INKOVEMA Podcast „Well through time“

#9 – Clarification assistance and voluntariness in mediation. In conversation with Ute Liepold

Well through time. The podcast about mediation, conflict coaching and organisational consulting.

Ute Liepold, independent Clarification assistant and mediatorn, provides insights into your work, how you deal with difficult internal conflict resolution processes where the Motivation of those involved is differently pronounced. Together, we will examine the extent to which the Voluntary requirement of mediation and discuss different aspects of what is meant by Voluntariness within the meaning of the Mediation Act is to be understood.

Underlying principle: The Ulysses Pact

Contents:

1. impact of the coronavirus pandemic on the situation as a self-employed person

2. voluntariness in mediation within the meaning of the Mediation Act – perceived requirement in the process of clarification assistance?

  • Problem case that conflict parties do not want to participate in the clarification process/mediation at the beginning.
  • Dispute Does a superior's order to participate rule out voluntariness within the meaning of the Mediation Act? While this legal question is answered in the affirmative by parts of the legal literature, mediation assistants answer in the negative as long as the participants are not actively urged to take part. It is sufficient for the conflict party to be present in silence to start a mediation. We also discuss the possibility of understanding involuntary participation at the start of a mediation process as an expression of the overriding personal responsibility as an employee, so that the voluntary but binding employment contract still affirms the voluntary nature of the mediation process even if there is reluctance and fear of negative consequences for non-participation. After all, no-one wants to be accused of having prevented clarification, just as there is generally hardly anyone who enjoys taking part in mediation. After all, the pressure of conflict still exists. Ute Liepold rightly emphasises that it is also unfavourable for practical clarification and beyond the need for legal clarification if those involved are forced by superiors to participate.
    • For example Greger, R., Unter falscher Flagge. On the misuse of the concept of mediation and its consequences, ZKM 2015, 172 ff;
    • Prior, Chr., Clarification assistance meets mediation law…, ZKM 2016, 105.
  • Recommendations for practice in dealing with questions about the voluntary nature of participation (in an internal context).

3. mediation clauses for employment contracts.

Mediation clauses for employment contracts could minimise the practical problem of organisations with the willingness to participate and legal protection.

Mediation clauses in labour law contracts
Mediation clauses in private sector contracts (article)

4th problem case for the mediator:

The commissioning manager „ turns out “ to be part of the conflict and must contribute to the conflict resolution, which puts the mediator under pressure in his or her duty of impartiality and neutrality.

5 Other important criteria for clarification assistance

Further links: