the internal context, because I actually believe that it is simply dysfunctional in terms of a normal hierarchical organisation to turn this question of the voluntary nature of the process into grassroots democracy and to say as a manager, I have a suggestion, how about me now, it's very, very important to me, how about this? And then you ask the parties, okay, so the team members, how about this mediator and how about two days of mediation? To be honest, I don't think that's right. I believe that it's actually the manager's responsibility and that it's also their responsibility to bring it to an end. So for me, team mediation is simply a particularly good quality service meeting and since when has it been possible? Are you allowed to end a staff meeting just because you don't feel like it anymore? So that's new to me.
[41:50]That would be a second point for me. I don't think we disagree on the result of the first point, nor on the intention, but I think we differ on the reasons. The dysfunctionality of the organisation is of relatively little interest to me as a mediator. So that's not my business. So if the organisation decides what suits it and what doesn't, that's not my business. But if I take the employment contract and that is the basis of the order, tomorrow a mediator will come and then we will talk about the conflict or please go to mediation at such and such a time, then the employment contract is the only basis for this order and you have to look at what it says. And it also says between the lines, keyword contract interpretation, that a co-operative collaboration is assured or strived for. And this naturally becomes particularly virulent when there are conflicts. So by signing the contract, I am agreeing to my employer, my contractual partner.
[42:56]So that you don't immediately activate this slippery slope of boss to top and employee is structurally inferior, you have to think about contractual partnerships. And I concede to my contractual partners that you will put strangers in front of me and put strangers in the team and I will probably say in this face that I will work with them cooperatively and therefore... It is a very common and very normal, i.e. very familiar legal construction that the agreement, the agreement in principle to mediation can be interpreted into the employment contract upon signature. And of course it would be much nicer if it contained a proper mediation clause. If the worst comes to the worst, we call in external support. And then there's no problem at all. You can say yes today to an action that goes against our will tomorrow, but today's will is more binding. And that's a contract. So you commit to something. And to put the whole thing into practice, it's just a matter of him starting the mediation appointment. Once the mediator has given his opening speech and explained the process and presented himself as a person, i.e. as a mediator, each party can then say, I don't think this makes sense and I'm leaving, I'm ending the mediation.
[44:22]Yes, I'm pleased that you see part 1, which you described, as a common extension practice. It's an attempt at expansion that I've been trying to propagate for years. So basically, with these normal expectations that you can expect of a person working in a team according to their employment contract, namely that you cooperate, that you communicate and that, if that doesn't work, it can also include a mission, an assigned mission, we're totally in the same boat. For me, it just doesn't make any sense at all if you take the law literally at that point, so to speak. It says that the parties can terminate my contract at any time. I find it a bit cute that you then say, yes, they can just march out, they only have to be there once. I think that's a bit of a misnomer. So what's the point of this interpretation that you're making if it means that they have to be in the hall for one minute and then march off? So what's the point of such an interpretation? Not just legally, in the sense of being clearly integrated into the legal system, but in practical terms, this hurdle is the decisive situation for mediation. Most conflicts fail because of this hurdle, because they don't get off to a good start. These conflicts.
[45:32]It's a situation in which two or three conflicting parties who are working off each other, who are annoyed with each other, manage to say yes at the same time or experience that someone is coming to help us in an impartial manner. Once this has been achieved, all studies show that mediation achieves an overwhelmingly high percentage of good outcomes. But most mediations don't materialise because this hurdle is not overcome. This is also the reason why many countries are introducing compulsory mediation, or mandatory mediation, in many areas of work. It is simply counter-intuitive,
[46:16]
The hurdle of mediation
[46:14]to start such a procedure. You have to experience that first. That is not at all natural, not at all understandable. It's not at all how mediators have often imagined it, that you long for a mediator who then miraculously lets you work out a win-win situation. And it's worth saying that you have to make an appointment, you have to take time off work or the organisation has to say that you're not going to work now, you're going to work as a party to the conflict at the round table. And that's a huge effort. And there are also good practical reasons to say, okay, I'll take this on board, but I'm leaving. I think this is a circus and I'm not taking part.
[46:56]How many parties or how many mediations, I mean, do you know, have you experienced, where people actually marched out again after they appeared? How is that with you? Yes, I would say, I mean, these are all very selective cases. So it's not good statistics or good basic data, but I'd say one in 20 in the organisation, then someone leaves, they belong. So mediation is a cynical event. It doesn't fit into the strategy at all. I experience that from time to time. I would say that one in 20, maybe even less, one in 15, someone leaves.
[47:39]Exactly. So what's actually not that much, for me it's like this, so since I've been working as a clarification helper, i.e. for 15 years now, I've had exactly one case and that was a case where overnight, it was a conflict between team members and the manager and then overnight or in between the two meetings we had, the team members made themselves legally aware again and then they looked into the law and said, ha, voluntarily and then they marched out, so to speak.
[48:06]So that was really the only case I had. And what I'm actually getting at is that what we do in this approach to clarification is that we very, very consciously ask about mixed feelings at the beginning in the arrival round and say something like going to the mediator is like going to the dentist. There are rational reasons for this, but nobody really wants to do it. I'm interested to know what that's like for you. And these kinds of questions have the effect that people, the team members, become very, very open or some become very open with the motto, this is pointless here, we've already talked about it so much and they've been chosen by the manager, etc., etc., etc. Pp. So that's when the resistance comes up. And then we have a certain way of dealing with it with the so-called mini-contract, which is a five-stage methodology. And what this ultimately achieves is that we listen very actively and to a certain extent also show understanding for the sensitivities and still say first of all, if your fears materialise, would you be prepared to let me know? So this type of intervention has the effect that people remain seated for the time being, but with their arms folded and they are allowed to say that they are not here voluntarily. If you allow people to say that they are not here voluntarily.
[49:19]Is the probability that they will remain seated higher than if you moderate it a little? That would be my hypothesis. I haven't been able to research it, but it would be my hypothesis. Absolutely. Yes, I agree. So it's exactly like that. There are also two levels, and I have to say that the Mediation Act really interferes with our work. One level is, is this legal or not? And that is not a question for mediation practice there. That is perhaps a question at the back of your mind or a question that you have to clarify with a client so that they act in accordance with the law, but not with the parties to the conflict on the ground. I'm not going to get involved in a legal discussion. However, it is a mediation challenge to sit there with someone who believes that they have to put on a good face or derive claims from the legal text of voluntary and say that nothing can happen to me if I simply say no here. I think it's very challenging to provide good counselling and clarification. I'd like to ask about that in detail. So paragraph 2, section 2, it says that the mediator makes sure.
[50:25]That the parties have understood the principles blablabla and voluntarily participate in the mediator. The mediator model is certainly voluntary. So, what are you actually doing at this point?
[50:37]
Dealing with voluntariness in the mediation process
[50:35]when the mediator starts with the team? Yes, I'm not asking if they're here voluntarily. But what are you doing? I ask about it and look for it, sometimes I don't ask about the term "voluntariness", is there any indication that they are being forced here? That he is forced, not that he feels forced. There are very few cases that are voluntary. So in my legal understanding, there are lawyers who see it differently. That's clear. They ask, to put it bluntly, do you feel that you are here voluntarily? If he then says, no, I have better things to do, okay, fine, then this is not authorised mediation. You can see it that way. I just don't think it's right and it's not laid down in the law. In other words, I would actually have to...
[51:18]See signs that she doesn't want to. For example, I had a mediator, it was a small company. I once explained this in another podcast. She sat like a cliché. Arms folded, looking out into the wide world. Next to her was her boss, who would like to talk to her. An explanatory conversation. And so she sat there the whole time. And her attitude was, I have to be here, but I don't think this is right. Then she said they could go. This is a voluntary event. So I said that once.
[51:47]Yes, but I fulfil my duties. I have an appointment. She could have left at any time. She had a different construction. She also came to a different emotional conclusion. But that doesn't mean she's forced to sit there now in terms of the law. Even when the boss said she could leave at any time, she didn't. So basically, I understood you to be saying that the mediator makes sure that they are there voluntarily, which is something that you first observe on a body language level, as I understand you, i.e. you don't explicitly ask about it. And then there's also your experience, I understand that even if the boss or you say it's voluntary, very few people use it, so to speak, because they have, I'll say, good reasons for doing so. It just costs something if you go. It could look something like that. It's also very practical. So that's also the double level when you ask, why are you here today? Or what are your reasons now? I had an appointment in my diary, I'm supposed to be here. If people think that it's not voluntary, but that the boss has said so, then I can consider whether it's a clever mediation or counselling intervention to make it clear when your boss says what you have to do and not do here.
[53:02]Then that is an expression of what you are allowing him to do because you are fulfilling this labour contract here. Many people go to work because they feel forced and say, I have no other choice and so on, but it's not a slave organisation. They allow the employer to tell them what to do and what not to do in terms of time and subject matter and give their consent in principle.
[53:27]The fact that they do this with an emotion of I-feel-forced is psychologically interesting, is many things, but not legally forced. We are also allowed to voluntarily live the concept of life that we are forced to breathe.
[53:47]So I would simply feel more comfortable with it if you didn't have to make so many contortions and simply, I'm imagining a teachers' service meeting, so to speak, that starts at 9 o'clock and at 9.01 everyone gets up and runs away because they say, that's nonsense here, we don't need it. So that simply doesn't correspond to the reality of the workplace, that cooperation and communication work like that, but the reality is exactly what you've already said, that I sell my time to the employer for a certain purpose, so to speak, for a certain purpose, and that usually involves communication and cooperation. And that means, in the situation when you say, okay, the team is having difficulties with each other, then that is also part of these duties to communicate and then it doesn't need this contortion of voluntariness and then it doesn't need this you can walk away if you want, because it is simply, so again this word dysfunctional in the sense of working together in a company can't be the answer, I think. It just causes a bit of a dislocation and, in case of doubt, it causes a certain percentage to actually run away, which benefits neither that person nor the company, nor anyone else. So it's a disaster when people leave immigration, it's basically an escalation without equal.
[55:01]So in that respect, I just feel uncomfortable. I would really say that I think it would be better if this, we can end the parties at any time now, if it really comes out of the law. I don't think it really does justice to the reality of the company. That's still my experience. I completely agree with that. It's work, it needs justification, but then it doesn't degenerate into cognitive lecturing, but good counselling work. And that's where it's really... Corrosive, you have to say. Being confronted with the Mediation Act in organisational mediation sucks. I think what we can actually do as mediators is to design a process, a mediation procedure, in such a way that the parties, who have just turned up involuntarily, realise, oh look, the mediator actually understands me properly and oh look, he's not working specifically for the purposes of the manager, but I can really say openly what I criticise about him and I also get support, he actively listens to me, my issues are put on the agenda. So if you work really well, it means that people get a taste for it and ideally know why they are there. I'm not at all interested in people being handcuffed and gagged, on the contrary. But this idea that it's only a voluntary event, I just think that's a weird idea in this context.
[56:23]As an alternative or as a point of reference in the Mediation Act, I find the principle of personal responsibility much more appropriate, which lies underneath it as a principle and is actually developed via the Mediation Act.
[56:38]
Personal responsibility in mediation
[56:38]And then the question is, do I go, do I stay or do I leave? That is much more decisive. So the question, do I go out here now, confronted under the heading of voluntariness, what I am allowed to do, is a completely different emphasis than if it is under personal responsibility. As an employee, as a participant, as a relationship partner, I simply have a responsibility towards myself and the other person. And I have to fulfil it. And I can't decide. No matter what I do, it has consequences and leaving often leads to escalation, and staying, hopefully not, but sometimes it does.
[57:23]Yes, well, at any rate. Ultimately, you have to say that anyone who leaves mediation internally marks themselves out as someone who runs away when things get difficult.
[57:33]So that's not an advantage for further development in the company. So that's another thing I find difficult about the voluntary nature of it. It looks so nice, but in reality, people like that certainly mark themselves. And a manager who experiences this, we've given two days off, that's the last resort, to really get along on good terms and then he runs away. So the chances of this person getting on in the company are no longer so high, because of course people learn from it. Yes, absolutely. Running away is a key word, Tilman, because time is running out and so I think. But what we've worked on is really important. And there are certainly one or two points about the Mediation Act that still need to be discussed. And now I'm not sure whether we can go into that in such depth here. What would be points from your point of view where you would say that this should actually be considered when the Mediation Act is scrutinised again? I have to say that, from my point of view, there is one point that could be looked at again, and that is the autonomy and freedom of organisation that you have already mentioned. Here, too, you have to say that the charm of migration, similar to agile organisations, is of course that you give employees as much freedom as possible.
[58:53]The chance that a solution will work really well is of course there, it's a given, but you still have to think about it in every phase of migration where it's about agreement, well, people are working with it.
[59:04]The company context and cannot simply define the pace of work, the production target and the production content at will. So there are etc. There's a lot around it. So in this respect, one would say that the so-called autonomy of the parties is naturally limited by the interests of the company, which, just as you see it, should not actually be a problem due to the contract they have. But that could be discussed at best. So for me, it's completely normal that the manager is involved in phase 4 and that they can also say, yes, dear children, I can imagine that you would like it, but there are other decisions in the company and we can't dispose of them. So in this respect, the importance of a hierarchical organisation always comes into play, even in phase four of the solution. Yes, I agree with that. Okay, I'm a friend of short laws and the Mediation Act therefore also gives me a lot of pleasure. On the whole, it hardly causes any problems because it is also a law to promote mediation. It hardly limits mediation. What I would think about is if the Mediation Act were to be scrutinised again and the issue of voluntariness and participants, which we have already discussed, but that would be a differentiation between mediation as a procedure and mediation skills as a procedure.
[1:00:24]And similarly to the arbitrator, who is a judge and not a mediator, can use mediation, but does not use a procedure, only the competences.
[1:00:34]That this should be taken into consideration for organisational mediation, because so many people mediate in companies, act as contact points for conflicts, as representatives for bullying, co-determination, equal treatment, etc. So it was worth looking at this again. So it was worth thinking again about whether we need to introduce a difference in the Mediation Act that makes sense in practice. What do you think would be the advantage? What would be the benefit? On the one hand, that not all mediation work or mediation activities in difficult discussions and thus in conflicts are immediately declared as mediation in the current Mediation Act. Mr Trenczek has explained quite clearly what consequences this would have in his opinion. And that this would then also provide an influencing factor, i.e. people who know in their role, I am an influencing factor on conflict dynamics, let's say a legal place where they can identify with it. Most of them don't feel like mediators, but they know that they are more than just potential coalition partners who are called upon, but who deal with conflicts in a very professional way and with mediation skills, who are well trained, who have coaching training or other counselling skills and who are called upon in conflicts.
[1:01:58]I don't understand why the role of people who work more informally, not quite formally like a mediator, who always work in an all-partisan and peace-building way, should be upgraded by such a law, and that their role should be differentiated and described in this way. Exactly. So I don't know about an upgrading, but simply a localisation. If you already have a mediation law or if you also have the court of arbitration, which is allowed to act with mediation competence but is a judge in the sense of the constitution, then that is also relevant for organisational mediation. And there are dozens of points of contact, dozens of functional roles that should not have to be afraid, i.e. fear in inverted commas, that I am now a mediator and am not trained at all. An equal opportunities officer is not a trained mediator, but is of course asked to mediate in conflicts and can then do so.
[1:02:53]So stopped, none Judgement to fall, constructive to have an effect, may itself already on the Page the enquirer Person place, so may the support, the is on each Case his Task, but must now not the Judgement take over, what there wanted is. Since would exist it, believe me, to do. So yes, would me also interest and I would also still more Understand want, what the concrete Users. So Localisation is natural for the first time, sounds very sober and dry. The is natural then for Legal scholar on all Cases interesting. So I question me straight, what the Practical benefits would be one such Localisation. That them would know, them become not as Mediators treated and them may nevertheless active become.
[1:03:31]So the listen I frequently from Contact points, the say, I may there even nothing do. I am Yes even not trained. Oh, now understand I that. So the is so to speak the possible Damage one good known Mediation Act, that there People also Sworn in be can. So one Role may I even not go in, that one the Role of the Third parties strengthens, also when he not so formal trained and practised. Exactly, a Colleague in the University, the called the times informal Mediation. The says so, the Observation is, that whole many active are, also professional trained, so not formal commissioned. So what I on yours Idea really exciting find, we have Yes traditional two various Behaviours in the Conflict. Either I hold me out or I to a certain extent go with one Opinion pure. So a Law, like you the describe, would even these middle Role of the I am on the Process level useful, but mixed me not as Power, as Powerplayer, Content Counsellor in. The find I genuine one interesting Idea.
[1:04:31]
Conclusion and outlook for future topics
[1:04:31]And so that must we now but Conclusion make.
[1:04:38]But natural only for now and it becomes a more Paint give, but today muten we then probably but the listeners some to. The becomes probably with Distance the longest Programme be. Oh, the is good like this. The is good like this. The is clear, Mr Joke. Yes, and beautiful, like we with you to chat.
[1:04:57]Tilman, many Thanks to, that you you the Time taken have and we See and listen us. Exactly, until then. Ciao, ciao. Until then. Ciao. Wow, so the was now one very extensive Programme and therefore whole fast with Tilman Butcher about Mediation work in the Context from Organisations spoken with the Focus Mediation Act. The Participant role is a whole essential Factor in the Practice, likewise the Question the Voluntariness. We have the For and Against the Actual situation various Destinations from Mediators controlled, the we different justify and also the Diversity in the Mode of operation so clarified, it gives good Justifications for that, what one does. It gives always also one Horse foot in the process, with the he manage must. The is me somehow clear become. When you and you also still what clear become are next to it and what other know should, then leaves but a Feedback.
[1:05:53]Give us one Info per e-mail or Messenger message or on the social Media, what you with this Discussion to the Mediation Act through the Head gone is. And yes, then happy I me, that you these Programme here with listened to have. Until to the Conclusion, must I today already say, held out have and when you still the Power for one Star rating have, then snap yours Smartphone and leave behind even those and a Feedback on the Podcast-Catcher. Best Thanks to, until to the next Times. I am Sascha Weigel, yours Host from INKOVEMA, the Institute for Conflict and Negotiation management and Partner for professional Mediation and Coaching training.