History of mediation

Modern mediation, historical precursors and some unresolved research questions

 25 Basics of mediation (19)

Historical observations always have special features. They reflect the present and not the past. Just as the past cannot be changed in retrospect, the present is not free of historical experience and the will to wrest meaning from it.

If someone was called a mediator 400 years ago, this does not necessarily mean that their understanding of mediation is based on the same ideas as today. If you fail to take a precise historical view, you may be ignoring ground-breaking changes in mediation over time due to the many similarities. Terms may remain, but their content and interpretation have changed. Historical considerations must shed light on this. For example, the scientific revolutions of Sigmund Freud or the „systemic turn“ in the last third of the last century lay between the activities of the mediator Contarini at the Peace of Westphalia (1648) and modern mediation. Both events fundamentally changed our understanding of what we do and who we are.

Here you will find an overview of the 25 basic principles of mediation that have been published.

Modern mediation, struggling for recognition and emancipation, is always tempted to construct historical parallels and causalities prematurely and without sufficient source criticism.

Even if this is not done with malicious intent, it remains bland, transparent advertising that in no way makes modern mediation more credible. Quite the opposite. With such strong historical roots - as is sometimes claimed in serious publications - on which today's modern mediation can draw, it would really be a pity what it has become and what it actually achieved in the centuries up to around 50-60 years ago, wouldn't it?

The matter seems to me to be somewhat different.

I. Theses on the historical localisation of modern mediation

The following section raises a few controversial and research questions, which will not be conclusively clarified here, but which should encourage people to think about mediation. This is most likely to interest mediators and academics among my readers. But perhaps these questions will also arouse the interest of others.

I would like to put up for discussion that the Modern mediation is an original, independent social development of our time. Of course, it has historical precursors and approaches. Of course, there have always been third parties in conflicts who have helped to find a solution. Conciliators, authorities, recognised mediators, but not those who acted on the systemic ideas of process consulting and support, as the vast majority of today's mediators do consciously. And the rest do it unconsciously these days.

Nevertheless, there are fundamental differences between a mediator from 2000-3000 years ago, from 400 years ago and a mediator today. These differences cannot be explained in detail here, but are still the subject of research.

Rather, what is decisive for this article is the thesis, which has already been mentioned in the other basic articles, that the Modern mediation is based on a functionally differentiated and efficient legal systeminstead of replacing it.

How the law serves mediation

Model of conflict management levels

Third parties instead of kicks in the conflict or what distinguishes judges, arbitrators and mediators

The Modern mediation develops its social(!) power in a highly differentiated and complex environment that proactively produces contradictions. However, this environment is willing to endure moderation, as the state-organised, functionally differentiated legal system largely fulfils its assigned functions satisfactorily.

In other words, the socially relevant modern mediation is not a response to the fact that the legal system is inadequate or even in decline, but that its functions (such as physical security and order, safeguarding the monopoly on the use of force) are being fulfilled. This is the ground on which mediation can grow.

II. Historical precursors

Confucian philosophy, which is traditionally widespread and socially inhaled in China, is often used to prove that mediation„has always taken place there and that conflicts have been resolved through mediation for a long time. The literature on mediation states that the prevailing idea of harmony and conciliation there meant that going to court was seen as a disgrace and avoided.

Of course, the shame is a little different for us Germans, who are known as the world champions of litigation. This is mostly due to the fact that there are so many legal expenses insurance policies in Germany. 50% of all Germans have one. One in two! And those who have such insurance also use it. There's bound to be some reason for it. That says little about character, but a lot about the insurance situation. However, there are not so many legal expenses insurance policies in Germany because Germans are so litigious, but because insurers have simply miscalculated. They once offered cheaply and grandly that anyone could get a lawyer at any time. Who wouldn't take out insurance? No-one could have guessed that this would actually change the behaviour of those who brought claims. Well, – the insurers' remorse can be seen quite clearly in their willingness and readiness to promote mediation. Legal expenses insurance is simply expensive for the insurer.

But back to China: It is worth analysing the differences in mediation practice and the understanding of mediation in order to clarify whether modern mediation actually has historical roots in China. I doubt that. Moreover, China was, so to speak, the World champions of the 19th and 20th centuries in the reception of German law. It was socially problematic for modern China that no practicable and compatible legal system existed, that it had not succeeded in securing individual rights and establishing duties. Unlike almost any other country (except Japan, I'll come to that in a moment), China absorbed and transferred German civil law so that it could provide civil society with the rights, obligations and securities that were indispensable for a modernising society. The legal system is needed before mediation can become socially relevant.

You may be interested in the background to this blog post.

The situation is very similar with Japan. Japan also endeavoured (and succeeded) in adopting the German Civil Code and adopting it almost unchanged. And anyone familiar with the BGB, dating from 1896/1900, knows that it is by far the most abstract, formal and linguistically least suitable book for everyday use - and one of the greatest civil law drafts ever! The masterpiece of German bourgeois society.

On the other hand, there are also legal systems that are not normatively characterised and certainly have „meditative elements“. „Die“ sogenannte Cadijustice  for example: A legal system that functions very differently to ours, not characterised by norms, but rather a kind of collection of individual cases. No decision can be repeated, but only applies to the specific case with the specific parties involved. There is no legal certainty in our sense. Abstract legal principles? Nowhere to be found. This is because the centrepiece is not the search for universal law, the supra-individual essence of peaceful coexistence, but the ability of the parties involved to resolve their conflict themselves. Cadijustice, which admittedly also has its problematic aspects, aims to increase the personal responsibility of those involved. This forges close links with our Western European-influenced process counselling and mediation models.

III Precursors of mediation in antiquity

Mediation initially means – Latin and Greek – "mediation". This is deeply rooted in our communal and social history. The idea of mediation in cases of conflict is of course not new or even modern. This approach to conflict resolution is as old as conflicts themselves and has already been used for conflicts in the past. Ancient Greece documented. At that time, it was common for between hostile city states neutral city states intervened. These city states represented both their own interests and those of other city states. This was because they were all threatened by impending conflicts among themselves, e.g. during the Persian Wars (from around 490 BC). Mediation, as it was usually practised at the time, was firstly determined by vested interests and secondly was at best arbitration. Not infrequently it was also enriched with threats and coercionso that it finally became quiet and peaceful again.

I recommend this article on the difference between mediation and arbitration.

This article is helpful on the basic ideas of modern mediation: mediation, equalisation, transformation.

IV. Precursors of mediation in the Middle Ages

The Middle Ages and their social developments probably played a decisive role in the development of arbitration and mediation aspects. Above all within the framework of church organisation and rulewhich already represent the foundations of the later modern state, „third party-supported“ negotiations and mediations are institutionally developed, whereby – and this is essential for the present context - the LAw as an ARGUMENTATIONAL BASIS begins to emerge. These are the beginnings in which law no longer merely establishes rule, but also becomes the basis of legitimisation for those in power. Without (having) rights, rule is no longer sustainable and justifiable.

This will significantly contribute to the fact that the many powers of that time (church, princes, emperors, cities, confederations, universities, etc.) will fight and fight over this right. And the right to the right will become the spoils of the victor.

The question of who is right is increasingly guiding negotiations and mediation. This was a step forward and has its origins in the 12th century, which historians call the „Century of law“ describe. The Church received Roman law, developed canon law and established a legitimising legal system that would set an incredible example.

Such a right, or rather the right as a recognised system of ideas, inevitably leads to the use of violence, initially one and later shared. Modern state power began to develop – and to seize „ the law“. Mediators, as there were at the beginning of this process and who had mediated between the emperor and the pope, were then no longer needed for a time, as there was someone who had (enforced) the law and could enforce it (even against others). It was not until the ensuing power struggle between the newly formed states of Europe, which was litigated in war, that the need to use arbitration and mediation developed again.

V. Precursors of mediation in the early modern period

The early modern period begins with the The emergence of modern state power and state legal systems, initially and groundbreakingly in Sicily and Frederick II of Hohenstaufen, the first modern (administrative) state in European history (still in the High Middle Ages), which copied not a little from the Church and yet was influential in terms of style. However – the The early modern period is the time of emerging interstate warsThe civilian population suffered greatly as a result (keyword: 30-year war).

What does this have to do with mediation?

It is the typical stalemate situation between conflicting parties of roughly equal strength. Violence leads to more violence and to Pyrrhic victories. International, intergovernmental law does not yet exist. It is only just beginning to develop. So once again Intermediary. The already mentioned Contarini was the key mediator at the end of the Thirty Years' War, mediating between the warring states for several years, always travelling back and forth between Münster and Osnabrück. Shuttle diplomacy at its best. He was also explicitly described as a mediator. And he will also have worked in a highly diplomatic, empathetic and versatile manner. But was he a mediator in the modern sense, carrying out counselling interventions with similar ideas? In many, not insignificant aspects, one can assume so. In some others, probably not (keyword: transformation idea).

This article provides more information on the idea of transformation.

Within the scope of social conflict management Even then, there were already institutions and organisations that mediated between conflicting parties, for example in the estates „committees“, between spouses or in the guilds and craft guilds. What is needed here is socio-historical research that collates the details and makes a historically appropriate assessment from the perspective of mediation in conflicts, without rushing into a rash and uncritical „genealogical search“.

VI Modern mediation

The Modern mediation has its institutional roots in the USA. Here, the idea of mediation and arbitration has developed further – and the Integrated idea of transformation. This is not without reason in the course of the Existentialism and the Humanistic psychology in modern society, characterised by individualisation and connectivity, among other things.

I maintain that the scientific, economic and social revolutions of the 19th century, which generally characterised the The age of modernity were responsible for the fact that modern mediation began to develop – and it is no coincidence that this happened during the peak and final phase of the creation of law. The large Legal codifications all originate from the long 19th century, which is outlined by 1789 and 1914 and at the same time heralded the differentiation of the legal system. In legal terms, we are building our global legal system with the same building blocks as in the 19th century.

However, we are so far advanced with our global home that we need to develop new tools in order to develop and expand our complex, differentiated world appropriately. Modern mediation, building on the positive experiences of arbitration and conciliation institutions, is a further tool and attempt at a solution.  It will have to prove itself. 

However, it can be summarised as follows:

• An important starting point is the ADR movement in the USA, a reaction to the inadequate legal treatment of social conflicts, especially in public building and planning law.
• It led to the idea of a multi-court house and probably the „most radical upheaval in civil law of our time“ (Yarn).
• Since the turn of the millennium, associations and organisations have been forming in America and Europe to spread the ideas of mediation and bring them to all areas of society and business.
• At the start of the new millennium, important directives will be issued in Europe for the member states to enrich their legal systems with regulations on mediation and (consumer) arbitration. The aim is to promote out-of-court dispute resolution across the board, also in order to reduce the burden on the courts.
• German criminal law has long had the institute of the Victim-offender mediation, cf. section 46a StGB, a tried and tested field of mediation. There are corresponding regulations in other countries.
• Mediations are increasingly being conducted with a high public profile. In Germany, the mediations surrounding Frankfurt Airport, the dispute between the federal government and TollCollect, the motorway toll, between the Bundesbank and its former board member Th. Sarazin through the Office of the Federal President and currently the dispute surrounding the AfD in Baden-Württemberg have become well known.

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You can listen to INKOVEMA's radio report on the mediation on the occasion of the split of the regional AfD on Detector.fm listen.

• The training of mediators is taking on socially relevant traits; there are over 600 institutes in Germany.
• Universities are beginning to set up and successfully establish (Master's) degree programmes.

What will happen next? Well, that remains to be seen. Historical experience in a very similar field points to a positive development of mediation. The „psychotherapist“effect is well documented and is likely to be even greater for mediators in their field. If there are mediators, there will also be more mediations. Demand will be created as long as the results are positive.

And even those who doubt this need not despair of society or people: the high number of trained mediators nevertheless brings about a different way of dealing with conflicts, because they influence their social environment, whether as managers, HR staff, bosses, colleagues, neighbours or teachers. Mediation skills never hurt – and are always worthwhile.