INKOVEMA Podcast „Well through time“
#203 GddZ – Specific mediation clauses
Mediation clauses – Part 2
In conversation with Dr Jörg Schneider-Brodtmann
Dr Jörg Schneider-Brodtmann: Studied 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.
Well through time.
The podcast about mediation, conflict coaching and organisational consulting.
Contents
Chapter
0:19 – Welcome to the podcast
0:56 – Mediation clauses in the contract
5:09 – Anticipation of conflicts
6:00 – Contract design and prevention
8:02 – Drafting the content of mediation clauses
11:21 – Waiver of action and duty to mediate
14:01 – Rules of procedure for mediation
15:34 – Risks of mediation
19:19 – Confidentiality in mediation
24:21 – Difference between types of mediation
27:56 – Mediation as contract continuation
33:11 – Outlook on future topics
37:26 – Paradoxical effect of rules
Summary of content
In this episode, we talk to Jörg Schneider-Brodtmann about mediation clauses and their importance for the prevention of conflicts in the corporate context. In companies where emotions are often of an entrepreneurial nature, it is essential to introduce preventative measures in good time. We discuss how mediation clauses can be formulated to promote constructive conflict resolution before escalation occurs. We will shed light on the basics and regulations that should be included in such clauses in order to have a clear procedure in the event of an emergency.
Mediation clauses are not merely legal formulations, but should above all be comprehensible for all contracting parties. A central aspect of our discussion is the anticipatory nature of these clauses: If parties consciously discuss how to proceed in the event of a conflict, they could potentially defuse the conflict driver from the outset. We discuss the practical application of such clauses and also the challenges of contract implementation, particularly when contract extensions or amendments are pending.
Another topic of our discussion is the Elements that need to be considered to make the mediation clause effective. The regulations around Confidentiality are also very important in mediation and we explain why confidentiality is not only important for the mediator, but also between the parties. The distinction between Ad hoc mediation and preventive mediation clauses and how they can play a role in the course of a project.
We also discuss practical experience, which shows that customised clauses that are specifically tailored to the respective contractual relationship are significantly more effective. The more detailed and clearly formulated a mediation clause is, the greater the likelihood that it will be actively invoked in the event of a conflict.
Finally, we reflect on the challenges associated with complying with and enforcing mediation clauses, as well as the dilemma of how much regulation is necessary without unnecessarily restricting the flexibility of the negotiating partners in the event of a conflict. The dialogue with Jörg Schneider-Brodtmann offers valuable insights into the practical application of mediation mechanisms and their strategic importance in corporate contexts.
Transcription
[0:00]When the Conflicts so high escalated are, what it also in the Corporate environment gives, the calls one not so very the personal Emotions like with personal conflicts, but then even the entrepreneurial Emotions, when one so wants, then is it by no means like this, that the then there come, only because Mediation there
[0:19]
Welcome to the podcast
[0:15]is and because a Mediator then sits, then suddenly whole friendly with each other speak. Cordially welcome to the Podcast and through the Time, the Podcast round at Mediation, Conflict coaching and Organisational consulting. A Podcast from Inko Feber. I am Sascha Weigel and today here not alone in the Podcast studio, but since long times again with mine Colleagues Jörg Schneider-Protmann. Hello Jörg. Hello Sascha. Beautiful, again with you in the Studio to be. Yes, find I also. And when you there are, then goes it always at Prevention and Anticipation and what one do can, at Conflicts good to edit in one Time, where still none there are. But already clear is, it becomes which give.
[0:56]
Mediation clauses in the contract
[0:56]Exactly, the Topic have we us Yes now already one While a little on the Flags written and also already from various Pages here illuminated.
[1:04]Last Year had we one small Series about the Conflict management systems and then have we this Year already started, us actually with the Topic also Dispute resolution clauses, Mediation clauses to deal with. And when I it right in the Head have, want we there today also above speak. Exactly, we become today also about Mediation clauses speak and so that about Contract work. So what can we and should we in Contracts formulate, so that it then also good in the Practice applied becomes? The sounds first times always dry, but we are located us here Yes already in one Area, where the Contract work therefore goes, even not then Judicial from one Judge check to leave, so about court-proof Standards, but if possible one Design language to find, the in addition invites, extra- or Pre-judicial to act. And about it must one itself simple Clarity procure. And there want we in the Depth Go from Mediation clauses. Perhaps worthwhile it itself but, the still a little in the Context set, that we still times watch, where are located we us there. You had times this Term the Champagne clauses called, where the Contents really to the Lawyers pushed become, because also only the so that somehow in Contact us come become, also when it then bad run would. The Clauses, the we now view would, the must natural legal clean be, but them are actually, when I the so pointed say may, not for the Lawyers written.
[2:30]Or like would you the assess? Well, it is a Part from Contracts and Contracts are Yes as such, I believe, the have we also last Paint already a little addressed, a preventive Instrument. It is on the one hand a shaping Instrument, one Co-operation shall on one certain Kind and Wise expire and in favour become even then Specifications made.
[2:50]But it has even also this Preventive character, namely in the Regarding on it, when then at some point times, or Anticipatory character actually, when at some point times the Co-operation perhaps but not more whole so running, like itself the the Parties on Beginning thought have, when what stutters, when it to any Defects comes or Damage, then become stop Rules provided, Rules of the game provided, like the Parties then so that avoid. So, the is actually per se already times anticipatory. Conflicts become thereby not avoided, not prevented, but it gives stop already Rules, what happens, when it then but stop times to the Gossip comes. And in the Context are even also then the Dispute resolution clauses to see. In the Contract on End finds one by default one Jurisdiction clause, where even inside, when it to the Legal dispute comes, so the classic Dispute resolution instrument in the Legal area, then goes it even to one certain Court.
[3:43]And the is actually the Starting point, where one itself then even with the Contract design superior can, is the because the right Path or the only Path, that one even to Court of law goes, when it one Dispute gives or gives it even also other Ways? So and there goes it loose and from therefore, at there the Question to answer, no, is not only for the Lawyers, because it concerns natural the Parties, because when it to the Dispute comes, makes it natural one blatant Difference, whether them even direct to the Court of law Go must quasi or even still other Mechanisms Before that Switch can or alternatively in addition. Therefore should them so clear expressed become, that also the Responsible, the now none Lawyers are.
[4:23]The Sense and the Contents capture can, without equal think to must, OK, the is so more Legalese, there am I not Practised inside, but the shall actually rather very appealing be. I would still one Point, before we Content become, again address, the you named had. And indeed, when one such Clauses installs and the in the Contracts discusses and then formulated, whether thereby not already itself something changes. So like are so yours Experience, like one such Contractual partnerships then executes and like one with Problems handles, when one white, it gives such Clauses or is it actually like this, that them none Difference make until to the Just a moment, where the Conflict escalated is and then asks one itself, what makes one now,
[5:09]
Anticipation of conflicts
[5:06]now looks one in the Clauses and then white man, what one there to do has. The Thesis so to speak is a bit, when one before above speaks, what one does, when it difficult becomes, that the paradoxically in addition leads, that it longer not difficult becomes. Yes, beautiful.
[5:24]So also so to speak again anticipate. Yes, exactly.
[5:28]Since play natural various Factors one Role. The one is the Topic Runtime one Contract. Many Contracts have Yes with large projects, Building contracts, Infrastructure projects, IT projects have Yes often one very long Running time. And frequently is it like this, that the Persons, the on the Negotiation of the Contract involved are, after not on the Execution involved are. Man would itself the often different wish. We try the actually also with certain Projects also so get it right, that the People thereby are, but it is simple not guaranteed. So, the is perhaps the one Point. And the other would say.
[6:00]
Contract design and prevention
[6:01]Yes, so in any case, when we about, have we, believe me, also already a little above spoken, when we about so contractual Escalation clauses speak, so in the Frame from so one Governance model, then is Yes so one Mediation clause frequently inserted in one Escalation clause, where even said becomes, when it a Problem gives, then becomes first times on Project. Levels with each other talked about. When the itself not communicate, then goes it higher. One Level, Steering committee level and then perhaps also one Management level. The are Regulations, where the Parties frequently a large Interest in show and also involved are. When it then rather in the Legalisation of the Disputes goes, and there belongs to Yes then so to speak from the View the Parties the Mediation then partly also already in addition, is in any case mine Perception, then is the Commitment not more so high. Then say the stop, what beats her because before, her Lawyers? When one then even Lawyers has, the then perhaps mediation-savvy are, then comes it to one Mediation clause or stop one Arbitration clause. But then are we already a little in the Champagne area.
[6:59]Champagne yes, because the Parties celebrate already the Conclusion of contract, Open already the Champagne bottle and the Lawyers care itself still before us at the Contract. So I would say, the Mediation clause is there so a little between the clean Jurisdiction clause and the Escalation clause to see, yes. Okay, then remains but at least so to speak simple the Fact, that the Contracting parties, when it good running, to Start the Scenario already discuss, it becomes Conflicts give. We become us burn or ours Employees, it becomes certain Colleagues give, the one even not namely name can, the become in Difficulties with each other come, itself each other the Guilt to push. We know the now already, we consider it, we discuss it. The is Yes nevertheless one important Function. What can we because then those offer, what them regulate should and regulate can too? So when one now the Mediation clause as Agreement, we Go not immediately to Court, Bracket on, delatory Waiver of action, Bracket to,
[8:02]
Drafting the content of mediation clauses
[7:57]and we make one Mediation, we become so the Conflict in the Paths one Mediation edit. What can one and should one still on Beginning regulate? What are so Contents, the we there take up can?
[8:08]From the easiest Clause, the simple only says, when it Gossip gives, make we one Mediation. The would be so to speak the simplest Mould, but possibly not very effective, because even very indeterminate. Then has itself actually so a little has crystallised, what actually so the Core elements are. The two central Elements, you have Yes actually almost straight already a little mentioned, you have already this Foreign word used. Yes, more dilatory Waiver of action. Now must one probably first a little explain, what the actually hot shall. Actually means it only temporary. The is so to speak one central Effect one Mediation clause, that it even means, that from Introduction of the Mediation process first none Legal proceedings introduced become shall. When it the other Party then but does, yes, then can itself the Opponent even on it appointed and say, the may you now not and then would the Court of law so one Lawsuit as currently inadmissible reject, therefore dilatory, only temporary.
[9:05]As long as stop the Mediation procedure running. And when the then ends, then ends also in turn these Defence, yes. Yes, and would that, now am I so to speak a little but Yes again legal more precise, applies the Waiver of action in the Rule, when the Mediation procedure introduced is, that then not sued become allowed? Or applies the already then, when a Conflict established is, but even still none Mediation procedure? I make times a pair Example cases. I wars with as Contractual partner, that I mine Colleagues, mine Contractual partner not reach. The reacts not on it. Perhaps on the Request for payment not or also on the Offer of dialogue or on the Request. We must talk. It gives Difficulties. My Employees have me said, that yours Employees simple unscrew and like this. The is now problematic and now notice me, I am not more with the in the good Contact. So the lifts not from or reacts not or feels itself not responsible. And now notice I Conflict. The is now difficult. Now can I not simple complain, but I have stop in the Contract inside stand, first mediative.
[10:13]The means, in the Trap is already the Mediation procedure started, that the delatory Waiver of action intervenes or would be I now still in this Decision phase, make I Mediation and begin the Procedure and then can I not more sue or on the other hand, I can now still sue the same. When the Conflict then there is and the Decision stands to, whether I a Legal proceedings initiate or not and I have one Mediation clause, yes, then may I it not do. And when I it nevertheless do, then can the Opposite side then even these Defence raise. And the means also, one should now actually exactly define, when a Conflict in our Contractual relationship is available. Otherwise could Yes each somehow say, the has already long started. In the Reason always, when one Party even so to speak otherwise one Lawsuit raise would or when them it would like, at the latest then is the Conflict there. The are now the two various Effects. The is now these Waiver effect, the means simple only, the Legal proceedings becomes even then not carried out. The other central Element the Mediation clause is Yes the Duty to negotiate
[11:21]
Waiver of action and duty to mediate
[11:18]and even the Duty to negotiate under Consultation one Third parties. And the lies even in the Hand the Parties, when them say, OK, now grab we on the Clause to. You can even first negotiate and then provides one Party fixed.
[11:30]We come here not more and then calls he even the Mediation clause to. The means, we can also Content in the Clauses write in, when one the Contracting parties itself disabled sees or be Interest in not sufficient preserved sees, then is he authorised, one third Person to call and to commission, the other Page to Contact us and so that already the Mediation to begin. Means also, because the Yes 50-50 paid becomes, then, I can as Contractual partner the other with oblige to pay. So the would be Yes one strong Agreement, when both say, yes, in so one Trap can you someone commission, the I to the Half with pay. The is a strong Confidence bonus. The Commissioning must then through both Parties together take place. Only them have itself Yes earlier already committed, the then to do. So Call can then so to speak the Mediator one, each after, like the Clause even formulated is. But then becomes it natural a common Procedure and then must also both Parties then together the Mediator commission and then Yes also the Mediator contract finalise. I notice, like Constellations itself always again to wake up. When one then so wide is, that one annoyed on each other is, then argues one itself, when it not regulated is, also about it. So completely unnecessary, that you now already the Mediator call. You know exactly, the costs 350 the Hour and then do you here so a Primborium. I am not ready, that we the co-payment.
[12:59]Then argues one itself still at the Existence of the conflict. Potential, yes, exactly. Therefore is it Yes exactly the Topic, what regulate I because everything on best in the clause? Even also these Invocation. How come I actually then to the Procedure? How come I after then also to the Selection of the Mediators? Who is because the Mediator? When it in addition even none Regulation gives in the Contract, then must itself the Parties first tedious communicate. On clearest would be it natural already, when them perhaps even one concrete Person name, what I however in the Mould, believe me, still not seen have. The is also risky.
[13:33]Exactly, perhaps gives it the then not more or has none Desire or none Time. Must her still one Regulation meet about one Replacement person? It gives Yes also Organisations, the corresponding Orders have, Mediation regulations. I can also one Organisation name. What hold you for practicable? So you have Yes one Quantity Experience also from the legal View with the Accompaniment from such major projects. Would you say, tendential more Rules as to little?
[14:01]
Rules of procedure for mediation
[13:57]And when yes, what has itself proven? So which How to proceed? Not to complex make. I would me actually orientate on Arbitration clauses. Yes, gives it also in the ZPO even also Regulations in addition, what so to speak the Requirements then on the Determination are. And there can one itself whole good on it orientate. Man can coarse Rules of procedure set. Definitely agreed becomes the Procedure then first, when the Procedure introduced becomes and then the Mediator itself with the Parties votes. But one can even so to speak these Entry rules, like come we pure ins Procedure, what we straight already spoken had, what must before happens be? Yes, must it before even one contract-internal Escalation given have. Man can, I have it said, the Person of the Mediators name. Man can also only say, it shall a Mediator with following Qualification elected become and the shall perhaps his Seat have in Leipzig with Incofema or it shall even a Mediator from Incofema be. Exactly, to the Mediation Rules from Inko Fema, the it then gives until there. Yes, exactly. Yes, so there are the Parties in the Reason free.
[14:59]Man can say, shall it only a Mediator be? Target it one Co-mediation be? How should the Negotiations take place? Online, Presence?
[15:08]Yes, so there gives it one whole Ostrich from possible Regulations. And yes, each more accurate one the defined, to one Time, where one even still not with each other in Dispute is, namely in the Contract initiation phase, the rather comes one natural to Results, as when the Whole then in the acute Dispute then even ad hoc regulated become must. Since can it natural then already also be, that, like you it describe, one Party then Little game plays and thereby the Process more difficult.
[15:34]
Risks of mediation
[15:32]The hold I also for a real Dilemma. On the one Page have I Experience, where I say would, prefer before concrete regulate, that one in one Automatism comes, the not more works.
[15:46]I says times like this, the free Decision in this Moment of the Conflict retrieves, because one in this Moment simple none Desire has, In favour of the other Persons or itself something please to leave and one prefer one Automatism has to the Motto, the happens now. The have we so agreed, the have I then so with signed and on it hold I me now. The would in favour speak, simple really much to regulate, which Basic occupations the have, which Style the follow should. Since is Mediation simple not always Mediation. When I a large IT project take, then would I now strong advocate, that it a evaluative working Mediator is, the the Field knows and not now any Mediator, the still never in so one Project worked has, that one the simple already as Prerequisite with regulates. Absolutely, yes. And the collided in turn, I says times, so one Mediator soul, the on best with the Parties to the conflict direct agreed, for which stand I to the available, what wants I and for which stand I there and itself not in these Control dynamics to lose, where one then from the Wood on Sticks comes. Hey, you, the this Podcast listens, forget not, him to Rate and one Feedback to give. Many Thanks to and now goes’s continue.
[17:08]The can Yes also constricting have an effect. Each more I in the Apron regulate, the narrower is then after back my room for manoeuvre. Naturally have the Parties the Freedom, thereof to deviate, but in favour must them itself stop some. And when them in the Timing already in the Clinch are, then is it stop more difficult, itself to some. What perhaps also on the other hand speaks, the Whole to narrow to mark, is, that stop in the Time, in the the Parties, we have it said, itself still tolerate, one Contract close, them tolerate itself still and them design then so one Clause, there know them Yes still not, what from Conflict on them to come becomes. Man can it natural each to Kind of the Contract so a little Scenarios itself think up, but on Conclusion comes it then stop frequently but different. And then could it natural happen, that the marvellous Chiselled out baroque Clause, the the Parties designed have.
[17:58]Then after to the Raw concrete stop not fits, the then there in the Room stands. The are Linguistic images. I notice, you are to Home. You have Linguistic images today brought along, the come only from the Practice. The is yes, when one about Contract design speaks, thinks one maybe, the Listener, the would be rather what Dry, but is it not always. And in fact, it gives really baroque Contracts. I use the Term also times whole with pleasure or also chatty. When I somehow Contracts get with for a long time Clauses, American Contracts, we call the then back out Boilerplate, where one eh already white, Actually stands always the Same inside, nevertheless must one it read through, because it could Yes someone something inside hidden have. Since can you actually only on AI hope. Yes, exactly. Mostly must we still with our own I work. The is so always the Field of tension. How detailed regulate I something? So I can natural beautiful Pattern, Mediation clauses build, the gives it also. And nevertheless must one itself then view, simple in the concrete Case, what is perhaps sensible and where can I still enough Freedom leave, that then after the Parties with the Mediator together the Procedure determine can. Is Yes also one Special feature the Mediation, actually these Procedural freedom. So in the Arbitration proceedings is it then mostly one Organisation, then the DISS or ICC, there gives it a fixed Procedure. The have we Yes in the Mediation rather rare.
[19:15]On the Point come I also again. So one baroque Clause is Yes also
[19:19]
Confidentiality in mediation
[19:18]one huge Attack surface. When one not wants in the Just a moment, has one all the more more Possibilities, on the other hand to work and to say, the have we so not agreed, because always also one Diversity of meaning inside is. And when one many Things regulates, then has one actually many Exceptions and Interpretation patterns still supplied, as when one it simple regulates. The gives straight also much Attack surface, it then straight not to do and itself nevertheless in the Senses the Clause to behaviour and to say, yes, the have we but straight not regulated. Since must one simple say, OK, when one stop not wants, wants one not. So is it exactly. But so a pair Basics should stop already inside be. Embed, find me.
[19:56]The Clause shall