INKOVEMA Podcast „Well through time“

#246 GddZ

Mediation clauses in practice

What experience has there been in Switzerland with the use of mediation clauses, Mr Schneider?

In conversation with Dr Jörg Schneider-Brodtmann and Thomas Schneider (SKWM)

Dr Jörg Schneider-Brodtmann, lawyerstudied law in Tübingen, Geneva/Switzerland, Heidelberg; Master of Laws (Mediation and Conflict Management), European University Viadrina, Frankfurt (Oder). Lawyer of the Year for Technology Law, Handelsblatt / Best Lawyers 2022 and 2024; Recommended for IT and Technology Law, Handelsblatt / Best Lawyers 2022, 2023 and 2024; Recommended for Data / Information Technology, Who's Who Legal Global and Germany 2022 and 2023; One of the most renowned lawyers for IT law, WirtschaftsWoche 34/2019.

Thomas Schneider, Certified mediator at Swiss Chamber for Business Mediation (SKWM), as a partner in TSc Consulting AG (Switzerland), Thomas Schneider specialises in IT, project and change management and mediation.

Small series: Preventive and anticipatory conflict measures

Contents

Chapter:

0:07 – Welcome to the podcast Gut durch die Zeit
1:28 – Connection with Thomas Schneider
3:24 – Public relations in mediation
6:09 – Practical experience with mediation clauses
9:01 – Challenges during implementation
15:41 – The importance of the mediation clause
17:09 – Mediation in an international context
22:15 – Costs and fees of mediation
35:40 – Conclusion and outlook for future topics

detailed summary

In this episode, we talk to Thomas Schneider from Switzerland, an expert in business mediation, about the Significance and application of mediation clauses in contracts. Together with Jörg Schneider-Brodtmann, we look at the practical aspects of conflict prevention in the business sector and how mediation clauses can be a proactive strategy for conflict resolution. Our guest is the Swiss Business mediator from the Swiss Chamber of Business Mediation Thomas Schneider.

We begin by discussing how co-operation between practitioners and lawyers in mediation can be promoted in order to raise awareness of preventative conflict management. Thomas reports on his experiences in the business world, emphasising that conflicts are often only resolved after the fact and often only in court. The idea of including the possibility of a mediation clause in contract negotiations is presented as a clever approach to increase the likelihood of peaceful conflict resolution.

A central point of our conversation is the Need to recognise the different types of mediation clauses to understand. Thomas explains the differences between mandatory and optional clauses and their respective advantages and disadvantages. We discuss how a well-drafted clause not only sets out the legal framework, but can also minimise the risk of protracted legal disputes.

Furthermore, we emphasise the Challenges with which mediation clauses are confronted in practice are. There is often a discrepancy between the theoretical agreement on mediation clauses and the actual willingness to pursue this process in the event of a conflict. We shed light on the psychological and emotional aspects that play a role when clients and management are confronted with conflicts and explain how a mediation clause helps to find a neutral mediator.

In the course of the episode, Thomas Insights into past projects and shares practical experience of implementing these clauses. Together we will also talk about current developments in the field of mediation in Switzerland, the use of mediation institutions and the creation of awareness for the importance of these preventive measures.

In conclusion, it becomes clear that even if mediation clauses are not yet widespread in practice, their targeted application and the associated preventive thinking can lead to a significant improvement in dealing with conflicts. We hope that this episode will inspire the audience to include mediation clauses in their agreements and thus improve the negotiation and conflict culture in the B2B sector.

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Complete transcription

(AI-generated)

 

[0:00]I'm not giving up any rights with the mediation clause. So I'm not making the situation worse, I'm giving myself an additional life.
[0:07]
Welcome to the podcast Gut durch die Zeit
[0:08]Welcome to the podcast Gut durch die Zeit, the podcast about mediation, conflict coaching and organisational consulting, a podcast by INKOVEMA. I'm Sascha Weigel and I'd like to welcome you to a new episode. And today's episode is another part, another episode in our search for good, preventive and anticipatory conflict management, which I do here with Jörg Schneider-Brodtmann from time to time, but on a regular basis. Hello Jörg. Hello Sascha, I'm delighted to be back. Yes, I'm glad too, I'm always glad. You've been here a few times, we have several series going on at the moment. One is precisely this preventive conflict management, where we've already talked about conflict management systems. We have started another series on the topic of negotiation theory.
[1:01]We'll do that another time. Because we invited someone round today. And just looking for and finding this person was worth its own episode. But you know the person, I've already met them too, so we'll bring them in for now. Welcome, Thomas Schneider from Switzerland. Thank you very much for having me here today, Jörg and Sascha.
[1:28]
Connection with Thomas Schneider
[1:25]Hello Thomas, how do you two actually know each other? Would you like me to do a serve? Do the serve, Jörg. Exactly, if I remember correctly, Thomas.
[1:35]About two or three years ago, I got in touch with you via the SKWM, the Swiss Chamber for Business Mediation, and you invited me to do a webinar on the interface between mediation and negotiation, specifically on the topic of deal mediation, and we did that back then and that's where we got to know each other virtually. Now I'm all the more pleased that we're meeting again here, yes.
[2:00]Yes, it's always nice that you always know a certain circle and do the same. And we have quite close contacts in this area. In Switzerland, we try to do more public relations work with the Swiss Chamber for Commercial Mediation and then also invite experts to events where we try to meet more than just lawyers. I am one of them now. I now come from the business world and have actually deliberately designed it in such a way that we want to look at business mediation issues from the client's point of view and not just from a legal perspective. And of course, from my point of view, that always makes it interesting to work together with the lawyers again, to bring the two worlds together a little. And then you were a virtual guest with us in Zurich, so to speak. And we usually organise ten events a year where we try to shed a little more light on the topic of business mediation in the general public and explain the actual benefits of doing something like this. Then it's a very similar background, because we also know each other, Thomas, because you contacted me. That was this year or last year with long preparations for a congress in Switzerland. So there you are, so to speak, it's almost like a contact exchange or where there are opportunities to talk about
[3:24]
Public relations in mediation
[3:20]Mediation also, I think, from a legal perspective. So I found that very pleasant, also at the congress.
[3:28]Yes, that is of course the rugged nature of Switzerland, which has always been a bit of a problem. We really do have a large number of business mediation teams, including regional and linguistic ones, of course. And we actually want to consciously promote this, that we work together a bit across the board. We had a great conference in Lucerne in September, where you introduced us to the topic of AI. And I think these are simply topics where you can perhaps focus the wider public on the advantages of dealing with a topic like mediation. If I got the yoga mat out straight away, as is often the case, then. I don't know, Jörg, are we that quick to get the yoga mat out? Nope, but we don't have a problem getting the yoga mat out either. We are versatile.
[4:14]That's the way lawyers are. But yoga has a lot to do with movement and then maybe we'll try to move towards our topic, if you agree. Exactly. Sascha, you've already briefly touched on mediation clauses, and perhaps we'll briefly follow on from that: our main topic, which we've both been working on for a long time, Sascha and I, is the topic of anticipation and prevention in conflict management. And that's where we took on the topic of conflict-anticipating agreements, if you like, and started, I think maybe last year with a first podcast where we talked in general terms about what the essence of such conflict-anticipating agreements actually is, why do you need them at all, and then we did a second podcast, I remember last year, just before Christmas, I think, just before the end of the year, where we talked very specifically about mediation clauses, about content, how they can be designed, what they mean, and it basically ended with us saying, okay, now let's see if we can also hold discussions with practitioners who simply have practical experience with the clauses, even beyond the legal profession. And that's how we got started. Although we already knew beforehand or had looked for it, there really isn't that much out there. There are a few, let's say, sections and phases, including in the mediation literature.
[5:41]Where sometimes more, sometimes less was written about it, but very little was based on practical experience. And then I got wide-eyed, I can still really remember what it was like at the end of this congress, Thomas and I, we were still talking. And then it came out, ah yes, that's what you do, you have these clauses and you use them. So I said, okay,
[6:09]
Practical experience with mediation clauses
[6:04]Then I'll do a podcast. Let Jörg know and we'll do it. And now the time has come. We had an event in September where we also brought in the topic of clauses and contracts. The Swiss Chamber of Commercial Mediation works closely with the Swiss Arbitration Centre. And together with them, we have now tried to develop sample clauses that can be inserted into contracts, so to speak, and you can think about what the agreements are that I would like to make. And then we simply took the trouble to work together to identify the various options that I would have. Perhaps right from the start, why would it make sense to have something like this in contracts? And now I'm coming out of my story a little naturally. I worked at a major bank in the IT sector for 30 years and we never actually had a contract that we could legally enforce in court.
[7:03]Because the IT sector in particular, when I'm in the B2B business, it's difficult to find really clear rules so that I can prove to the other party that they made the mistake. Let's put it mildly. And Thomas, I wanted to reiterate or clarify that too. So you come from the IT sector, you come from business and I understood that you had already used such clauses there. How did you come into contact with the topic in practice? Well, to be honest, we hadn't had any. We were very involved with in-house lawyers and with legal disputes in the two or three-digit million range. And it always ended, as they say in German, like a Hornberger shooting. Because in the end, only the lawyers won, namely a fee. And somewhere along the line, especially in situations like this - it's comparable to a marriage - you don't just have to agree on fines, you're often married to each other, so to speak. With the software, you have to keep it running, you have to maintain it and you have to find an agreement somewhere. And that always ended with two or three years of litigation and no more. And after I finished my active time at UBS, I turned to business mediation and trained myself accordingly, because I simply saw an extreme need for action.
[8:22]For me, these are simply opportunities that I, as a company, had previously not utilised. I was never actually able to convince the in-house lawyer that there really were other options. And very, very often the sovereignty of the proceedings was handed over to the courts. And that never really led to anything until you reached an agreement somewhere, without a judgement at the end of the day, and were actually as far as you could have gone with mediation.
[8:52]So that was also a trigger for me to say that I would like to get actively involved in the topic of business mediation.
[9:01]
Challenges during implementation
[8:56]and of course convince as many people as possible that they have a clause in it. That was also my experience. I've had a few mediations with public bodies, but also with private ones. They had a mediation clause in them. And it was only because of this mediation clause that mediation took place at all. They didn't actually want to go to mediation. And that's of course a comparable situation if I now make a marriage contract at the wedding. That doesn't sound very romantic either. But it probably makes sense sometimes. And that's also the case with a contract. and then you have to think more about rationality when it comes to B2B behaviour, that I consider that there could be critical times. And there are actually many options that I could then apply. Perhaps starting from the beginning. It's more of a theoretical concept or a hope that mediation will then also be requested if the clause is incorporated.
[9:56]You just said that in one case, mediation only came about because of this. Would you also say, Jörg, from your experience of such projects, that this significantly increases the likelihood that discussions will be held again with an uninvolved third party? Yes, Sascha, definitely. We had already talked about the nature of clauses and the central elements and perhaps also as a reminder for the listeners, so two central elements. One is this temporary waiver of the right to sue that goes hand in hand with a mediation clause. The other, however, is basically an obligation to negotiate, in other words a mutual obligation to at least try.
[10:40]So the least you have to do, so to speak, is to get involved in this process, look for a mediator and get started. And that's actually my practical experience. So if there are contracts with clauses in them and there is a conflict, then one of the parties will call the mediator. I can confirm that. The probability that such a procedure will take place is much higher than if there are none. Then, as Thomas has just described, yes, it depends on whether the parties involved, in his case with IT contracts, which is also my area of work, whether the lawyers in the company or the IT department, the CIO, have experience with the process and are prepared to accept the pressure. But the use of a clause significantly increases the probability, yes. And would you also say that the existence or agreement of such a clause, we are still talking about such a clause, which is possible in many different ways, we can also go into it again in a moment, what has to be included, in terms of content, that the probability is perhaps even higher. But the fact that the contracting parties have talked about such possibilities and probabilities alone.
[11:55]Even then, the revitalisation of the contract, the process of working together is different because we have already realised that we know from each other that conflicts are not unthinkable. So they don't surprise us. And is it fair to say that there is a willingness to be more co-operative in this not yet highly escalated area? I don't think so. For one very simple reason. You have a lot of different players.
[12:25]The contracts are usually not necessarily drawn up by the people who will later be involved in the project. Depending on the size of the company, it's a bit different at Kaimu. I've also experienced it differently there. But as a rule, the project runs as it does. At the beginning everyone is happy, great contract and you leave and then at some point the climate gets a bit rougher. But that doesn't actually have much to do with the contract, which was probably signed by the CEO and the legal department. I'm more of the opinion that it's more a question of how I can convince the in-house lawyers or those who look after the companies that this is an issue that saves them a lot of effort and that they're not in this legal mindset, now I'm being a bit biased, that it often ends up in court and of course the lawyers' fees are different. Of course, many companies are not so aware of this. So I personally think that retaining sovereignty over such an issue is a very important factor. Which otherwise doesn't reach companies at all. And this is of course particularly important from a management perspective, because what kind of financial impact does it have? And these are substantial amounts after all.
[13:31]I agree with the assessment, I think it has a positive effect, as you have already indicated, Thomas, during the contract negotiations when the contract is concluded. So you anticipate the possibility of a conflict arising in the future. And then you say, yes, we want to resolve this in a non-contentious way, so not in court, that's a positive effect. And then again, if it comes to a conflict, in the meantime I would see it the same way, the project runs as it does, the work runs as it does. And I don't believe that the fact that there is such a clause, if the parties involved are even aware of it, has a positive effect.
[14:06]So I thought it was important to point out that the people who agree the clauses are probably in the minority of the people who will all be affected by them and will work with them. And so that it's no longer about personal communication, but that if the case arises that the conflicts have really hardened and escalated, we look at the contract and say, okay, what is our legal position now? How do we act now? Oh, that's what it says. We still have a few steps to take before we run out of patience. So we're deliberately talking about the B2B part of mediation here. Yes, the internal part is a completely different area, we're not touching on that today. But when it comes to B2B in particular, I don't know Germany that well anymore, but there are a few highlights of how projects get out of hand in IT in Switzerland. It's the same in the federal government in particular, where IT costs are going through the roof and projects can't be calculated in such a way that you can actually do them. I think that's now almost universally the case. And then, of course, to anticipate when signing a contract, how do we deal with conflicts? I think this is so absolutely necessary and so obvious to everyone that it actually hurts me if you don't do this. Because then you have an additional means at hand and don't give away any other. Because I think that is once again very important in the mediation clause.
[15:31]Sascha, if I may say so very briefly. I'm not giving up any rights with the mediation clause.
[15:41]
The importance of the mediation clause
[15:37]So I'm not making the situation worse, I'm giving myself an additional remedy. But you'd have to be writhing in pain every day, given the fact that this is hardly ever done. So has anything changed?
[15:52]Jörg, at least that was our assessment, that it is almost impossible to find. I also find it in practice, although it's actually not that rare with IT contracts. Arbitration is more common, at least here in Germany. There are various arbitration organisations. Arbitration in other areas, in construction law there are also comparable procedures. So I think the realisation is slowly dawning that it makes sense to go through an additional loop in such complex project situations, as Thomas says. But you can't say, at least I wouldn't say now, that this is the case across the board. Yes, otherwise we would of course have many more procedures. But it's also because the topic of mediation is simply not as widely known. And I deliberately said that a bit teasingly before with the yoga mat, because it's always very surprising, especially when I talk outside our mediation circles, how few people know and use this tool. And of course, again from my point of view, not very many lawyers really emphasise the topic. There are those who have a background in mediation, who do it very well and frequently, but the rest don't aim to offer anything like this. And that's a shame. I'm actually surprised about that. So.
[17:09]
Mediation in an international context
[17:09]Because in Germany the Federal Bar Association is active in mediation and has its own department for this. If the instrument is so risk-free that no rights are surrendered.
[17:25]If the chances of resolving highly probable conflicts are preserved, then this should, in classic mediation terms, spread like wildfire through the ranks. Hey you, listening to the podcast right now. We bring you a new episode of this podcast every week. Also for you to listen to and we need your support. Take your smartphone, leave a star rating and a comment on how you like the podcast and make others aware of this podcast here. Thank you very much and now the podcast continues.
[18:04]And that is perhaps a special topic now, what the lawyers' fee situation looks like. I don't want to go into that now. I think that's also a specific problem. On the other hand, it is an emotional issue. Firstly, when the contract is signed, everyone is honeymooning and is really happy that they've made a great deal. Most of the time, you also have sourcing companies celebrating how much money they have saved for the other partner. And when the crisis really hits, the emotional component always takes centre stage. And then it's all about showing the other person that they're not right and that they're to blame for the dilemma, because that affects my personal career again. And that also goes very much into the individual emotional area. And I'm often not rational enough to say how I can resolve the conflict, but rather how I can prove that the other person is to blame. And then we're back to the classic mediation issues. Then we would have the same dilemma situation, so to speak, as we have with marriage contracts. From a rational point of view, it's the smartest and safest thing you can do and it's not at all unromantic, so there's nothing to be said against it and yet very few people do it, even those who know what it is, i.e. even lawyers.
[19:20]I know a good lawyer from Leipzig who recently got married and he always recommends marriage contract clauses, he didn't make any himself. I think you know him quite well by now, from the last 20 minutes.
[19:35]So Jörg, is this the same situation where you can say so few negative things about clauses and yet they're not done or are there reasons why you can say that's why they're not done, that's solid? I think it's like Thomas says and we've talked about before, who writes the contracts? The lawyers write the contracts. And the dispute settlements, those are the clauses that come at the back of the contracts, where the parties are often no longer very interested in what happens at the back. And what do they do then? Basically copy-paste. Then they copy in their jurisdiction clauses. Then maybe they discuss which court should have jurisdiction. That's always a favourite. One place or the other, that's the way to go. Yes, that's a perception issue. So how much is the issue actually on people's radar? What surprises me a little is that I would have thought that it would be a little more widespread in Switzerland than here, because Switzerland does have a relatively strong, I would say, culture of consensus. But apparently, as far as court proceedings are concerned, I also hear that there is a relatively high level of litigation in Switzerland. So it seems to be similar to ours in the end. And I suspect it will be similar in Switzerland, where the vast majority of all court proceedings end with a settlement rather than a judgement. So I can only agree with that when it comes to IT. From my own experience, I don't know of a single case where a proper judgement is actually reached. It's always the case that you grind yourself to death.
[21:03]And then something comes about. What is perhaps quite good is that the Swiss Arbitration Centres, and of course the SKWM in Switzerland, are also internationally oriented. Of course, there are a lot of international disputes. And then it becomes even more complicated if I have to go to any jurisdiction. And there is sometimes a desire to create opportunities somewhere to at least go through arbitration or, in the best case, mediation in the event of disagreements. That is then emphasised somewhat more. But that only applies to the international part. And that's also how it's done in practice. That's where it gets even more important. Yes, exactly. You could almost say that arbitration is the procedure of choice for international disputes in particular. Yes, which of course has considerable advantages over state courts. The German courts are trying to catch up. There are now special chambers for international commercial disputes. This is currently being implemented.
[22:03]Arbitration, yes. Mediation also in the international arena. At least not much here. I think it's very strong in Asia.
[22:15]
Costs and fees of mediation
[22:11]USA too. But in our country, at least in my perception, it's significantly less. Compared to arbitration proceedings, it's significantly less. What we have now also tried to do in order to push the topic a little is to provide ready-made clauses, which today are mostly in English. In other words, you tell them what the options are, what can I offer, what does it look like, so that it's easier for Jörg to copy and paste for the lawyers. I've already noticed that, even in the German literature. The mediation centres, the mediation institutions, they have also formulated such clauses. There are various clauses in form manuals. So they do exist. But perhaps we'll come back to the few practical experiences that do exist. Thomas, you also reported this case before us, where mediation came about as a result. Now we don't have a large base rate in order to make any trends clear, but how do you rate mediation? Does the fact that a clause like this has an impact on mediation?
[23:16]And how, shall I say, does the interaction work? Well, the situation is usually completely different from what both parties want in mediation, because you usually go into a freezing cellar where both sides say, yes, now we'll just pop in for a moment. Then we have fulfilled our duty. And of course it's essential that the mediator at least tries to find common ground. Maybe even with each other then, yes, the nice word bonding might come into it a bit. Where are the common denominators, where you can perhaps avoid things escalating further and one person losing face? I think these initial discussions play a very important role so that people don't say, well, now we've been there, ticked off, now we're going where we actually want to go. They are practically looking for a way out, where is the first reason to leave. So if you give them the opportunity to leave, they're gone. So that's more likely to be the situation with clauses.
[24:13]I find that interesting, that you definitely have a downer there, but at least you can get started. I see it the other way round. The glass really is half full and I have the opportunity to convince people, what can I offer you? So we often do a shuttle mediation so that everyone can work it through from their own side and as a mediator you can then go into the topic a bit and afterwards there might or might not be a bathroom somewhere close and where there is common ground. I think you can explore that very, very well. But you have to give them the chance to find a common denominator. If they don't see it at the beginning, of course, the process is deterministic. Perhaps, Thomas, it also plays a role what kind of conflict we have. So if we stick with your example of IT projects, as you mentioned, I think it makes a big difference whether the project is basically still running and there are difficulties, disruptions of some kind, or whether the project has failed.
[25:15]You sit down together afterwards and clean up the mess, so to speak. Because then you usually have a pure distribution conflict. In case of doubt, the parties never see each other again. So then it's all about who gets how much money from whom. In my experience, the starting points for mediation are of course much more difficult than if I actually still have an ongoing partnership, i.e. an ongoing contractual relationship or if they have to deal with each other again and again. For me, the analogy is a divorce without children or with children. That's the difference. You still see each other with children. Without children, you can avoid each other. It's also a bit more, and I think the emotional side always comes through very, very strongly. It's also about how much face I lose. I've now told my board of directors that the other person is a total idiot and is to blame. And now I have to find a common denominator somewhere that says, yes, maybe we didn't do everything right. And if you can point this out in a reasonable way and objectify it, there may also be opportunities to say, do you have a chance of coming out with a reasonable, favourable deal if you don't do this?
[26:27]Then it might look like this with the risks and costs. Those are the other two for me. Without children, it's mainly about saving face. With children, of course, it's about how I live together in the future. Then there's the contract, because I need the software, I have to finalise the product, otherwise I can deliver. Perhaps I should touch on another point that is important in practice, namely the depth of this mediation clause. So can the parties already read out from the clause who the mediator will be?
[27:03]Or what the next steps are specifically? Or is it simply a case of first having to go to mediation before going to court and then you're relatively lost? So what is worthwhile, how deep, how complex should the clause be so that it is as effective as possible? That's a very difficult question, because it also depends on the individual, how big is the contract, how far do you take it? Of course, there are basically two mediation clauses in procedures. One is optional and one is mandatory. This means that I write into the contract that we have to mediate before we enter into a legal dispute. That's one method. I don't give them the opportunity. Then I often end up in the situation I described earlier. If I leave the option open, then both parties still have to be rational enough to say, okay, let's try this together. There are then clauses that I can go to the Swiss Chamber of Commercial Mediation or the Swiss Arbitration Centre, for example, and say, suggest mediators that we can then select later. I can also write that into the clause if I want to.
[28:12]And then I just approach these associations and suggest five candidates. And then both parties have to agree to a mediator, of course. It can't be that there are two or not. So that's the basic requirement, of course. So you can ask such mediation organisations to get the process going. I think that helps enormously for the conflicting parties who don't want to deal with each other. Jörg, what experience do you have of such mediations? Do you get involved or have you ever been there where you realised, ah yes, okay, they've chosen me now because they've drawn a clause like this? I've actually experienced both, with and without organisations. We also have, let's say, associations in Germany, various organisations that support such procedures, especially in the case of IT conflicts.
[28:58]And that's where I'm listed as an arbitrator or mediator. And when a procedure comes up, so there's an office of the organisation and, as Thomas describes it, they look to see who might be suitable, who might have time and then they make an enquiry, suggest it to the parties, you first have to see if there's a conflict, yes or no, then it's suggested to the parties and then they can choose. And of course this has the advantage that if you take these, let me say, prefabricated clauses from an organisation, then the framework is actually already set and then you don't have to think too much about how narrow or wide the clause should be, how hard or soft. Then I simply fit into a certain grid. Of course, that has its charm and simplicity. But of course there are also situations where the parties may have a very specific situation during the contract negotiations where they say, no, we want to organise it ourselves. Then you can, yes, we talked about it last time, Sascha, you still remember the "Brocken clause", more or less organise it.
[30:01]In practice, if someone listens and says, okay, that doesn't sound bad, maybe he'll do it. How much will it cost in terms of a fee or price if I commission a mediation institution or association to provide me with the clauses and then, when the conflict arises and one party raises their hands and says, hey, we have exactly the same situation now, please run the programme, they can't do that.
[30:29]Free of charge. What is the financial motivation? That's another sticking point. Firstly, anyone can of course take the mediation clauses and copy them in and do it themselves and then consider what level of detail they want for themselves. It doesn't cost anything for the time being, but it's a service that can be included. They are public, you can look at them on the Internet. They are public, they are available on our website. As you have already said, there is also a lot of literature on this. You just have to look at it and see if the legal advice is reasonably watertight. Does it make sense and so on? That's one side of it. Today, the Swiss Arbitration Centre in Zurich offers this at a very high price. You're talking about almost 5,000 francs. That's already relatively high to start with. What they offer, of course, is a database of mediators with their specific expertise etc., where you can of course become active yourself. That would be free of charge.
[31:23]So those are the two examples. They are currently considering a model that will make them more favourable, because that is quite a high amount, especially when it comes to SMEs. For larger companies this may not play such a role, but for SMEs it's already a value in dispute, which is then again burdened with 5,000 francs. That's not so favourable. We also attach some importance to the fact that this should be an efficient story. So in that respect, I think the full service is still a bit expensive today. But they are thinking about how they can do it more cheaply. But the demand in the database is actually quite good. You can search for specific specialisms, experience etc. very easily. Search. If you use this a bit, then both parties can certainly choose one or the other candidate to post.
[32:11]I assume that's also the case in Germany, Jörg, isn't it? There are differences. Basically, we're talking about different types of fees, if you like. One is the organisation's administrative fee, so to speak, for initiating the procedure and then initiating these mechanisms, selecting the mediator, etc. There are certainly organisations, especially in the field of mediation, that charge a fee for this. There are certainly organisations, especially in the area of mediation and arbitration, where the flat rates are significantly lower, 1000 euros, 2000 euros. But that's not the end of the story; the actual work is done by the mediators or the organisations. They have to bake it first. They have to bake it first and make it bigger.
[32:48]Enlarge the cake. That's the way it is. And then for their fee, so to speak, which is usually based on time-based fees. And of course that's on top of that. And if mediation, of course, always uses the argument that it is faster and cheaper than court proceedings, then the organisations must of course also ensure that the initial fees are not too high so that a hurdle is not created again. Above all, I mean this initiation, which simply means administration for larger conflicts. So you simply have to make phone calls, you have to bring together the parties who don't want to, you have to cancel the appointments, you have to make sure that they come together, send mediator profiles that are up to date, perhaps even subject to quality management and then insist on a response. Choose one too. So there's a bit of work to be done and that's exactly what the conflict parties need.
[33:42]And that them simple, on it have the none Desire. And there fail the Conflicts on the Path to the Mediation. The Swiss Arbitration Centre makes even to the Example also then the Prepayment, that stop the Mediation fees then in the Apron already paid become or after also collected become. In certain Cases is the stop also always still tricky, that there after none Money flows. Okay, her both. Exactly, but Sascha, you have it Yes straight said, so these Simplification. So otherwise, when I the not have, So with one Ad-hoc mediation, yes, then arises Yes the first Dispute so to speak, small Partial dispute Yes already about these whole Questions. So want we in one Mediation go? Which Procedure? Which one Mediator etc.? And the is stop anticipated. Yes, so there find me, that the Timing there is, where both Pages want.
[34:26]The gives it mostly not. And when, is it so extreme short Time slot. But so one Clause creates it, that both in principle first want, but nevertheless gives it there still Things to do. So someone must what make and there can simple Delay take place. Without one such Mediator role like these Mediation institutions fails it then on the Level. So there believe me, there lie the Paths to the Mediation or the Pitfalls lie there narrow on the Path to the Mediation, that then said becomes, when the other not wants, then make I now also nothing. So should he but one Suggested date make. No, I believe, in principle is it like this, we need simple more Educational work, that something like that like one Migration clause very, very Helpful be can. And when one with the Awareness already on Contracts approach, is at least also there the Mindset, like go I with Conflicts um, already times given. So one goes not more whole so naive ans Topic ran. And the think I with the today Situation, as it before all in B2B business, IT business.
[35:26]construction industry, like the Jörg the said has, is the for me simple fundamental important. And it would be simple great, when many the then also realise would in Contracts and then would have we probably also less burdened Courts and could
[35:40]
Conclusion and outlook for future topics
[35:38]the also faster about the Stages roll. Good, prefer Thomas, prefer Jörg, many Thanks to for the Insights in the Practice, in the still young Practice from Mediation clauses and their Handling. I thank you me with you for the Conversation and.
[35:57]Say times, Jörg, to you on each Case. Until to the next Times. We become us here determined coming soon again to the Topic BATNA meet. The Keyword is today also please to the Topic Negotiation theory, but also preventive Conflict management become we here again go. Because the is already with the Mediation clause me clear become, these Structuring, the the brings in, these Structures or also Guard rails, on those one itself then but along move leaves as Party to the conflict, the are the key to the Mediation, to the Start the Mediation. Jörg? Exactly, yes, so we have Yes now one Insight get times also in the Practice in the Switzerland, what for me already also very, very revealing was, ultimately with the Realisation, it is not much different as with us. Yes, from therefore you, Thomas, also from mine Page here many Thanks to for the interesting Conversation. Thank you, that her me today with you had have and then wish I you furthermore much Success. Thank you yourselves, as well.
[36:53]So, the was my Conversation with Thomas Tailor from the Switzerland and Jörg Schneider-Brotmann here in the Podcast with the small Series Preventive and Anticipating Conflict management. It is clear become, that also in the Switzerland the Mediation clauses exist, advertised become, but still not on all sides in the Practice applied become and that it itself but worthwhile, to be carried out. So that thank you I me with you, that you here again with thereby was at the Podcast Good through the Time. Leave a comment with pleasure a Feedback, when the Episode you please has and one Comment. Habit you probably, until to the next Times. Comes good through the Time. I am Sascha Weigel, yours Host withm Institute for Conflict and Negotiation management in Leipzig and Partner for professional Mediation and Coaching training programmes.