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Strategic mediation

Part 1: A plea for an overdue change of perspective.

Mediation is faced with two challenges. Its own past is characterised by the fact that its range of solutions does not seem attractive and hardly anyone uses mediation. And the digitalising VUCA world also gives no reason to assume that anything will change without our own intervention. Two theses are then formulated. Corresponding explanations are split into two sections.

1. two challenges for mediation

Mediation in Germany is currently facing two enormous challenges.

On the one hand, their services are not being used; on the other hand, the digitalising VUCA world does not indicate any changes to this state of affairs. The first challenge is a fact, the other an assertion. Both will be explained below.

a) Mediation? No, thank you!

Firstly, the fact. Mediation does not work – at least not in Germany. This is clear from the German government's report on the impact of the Mediation Act, which was published in July 2017.^[1]Mediation does not deal with conflicts to any significant extent in society, mediators are not fully utilised with requests for mediation. They earn their money elsewhere - even if they always focus on potential conflicts.

This result of the evaluation of the Mediation Act, which has been in force since 2012, is astonishing in itself, but it gets even worse for mediators: Having started out as an urgently needed alternative to court proceedings, it is not only found that conflict parties hardly ever use mediation, but also that the number of lawsuits filed with the courts has been falling sharply for a good ten years.^[2]It is precisely the parties in conflict, who are appearing less and less in court, who are not appearing with those who have offered themselves as a suitable alternative! So it's not the demand, but the product.

Although the aspect of declining numbers of complaints received went unnoticed for a long time, even among experts, it is now also being mentioned in the daily press.^[3]Despite a patchy data basis, there are Two certainties from.

– Firstly, the decline in the number of lawsuits received: In the civil courts, the volume has fallen by an average of 25%^[4]in the labour courts of Baden-Württemberg^[5]by a whole approx. 30%. Financial and social jurisdiction has also fallen sharply again since 2008. A brief increase in previous years was due to the legally vague "Hartz IV" laws. Clarifying case law put an end to this "run on the courts". The only current exceptions are asylum court proceedings and the constantly busy Federal Constitutional Court. Exact figures for individual courts and federal states are currently being determined and will certainly hold a few surprises in store.

– Moreover, we are certain that mediation is not to blame for the circumstances just described.^[6]Neither the number of actual mediations nor other influences of trained mediators, who often occupy key functions in organisations, give any serious reason to claim that the mediation movement is a cause for the decline in the number of lawsuits filed.[7]

Both of these certainties must leave mediators astonished and disappointed: Their range of services has not been and is not being used (more) intensively, even though the signs of the times were favourable, not only as a result of the Mediation Act, but also in view of a historically astonishing decline in litigation.

The conclusion is probably valid: The mediation movement has grown over the last ten or twenty years and has found a good number of followers who have undergone training and organised themselves into associations, but not clients. The access, the lock or the key has simply not yet been found.

And now to the claim.

b) VUKA goes digital!

The need for "problem-appropriate conflict management" exists and will continue to grow. But what is the pressing problem? Is today's conflict resolution really about ignoring the "emotional level"? Are feelings really the thing that allows conflicts to be dealt with appropriately or are they just a side issue that is diminishing? For an answer, we have to jump from the individual to the societal level.

Since the mid-1990s, when the US Army War Collegein Carlisle Barracks, Pennsylvania, designed their strategy concept in order to mentally grasp the new world (dis)order, only a little more than twenty years have passed, but today these times do indeed seem to be from a past millennium - and indeed they are. The underlying project aimed to put fundamental questions about leadership and strategy on a new footing worldwide. But after the fall of Soviet communism and the Eastern bloc states, there was not much left to do other than realise that the world is vuka.^[8]Militarily, politically, socially and economically…, no thought remained what it may have been until then - an emotional support, perhaps a mental foothold or the basis of some kind of certainty, often ideologically coloured. The world ticked completely differently - and was now completely digital.

For mediation, which wants to be a serious offer for individual, social and societal conflict situations in the world, there will therefore be no lack of opportunities to prove itself, quite the contrary. But it obviously needs to scrutinise its self-image, its strategy and its potential just as unreservedly. I would like to think that it is not just a question of improving persuasion among the parties to the conflict. It seems to me that it is more about scrutinising and readjusting our own certainties.

But what does it actually mean to have to deal with vukaesque circumstances? VUKA is an acronym made up of V-olatility, U-uncertainty, K-complexity and A-mbiguity.

Volatile means that the world is increasingly changing in leaps and bounds for the individual and, as a result of our connectivity, we have to deal with global influences and effects to a greater extent. We read American or Chinese news because it can already be relevant to our next step. Blessed are those who have made provisions for such a world. Conflicts continue. Volatility is increasingly demanding Anticipation processes, Doing things today so that they are at hand when needed tomorrow. It seems to me that mediation must take this into account when dealing with conflicts. And it is suitable for this.

Uncertainty means that nobody has an overview of even everyday issues any more. The culture of doubt has spread from the world of science into the world of everyday life. Modern science emerged with the revolutionary claim to know nothing and to doubt everything, to gather reproducible evidence and to consciously rely on interim results - until proof to the contrary is provided. Today, there is no area that is not subject to this element of scientific culture. This also gives rise to uncertainty. And it seems paradoxical that scientific rigour is emphasised everywhere these days, precisely in the assumption of achieving certainty and reliability. Yet the history of science can show one thing above all: It is necessary to deal confidently with uncertainty. It must be endured and its assumptions constantly tested anew. This is only possible with a constructive error culture, which does not lead to disasters, but to corrections. Mistakes come from what is missing, not from what is wrong. Mediation can offer space for precisely this, but it must be a space for courageous testing and experimentation and make it clear that we are working on provisionality, not finality. Conflict resolution can no longer prepare the big picture or "get to the bottom" of the conflict. Mediation can certainly Offer increased agility.

Complexity no longer allows us to see through the prevailing rules of the social world, we no longer achieve ultimate certainty. This may not distinguish us from earlier times, but what does is the knowledge of it. We know that we have to deal with increasing social, dynamic and emergent complexity.[9]and will deal with the consequences. The world is too complex, so its behaviour is neither predictable nor predictable. It is the reason why mediation makes sense – the equal handling of the conflict in a shared context, so that the multi-layered perspectives and differences of those involved can be heard and integrated into joint conflict management.

Ambiguity describes the contradictory nature of the world. Information – even true – is always ambiguous and contradictory in itself. Mediations offer the opportunity to Tolerate ambiguities and contradictions in communication and to utilise their significance for strategic conflict management. Ambiguity enables and forces a change of perspective. 

2. theses

The question now arises as to how the mediation movement is responding to these challenges. Here I would like to introduce two hypotheses into the discussion.

On the one hand, mediation must focus on its unique selling point among third party-supported conflict management processes: , namely that it offers the opportunity to strategically work out an appropriate solution in the face of an escalated conflict. On the other hand, mediation is probably also about exploring its roots in intellectual history more comprehensively and accepting them to a certain extent. The (over-?)emphasis on psychological solutions in the spirit of humanistic psychology appears increasingly one-sided. As a 20th-century instrument for solving problems stemming from 19th-century conventions, humanistic psychology alone is not in a position to tackle the social problems and conflicts of the 21st century.

Two theses follow from this:

• Thesis 1 -Mediation offers the opportunity, to explicitly work out ways out of the current conflict with the (imagined) future. To this end, it can draw on the experience of systemic organisational consulting and process it for the mediation process.

• These 2 –The solution offered by mediation, to find "salvation" for oneself and the conflict parties in emotional work, neglects the second major idea of mediation development, which literally manifests itself in the concept of "cake enlargement". The concept summarised by the buzzwords "Discovering the future" and "Developments in early capitalism" The aim is to work through this tradition of intellectual history and make it fruitful for mediation. [10]

3. explanations

a) The parties to the conflict must reckon with their future instead of just wishing for one!

Only when mediation focuses on the future as a category of reflection for conflict resolution, rather than merely on the future, does it become a tool for conflict resolution.orientatedIt will set itself apart from other conflict management programmes.

Future-orientation in the sense that the conflict is dealt with for a better future is not enough to generate the added value of mediation. In this sense, every conflict management process is future-orientated. No one has ever gone to war or to court to change the past. It is "always somehow" about the future.

What distinguishes judges and mediators in this respect is the communicative toolkit. Judges may not directly control the emotional level, but an influence through the judgement cannot be ruled out either. Judges have to measure the conflict against a legal standard. And in law, emotions are not given the dominant and explicit place that is taught in mediation. This is sometimes an advantage and sometimes not. But the misunderstanding lurks where an insignificant line of difference is overemphasised.

It is evident that judges and mediators deal with emotions differently, but this is not significant from a conflict management perspective. Both act for a better future, neither wants to change or deny the past. Both aim for a "fairer" present and future. Some prescribe this, others allow it to be organised because they believe that this will make the order more stable. Whether this is the case or not is irrelevant here; something else is important: Even if mediators use different standards and the communication process is different – perhaps more harmonious –: Ultimately, this also results in "mere" equalisation measures that the parties voluntarily implement and agree upon. An example may illustrate this: If an apology situation develops in the mediation process, for example on the basis of non-violent communication (Rosenberg) or the four-ears model (Schulz von Thun), the dispute may calm down and all parties involved may well go home heart-warmed and satisfied. That is a success, a successful mediation. In court, the aim is not to apologise, but to pursue a different approach to reconciliation, precisely because it is not just about the parties involved in the conflict, but also about those affected by the conflict in the surrounding area. Nevertheless, the time reference is identical: an unevenness that arose in the past is levelled out. The specific consequences of KM procedures (court or mediation) remain compensatory measures. It makes structuralnoneDifferencefor the time reference of the conflict management approach, whether judges are sentencing because of a past offence or an apology is made in mediation. In both cases, the approach was future-orientated.[11]

However, what mediation can open up, but a court never can, is that the conflict decision itself reckons with the future, that the decision is placed on feet that have already left an imprint in the (imagined) future. This would be a strategic approach in which the conflict triggers relationship updates - whether personal or organisational. In this way, a conflict would no longer appear as a fault in the system, but would instead characterise a lack of fine-tuning. This would be appropriate to the circumstances and conditions in a vukaesque environment. Mediation would thus fulfil the requirements of a conflict management instrument in a "ONLIFE Society" (Floridi), which does less justice to the solutions offered by the 20th century.

b) The strategic element

But what characterises this strategic element? Strategy explicitly deals with future-orientated, often survival-relevant issues of a social system and encourages people to consider which development is desirable and which future is worth striving for.^[12]As a first step, – it is important not to simply state the current wishes for the future, but rather to develop a "Image from the future" out of it. In the second step, operations appropriate to the system can then be planned: How do we get there from here? What do we need to set in motion to get there (over) tomorrow? What stumbling blocks lurk along the way? What experiences have we already had with each other in this regard (…the past plays a role here!)?

But how do such strategic elements find their way into conflict-induced mediation? Is this even appropriate for mediation? Well, that depends first of all on the specific mandate, which is negotiable. It will not happen on its own or by the conflict parties alone. Mediation is neither understood nor advertised as such. This has to do with the current self-image of mediation (see the second part of this article).

The strategic element must be activated by mediators. If they do not reach further into the future and do not bring it into the present communication, it is left behind - and mediation is at best a pleasant, sometimes emotionally interesting conciliation. However, if the mediator brings the future into the conflict communication with the opposing parties, he or she will realise the potential that is often granted to him or her as a mediator.

In terms of methodology, mediation can draw on the experience of organisational strategy consulting - which is already happening to some extent.^[13]In my opinion, the path through the "U" seems to be particularly worthwhile here, as the Otto Scharmer in his organisational development approach "Theory U"^[14]has formulated. Incidentally, this is an approach that originated in conflict management and was developed by Friedrich Glasl and Dirk Lemson was developed^[15]. Strategic mediation could therefore have a good chance of establishing itself as a serious conflict management method in companies and organisations.

 We wanted to make the cake bigger, not just have a good time while baking!

The second part of this article looks at what happened to the straightforwardly capitalist idea of increasing the size of the cake and why mediation can benefit from reflecting on this strand of intellectual history. Instead of wanting to enlarge the cake, mediation was primarily concerned with harmonious baking.

Footnotes and literature

^[1]Available for download from the Federal Ministry of Justice at https://www.bmjv.de/SharedDocs/Downloads/DE/StudienUntersuchungenFachbuecher/Evaluationsbericht_

Mediation Act.pdf?__blob=publicationFile&v=1

^[2]Höland/Meller-Hannich: Nothing to complain about? The decline in the number of lawsuits filed in the judiciary. Possible causes and consequences, Baden-Baden 2016.

^[3]See FAZ of 3.8.17, available online at http://www.faz.net/aktuell/politik/inland/justiz-richter-ohne-klaeger-15135311.html.

^[4]Rottleuthner, Prozessflut und Prozessebbe, in: Höland/Meller-Hannich, Nichts zu klagen, 2016, p. 103.

^[5]Natter, Die Arbeitsgerichtsbarkeit in Baden-Württemberg, in: Höland/Meller-Hannich, Nichts zu klagen, 2016, p. 46.

^[6]Rottleuthner, Prozessflut und Prozessebbe, in: Höland/Meller-Hannich, Nichts zu klagen, 2016, p. 110.

[7]For possible causes, see infra. Weigel, S. INKOVEMA blog: https://inkovema.de/blog/rueckgang-der-klageeingangszahlen-bei-deutschen-gerichten/

^[8]Guwak/Strolz, Die vierte Kränkung, Berlin 2012, for detailed information on the VUKA concept.

[9]Otto Scharmer, Theorie U - Von der Zukunft her führen, Heidelberg 2011, is still worth reading.

[10]As these socio-historical developments require a more extensive retracing, this will be done in a second article, probably in the next issue of Spektrum der Mediation.

[11]To what extent the future will actually be peaceful cannot be predicted with certainty and depends largely on what the parties have learnt. From a historical perspective, it is at least indisputable that, thanks to state law, people around the world have undergone incredibly comprehensive learning processes - and are dealing with each other more peacefully (see Pinker, Steven: Gewalt - Eine neue Geschichte der Menschheit, 2012). Mediation has not yet been able to provide such evident proof.

^[12]Nagel, R. / Wimmer, R.: Einführung in die systemische Strategieentwicklung, Heidelberg 2015.

^[13]See, for example, Faller, K.: Konfliktfest durch Systemdesign, Stuttgart 2014, also Gläßer / Kirchhoff / Wendenburg, Konfliktmanagement in der Wirtschaft, Baden-Baden 2014.

^[14]Scharmer, C. O.:Theorie U. Leading from the future, original 2007, Heidelberg 2011.

^[15]Glasl, Processes of Organisational Development, in: F. Glasl and L. Houssaye (eds.), Organisationsentwicklung. Bern, 1975.