10 good reasons not to go to court
Alternative conflict resolution procedures
25 Basics of mediation (17)
In serious, complex conflicts, not going to court is not a solution either. But there are alternative conflict resolution procedures. They have been tried and tested over many years, are established in many industries and conflict situations – and may also be of value to you and your business.
To Misunderstandings from the beginning AvoidIt is by no means reprehensible to go to court to get justice. However, it should be clear that what you believe you can claim and call right when you go to court often remains as either error or injustice when you return from court.
Apart from that, it is not worth going to court if you hope to find happiness there. In this case, I wish you the best for your endeavour. It won't be easy, but no-one has promised you that, nor did you ever hope for that. You are far too combative for that. Attention: Simple remote diagnosis. Doesn't matter.
Enough of the clarifications and insinuations. In the 17th part of the series is about the Variety of conflict resolution methodswhich „have developed in the shadow of the law“ rightly(!), i.e. neither exist without courts nor can they continue to exist without them. Mediators often forget this.
The thing is called „Alternative dispute resolution“ (AKL)but they are in fact procedures of the Conflict managementwhich by no means consistently claim to resolve conflicts. Some procedures merely want to make an attempt in an alternative way and at least provide the opportunity for the conflict to be settled and resolved.
They call themselves alternatives because they are alternatives to the court, to the state-legal conflict resolution method of delegation to a judge. This is in fact a conflict resolution procedure, because a judgement or decision is issued with certainty and the conflict is thus ended. Sometimes only after a few instances. But that does not change the structure and the claim of this legal conflict resolution method.
(Between you and me: the social conflict is not resolved in court either, but merely transformed into a legal problem, which is dealt with and resolved by the court. This (legal) result is then – fed back to the parties involved in the conflict as feedback from society as a whole/the conflict environment, so to speak, who can and must then live with it. In any case, further escalation is prevented. Courts are violence prevention procedures and conflict escalation stoppers. And sometimes that alone feels so good for everyone involved that they can be happy again. Banishing danger as a peacemaker).
Modern conflict management in organisations through conflict management systems
The motorways of simple conflict management usually run from failed negotiations directly to a lawyer and from there to court. For most people, this is a stone's throw once they have started with a lawyer. The binary coding of communication (who is right?!) has already begun and the hope of finding confirmation from a trusted lawyer is rarely disappointed. And that's perfectly fine, because both sides of the conflict rarely go to a lawyer together. After all, legal advice is not something objective, but contains a strategic component, which is why it is rightly forbidden to represent both sides as legal counsel.
In any case, this highway of simple conflict management is completely inadequate for the demands of today's world. We increasingly need further procedures, alternatives to independent (frustrating) negotiations and the delegation of conflict resolution to the judge. And mediation is by no means the only alternative to this conflict resolution procedure.
There is much more.
Forms of conflict resolution
1st negotiations
Direct negotiations are the easiest way to ensure that episodes of conflict remain episodes of conflict. Tragically, however, poorly conducted negotiations have exactly the opposite effect. For example, if they are conducted competitively, approached in a patronising manner and animated in the mode of being right. At best, a (lazy) compromise is found, but rarely any creative work is done. Nothing really new is created and potential is left unrealised.
Wisely, from the very beginning Escalation clauses which, in the event of negotiations failing, lead to the a moderating, mediating or arbitrating third party is consulted before a judge may be called.
2. conflict moderation
A third party is involved in the negotiations to support the parties in negotiating in an objective and goal-orientated manner and to find a mediated solution to their conflict. He acts as a ModeratorThe counsellor can also act as a mediator, insofar as they merely promote communication and resolve misunderstandings, but do not intervene further. Such an approach can be promising for conflicts that are not very deep-rooted.
3. mediation
In this case, a third party not authorised to make decisions supports the parties, self-determined to jointly develop a solution that is in the best interests of the company.
It is particularly suitable if the relationship between the parties to the conflict is to be maintained or restored, if creative, future-orientated solutions are to be found or if it is no longer possible to reach mutually consensus-oriented, autonomous solutions through bilateral negotiations due to the disruption to the relationship that has occurred. If the specific point of contention is a manifestation of a smouldering underlying conflict or if a legal process could not meet the real needs of the parties involved, mediation should be used. Since 2012, mediation has been subject to the Mediation Act more detailed regulations: Anyone wishing to act as a mediator is responsible for the necessary qualifications (§ 5) and must observe the restrictions and obligations in accordance with §§ 2 - 4, and as a non-lawyer also § 2 Para. 4 No. 3 of the Legal Services Act.
(You can find a separate article on the Mediation Act here).
4. arbitration
In arbitration, the neutral third party first attempts to mediate between the parties, but then, if necessary, issues its own judgement in the form of an arbitration award. Valuation of the dispute. It is for the parties not bindingHowever, it is often a great help in reaching an amicable solution.
Arbitration proceedings are of great importance in many areas, especially in consumer disputes and construction matters. These often involve „purely factual issues“, the emergence of which alone can be annoying and upsetting. In this respect, emotions and relationship dynamics also play a role, of course, but in a different way than in „relationships“.
Numerous business sectors offer to accept the arbitrator's judgement as binding. Here, arbitration proceedings are mass or at least everyday business and support the ease of doing business and tolerating differing interests.
(Click here to find out more about conciliation).
5. arbitrator's report
If the conflict is mainly centred on a Factual or technical question If a dispute has arisen between the parties, the clarification of which requires expert knowledge or experience, and an amicable solution subsequently appears possible, the involvement of an arbitrator is recommended.
Arbitrator's report finally clarify the factual question - and the speedy and economic compatible. Very advantageous. They can also be easily integrated into other conflict resolution processes, e.g. mediation.
The parties simply commission one (or more) experts they trust to prepare an expert opinion. They also agree that the result of the expert opinion is binding on them. And the conflict resolution process is complete. If the parties do not reach an agreement, the arbitration report is binding. binding (also for any subsequent court proceedings). Although case law allows the defence of obvious inaccuracy by analogy with Section 319 (1) sentence 1 BGB, the standard can (and should) be waived to avoid later disputes. The resulting risk remains low. However, you should not skimp on the selection of the expert, but rather choose a highly qualified person. The residual risk of a mistake is minimised by the fact that, if the worst comes to the worst, this expert can be held liable.
6. expert opinion
If one (or both) of the parties does not agree with the binding effect of an arbitration report, the parties can also request an arbitration hearing. No binding effect, only unilateral, conditional or only provisional binding effect However, experience has shown that the de facto binding effect is nevertheless high.
Compared to the usual private expert opinion, the jointly commissioned expert opinion has the great advantage that it avoids the reactive, escalation-promoting attitude of rejection that occurs with a party expert opinion.
7 Adjudication
Special circumstances require special approaches. In large construction projects, there is often a conflict between the objectives of speed and clarity. The necessary conflict resolution must not interrupt the construction process (for too long). Therefore, a procedure is required that creates the clarity that allows the parties involved to drive the project forward, but still enables a final clarification.
The parties agree in the adjudication that the Findings of an expert commissioned at short notice initially binding are not excluded from subsequent judicial or arbitral review. The Provisional binding effect is generated by the fact that the parties contractual to comply with the expert opinion and become liable for damages in the event of non-compliance. The procedure therefore also has a preserving evidence function without having the adversarial character of court proceedings for the preservation of evidence.
8th Dispute (Review or Adjudication) Board
In the case of large-scale projects, the company usually Expert panel to resolve emerging conflicts at short notice; however, this can also be done on an ad hoc basis as soon as a conflict arises. The Permanent Dispute Board has the advantage of rapid availability and decision-making capability because the members are already appointed and familiar with the project. However, it is relatively time-consuming. In addition, it is not possible to predict which specific area of expertise will be required at a later date. The following solution is therefore favoured by experts: Only one member of the board is appointed initially, who then – appoints the other members as required, depending on the specialist issues – involved.
The contracting parties may determine by corresponding agreement whether the committee is to have only a non-binding recommendation should deliver (Dispute Review Board; comparable to an arbitrator's award) or whether his award Provisional binding effect should have (Dispute Adjudication Board).
Also hybrid forms are common, so that, for example, a non-binding vote acquires the binding effect of an arbitration opinion, unless one party submits an alternative opinion within a certain period of time. notice of dissatisfaction is issued. In the procedure developed by the International Chamber of Commerce in Paris (ICC), the Combined Dispute Board the Board generally makes a recommendation, but if one party so requests, it makes a provisionally binding decision; if the other party objects, the Board decides whether to make a recommendation or a decision.
9 External evaluation (Early Neutral Evaluation)
This is very common in the USA, but hardly used here. Conflict assessment procedure an expert, neutral third party assesses the arguments of the decision-makers and lawyers of the parties in a hearing on the factual and legal situation. It can be agreed that written submissions are submitted in preparation for the hearing. In the hearing, which is structured by specific agreements on the order and duration of contributions, submission of documents, rules of discussion, etc., the parties or their representatives present their positions. By asking questions, the evaluator obtains an assessment of the probable course of the legal dispute. After a break in the counselling, the evaluator makes his or her assessment known to the parties.
The decisive factor is the Presence of decision-makers of the parties. The strengths and weaknesses of their own and their opponent's position are clearly demonstrated to them during the hearing; this puts the usual optimism into perspective and prepares the ground for concessions. The thought process that would otherwise take place between the filing of the lawsuit and the court settlement, which involves a considerable amount of time and transaction costs, is reduced to a single day.
The procedure is non-public, time-saving and cost-effective – compared to what is otherwise undertaken in these areas.
10 Internal evaluation (Mini Trial)
A neutral third party provides the parties with their own assessment of their chances in the process by providing a Simulated court hearing moderated. It is essential that this negotiation takes place before a panel of high-ranking Decision-makers of the parties. They should gain a view of the dispute that is not clouded by the possibly over-optimistic view or the conflict proximity of their employees and the persuasiveness of the positions of both sides in order to subsequently find solutions that are in line with their interests in bilateral negotiations or with the help of a mediator or evaluator. The primary aim is therefore to typical To dispel overestimation of one's own positionwhich often stands in the way of negotiated solutions.
11. arbitration proceedings
The arbitration proceedings are adversarial and orientated towards the state legal system in terms of content, but nevertheless have the following characteristics AdvantagesThe parties appoint the judges themselves; they can also remove an arbitrator. The proceedings are not public. The atmosphere at the hearing is generally more relaxed. The parties can provide the court with guidelines for the organisation of the proceedings and the law to be applied. There is usually only one instance, so there is a chance of a quicker conclusion.
Disadvantageous are the cumbersome nature of the appointment procedure (which relativises the time advantage) and the high costs of the arbitration tribunal, which are borne by the parties. However, there are also institutional arbitration tribunals, for example at chambers of industry and commerce, which offer very cost-effective proceedings. The ICC (International Chamber of Commerce in Paris) introduced new arbitration rules on 1 January 2012 to ensure a more efficient procedure (http://www.iccwbo.org); the DIS (German Institution of Arbitration; http://www.dis-arb.de) offers an accelerated arbitration procedure.
The arbitration proceedings should also only be ultima ratio The parties may also agree on an alternative procedure in the event that the primary ACL procedure does not lead to an agreement.
For its part, the arbitration proceedings can be combined with alternative elements. be enriched:
With the Last-Offer Arbitration each party submits a "final offer" in writing after the contentious oral hearing, to which it would be prepared to conclude a settlement if necessary. It can be both the both the overt and covert submission of the offer It can also be agreed that the arbitral tribunal will take note of the offers before or only after its deliberations. In any case, the arbitration tribunal may only make an award that corresponds to one or the other offer. It must accept the offer that is closest to the amount it considers to be correct.
The effect of this procedure is that the parties will endeavour to come as close as possible to the arbitration tribunal's presumed decision. They know that only a realistic settlement proposal has a chance of being implemented; this counteracts the procedural optimism that inhibits settlement and the tendency to make the highest possible initial demands, thereby promoting objectivity in the negotiations. The The last-offer procedure therefore promotes agreement, especially if the offers are disclosed. If an arbitration award is nevertheless made, it is more likely to be accepted because it is not as far removed from the company's own procedural objective as the original maximum demands.
With the High/low arbitration the arbitration tribunal's decision-making options are not limited to two fixed amounts, but to a certain range. The Parties provide a framework within which the decision must be made. In this way, convergences of the original maximum positions that have already been achieved are retained, the process risk on both sides is reduced; there can no longer be an "all-or-nothing" result.
12. conflict resolution procedure
This procedure is not directly a conflict resolution procedure, but rather a procedure that helps to select the appropriate conflict resolution option. If the parties already wish to agree on an alternative solution to any conflicts when the contract is concluded, but not yet on a certain procedure, or if they can agree on an alternative conflict resolution after the conflict has arisen, but not on the specific type of procedure, it is possible to commission a third party to specify the optimal type of procedure in a binding manner.
13 Cooperative practice (CP)
This is a qualified form of co-operative negotiation. The specially trained lawyers undertake to represent their party exclusively in the development of a consensual solution and to resign their mandate in the event of failure. A neutral negotiator is not used; his absence is compensated for by the involvement of coaches and experts. The parties' lawyers also use mediation to work towards a solution that best suits the interests of both parties.
The procedure prevents a certain „mercenary mentality“ among legal advisors and commits them to a code of co-operative negotiation, the „, so to speak;Ethically clean version of legal advice“ - or, if you like, the correction of the original assumption of contradictory procedures that the correct opinion C (synthesis) develops from party opinion A (thesis) and party opinion B (antithesis).
The procedure is mainly in separation and succession conflicts where psychological and economic skills are important in addition to legal expertise. As it requires a high level of human resources, its potential applications are limited.
A question on 2: Conflict moderation: How promising can such an approach be for conflicts that do not go very deep, and what is important?
Of course, a moderator or facilitator cannot really promise success. So if there are no hardened conflict positions, but the "topics of discussion" are extensive and complex, then it makes sense to use a third party to accompany the dialogue. The facilitator moderates the course of the conversation, controls the topics, builds them up, handles the complexity of the entire conversation so that the participants can concentrate fully on the content. They do not need to devote any time to thinking about the individual points or taking notes and documenting anything. The moderator takes care of that. This helps to prevent a "no" from becoming a "defiance" and a minor conflict episode from turning into a full-blown conflict.
It is important that the participants and the moderator are clear about the joint assignment/contract: Who does what? Who has what to do and what to work on so that all expectations are met and nobody is disappointed. And - quite clearly - a good conflict moderator is needed. This is a challenging task, especially when there are many participants in the dialogue.
Thank you for the detailed answer!
With pleasure, dear Kerstin.