The current crises are an opportunity for creativity and innovation. Why?

Caught in this ongoing state of uncertainty, we are called to rethink many things – how we work, how we socialise, how we travel and how we live as family units. We are also called to reimagine how we deal with conflict – from the kitchen table to the boardroom table.

The new Singapore Convention on Mediation has put international mediation centre stage by creating a framework for the direct enforceability of mediation agreements. Furthermore, mediation has become a seemingly pandemic-proof dispute resolution mechanism. It is procedurally agile and can deliver timely and commercially viable solutions that are necessary to weather the global economic downturn.

How can mediators be innovative?

1. mediators can use technology in 1000 different ways. The 2020 SIDRA survey report shows that half of clients using mediation rate platforms for conducting virtual/online hearings as „extremely useful“ or „useful“. Similar results were reported in relation to e-discovery/due diligence tools, negotiation support tools and mediator and/or advisor appointment analyses. Given the global pandemic, the percentage is now likely to be much higher, presenting an excellent opportunity for mediators.

2. mediators can be creative in working with other dispute resolution professionals (e.g. arbitrators) to design procedures using a combination of different methods to achieve the best conditions for the enforceability of dispute resolution outcomes and for the preservation of business relationships.

3. mediators can develop services as deal brokers to help clients renegotiate agreements that are no longer beneficial to both parties in light of the health crisis.

4. the risk for mediators will be to wait for the „new normality“ instead of helping to shape it.

My recommendations

Even before the coronavirus crisis, it was clear that we are living in a very conflict-ridden time. Opposites and differences of opinion are clashing ever more fiercely and dividing people in many areas of life, making dialogue difficult or even impossible. Fortunately, mediation is now recognised as an instrument for conflict resolution. It therefore opens up the prospect of describing a new vision of social interaction.

However, professional mediation is predominantly conceptualised as a means of helping disputants to satisfy all interests and needs affected by the conflict and to reduce the suffering of the parties in disputes. Of course, this can be explained by the history of its origins, as the concept is based on an individualistic world view. The conflict is thus redefined as a joint problem, with mediation forcing a joint, integrative solution to the problem. Recommendations for mediators are based on finding ways in which parties can satisfy their individual needs – the so-called win-win solution. Thus, the view still prevails that mediators should take responsibility for steering the process to help the conflict parties to engage in a collaborative process as they need help in solving their problems. This way of thinking tends to be reinforced by the constant legalisation resulting from the requirements of the Mediation Act and the associated standardisation of the practice and training landscape.

The relational view is different: It sees people as autonomous beings who are at the same time fundamentally interconnected. Human growth and learning take place when people try to harmonise their own autonomy with maintaining positive relationships with others. Conflicts in particular enable people to optimise this balance and gain new insights as a result. The CPs learn and experience how to deal with situations in which someone else's point of view differs from their own. As a result, the parties gain self-confidence and the ability to make decisions so that they can achieve what they want based on the changed interaction. In the transformative orientation, conflict is the driving force in a process through which people can gain self-confidence and refine their identity through involvement in enduring social relationships, institutions and ideologies.

The press reports on the negative economic impact of the COVID-19 pandemic on the German economy agree that this unprecedented recession in gross domestic product has led and will lead to a sharp increase in business crises.

This is the starting point for a sensible "Mediation in the corporate crisis".  A corporate crisis contains a "bouquet" of potential conflicts that are amenable to mediation. Ailing companies should use the delay to attempt a reorganisation with the help of a mediator.

To support pre-insolvency reorganisation, the new EU directive also provides for the involvement of a mediator and special rights for the company concerned to involve only certain creditors in the reorganisation measures. This can also include a Extrajudicial restructuring moratorium be agreed. In this phase, it is particularly important to use mediation with a specific communication concept to bring the parties to the conflict to the negotiating table. This is where mediation has proven its worth.

The risks of a Mediation in a corporate crisis For the mediators, this means keeping a constant eye on the framework conditions under company law, insolvency law and criminal law during the mediation process. This is because the agreement of a restructuring moratorium alone does not guarantee that mutual claims by the parties involved will not lead to undesirable side effects if the mediation fails at a later date.

Under the current pressure, everything that is not immediately considered vital is being relegated to second, third and fourth place. In companies as well as in politics and the healthcare sector.
I see two dangers:

• Organisations are cutting many of the communicative, development-oriented formats such as team development, training, HR budgets, etc. in order to save money.
• Conflicts that point to complex dysfunctionalities or deficiencies and thus hinder significant further developments are being overlooked even more than before.

 "Where danger grows, the saving grows too." (Hölderlin)
When economic survival is in question, creativity and innovation are required – in a highly stressful and pressurised situation. This makes it all the more essential for companies and organisations to rely on the potential of their employees. This requires actively and consciously eliminating the burden of conflicts, which usually intensify during the crisis(es). This is the only way to free up thinking and creativity and to develop the necessary self-organisation and self-management skills.
Mediation can remove these obstacles more quickly and in a more targeted manner than low-threshold programmes such as team development or training. There will be resources available for mediation.

The complexity of crises is high: what helps on one side raises new problems elsewhere. There is no single logic that solves everything. Trying to manage complexity simply creates high risks for the system as a whole, – as can be seen from the social conflicts we are currently experiencing. The ways in which conflicts are being resolved are coming to a head and, at the same time, the "scenes" are increasingly separating from one another.

The process of mediation, recognising the different interests, bringing them into contact and weighing them up and reaching a balance of interests, becomes all the more important.

The shift of communication to the virtual world has initially pulled the rug out from under the feet of some mediators. However, virtual meetings also have a relieving function for the conflict parties. Conflicts can be addressed and dealt with without having to sit in the same room as the other party. This creates protective spaces that are not equally available in face-to-face mediation.

Corona and its effects have made it clear that digitalisation does not stop at mediation. What do I make of this?

The number of training courses and training modules on online mediation has risen sharply during the lockdown. I have personally been able to take advantage of various opportunities. At international level, for example, through CPR, a four-hour event with over 60 participants, or a very good two-day module at Viadrina.

Since July of this year, online platforms such as E-Bay, Amazon, Google and many more have had a guideline for resolving disputes with merchants who use their platform, the so-called P2B guideline. The platforms in particular have a strong interest in digital models and have concluded fixed agreements with mediation providers who offer online mediation.

After we have published on our portal www.mediator-finden.de have expanded the possibilities of offering online mediation as a procedural model, the number of mediators offering this service has risen from just over ten to around 150 mediators within a few weeks

What do I deduce? The number of mediation cases will increase, partly due to framework conditions such as the P2B Directive and the possibility of lowering the entry threshold for mediation proceedings by reducing the amount of travelling required. Now that the lockdown is over, the temporary restriction on face-to-face mediation has been reduced. Mediation can therefore benefit overall.