How the law also serves mediation

25 Basics of mediation (13)

This thirteenth contribution to the basics of mediation deals with the Functions of the law. Basically, this is a very legal matter, but I would argue that it is just as important for understanding mediation. I would like to the relationship between law and mediation and say less about the specific functions that substantive law assumes or can assume within a mediation process.

I. Introduction

Anyone talking about mediation today would do well to consider the context of a legalised society.

This corresponds not only to the demands of the law (and the state) to which citizens and companies are exposed, but also to the intentions and objectives of mediation itself.

Because mediation is not simply an alternative to the law, but its consequence. I would like to explain this in the following and illustrate it using the functions of law as they operate today in (post-)modern society. In doing so, an important aspect of mediation will become clear, namely its consequential character in a legalised society based on private autonomy.

This leaves certain Side effects outside of observation, paradoxical effects and consequences that nobody intended, but which will emerge somewhere at some point in a complex world if such an intensive instrument as mediation is increasingly promoted and utilised.

II Law as part of social norms fulfils certain functions

Legal sentences are Varieties of social norms.

There are other forms of social norms, such as customs and traditions, as well as religious and ethical or moral norms. These are not (or no longer) always incorporated into our law. Since the „Enlightenment“ we have largely endeavoured to separate law and morality. However, the details are not relevant here.

What is special about law is not so much its abstract-general regulatory character (laws apply to many addressees, i.e. generally, and to a less precisely described situation, i.e. abstractly). Law can also be set concretely and individually (policeman: Stop!“ or teacher: „You will receive a grade 5 for your performance.“). In contrast to other social norms, what makes it special is its „Will for comprehensive systematics and consistency“.

However, this says nothing about the functions, i.e. the tasks and directions of legal regulations. In a constitutional state or a society governed by law, the law regulates the relationship between the state – citizens as well as the relationship between citizens, whereby it also regulates that citizens have the freedom to make their own arrangements (private autonomy, freedom of contract).

III Functions of the law

Law works.

The history of law at least suggests that this conclusion is not entirely far-fetched. However, for law to function, a clear allocation of roles is required, which creates a so-called relationship of superiority and subordination, a relationship of subordination. People in one role (enforce) the law, people (who can be the same!) in other roles submit to the established law. In concrete terms, this means that the member of the Bundestag, the public prosecutor, the police officer, the judge and the chancellor must also abide by the law. Behind the state that (enforces) the law is the legitimising and law-making community of responsible citizens. At least in a constitutional state, in a state that follows the idea of law. And this idea is the core of the legal functions.

In the following, I will list individual aspects of legal functions that often only require a tiny change of perspective without naming fundamentally different functions. This implicitly emphasises the multi-layered and complex nature of law. At least that is the intention

Mediation is confronted with these aspects and its role holders (mediator, mediants) are subject to them. Mediation is not an alternative to the law, but utilises a possibility of conflict resolution granted by the law. This article aims to make this clear.

1. law organises.

Law organises coexistence and prevents chaos in (growing) large-scale societies. It is precisely written law that enables societies to continue to grow and maintain social order. The language says it all.

Law and order become necessary in the social network when the social norms, which derive their effectiveness from personal contact between the parties involved, are no longer sufficient to ensure orderly coexistence.

From what we know of early state societies (and what we can see today in large organisations and companies), Dunbar’s number (= approx. 150 people) is a good benchmark for this.

2. law protects.

Law protects and liberates the individual. Freedom through order, one could say from this perspective. This is the flip side of the regulatory function. On the one hand, law imposes restrictions (see above), but it also liberates and protects against encroachment by others, who are also restricted. Neither the state nor a third party may interfere with the freedom thus provided. The individual is freed to protect himself independently and alone from encroachment.

In 1215, Emperor Frederick II decreed the regulation of self-defence for the first time in his great work of law Liber Augustalis. Any subject could defend himself against an attack by stretching out his arm and invoking the emperor's power of defence. („Leave‘ me alone or I'll get my big brother!“…is perhaps a remnant that we can sometimes encounter in schoolyards and backyards today… Sometimes it even works.

This addresses an important aspect of law that is particularly significant for mediation: its function in preventing violence.

3. law prevents violence.

In terms of conflict, law is a programme to prevent violence by monopolising violence.

Court proceedings, for example, are first and foremost procedures to prevent violence if claims under private law are not satisfied. Here, the dispute is settled without violence in an orderly legal process and a binding decision is reached. For the Federal Constitutional Court, this function of court proceedings to prevent violence is the central element of the rule of law. This prevents the (one-sided) private use of force to resolve conflicts and puts an end to fighting and war within society.

With regard to the pacifying and calming effect of the law, however, the causalities should not be overestimated. It took more than creating law to bring about peace within society. Whether we look at economic trade, the urbanisation of society or the improvement of hygiene standards in general, there is much to suggest that we are dealing with a multi-causal, mutually effective development process. Law is often an expression of social change rather than its cause.

4. right controls.

Law controls by encouraging or prohibiting behaviour.

With the appropriate duration, valid and enforced law creates legal conviction, or at least legal awareness, from (merely wrested) obedience to the law. Those subject to the law can become convinced of the law. In this sense, law realises a (social) Integration function. It characterises the addressees. The „sender“ rightly educates - what a fitting double entendre in the expression! It also educates those who do not want to abide by the boundaries. Because there is also respect in disregard.

Law not only controls, but is also controlled. Law adjusts, is capable of development, even if by „nature“ conservative. In any case, later law modifies existing law and declares it to be outdated. Here, law takes on a "function of change or improvement". Just as social change influences law, law influences social change.

The extent to which the idea that (conditional) law and legislation can be used to precisely control social society is still valid today would go too far at this point. However, there are considerable doubts about the ability of law to steer society precisely.

5. law limits itself.

However, if law controls, shapes and educates the addressee, it also controls, shapes and educates itself or the lawmaker. In other words: law does not necessarily prevent a „hü!“ today, but it will certainly prevent a „hott!“ tomorrow. Anything else would be arbitrary – and not law. This is definitely a modern idea of law. Law not only indicates guidelines to the addressee, but also the limitations of the sender.

In this sense, every basis for authorisation (of the legislator) is also the basis for a claim (of the person subject to the law against the legislator).

Or to put it another way:

The Power perspective says that the „right to the right“ is the right of the strongest. The „winner“ determines what applies in the future.

The Rule of law perspective on the other hand, claims that this „right to the right“ implies a „duty to limit rights“, precisely for the protection of all those who are weaker.

Sounds as complicated in theory as it actually is in practice. Because the power perspective is simply closer to us, we are more practised at it. But it does not adequately capture the functions of modern law (created by the rule of law).

In any case, the law opens up and enables all those involved, but also has limiting and restrictive effects. These multi-layered aspects of law are reflected in the Mediation echoed.

6. right relieved.

Law secures - in a legalised society justified(!) - expectations.

Law acts here as a behavioural safeguard for a social order. It helps people and organisations to come into contact and trade with one another, especially with strangers.

Law has this function in common with other social norms. Law creates certainty of expectation and eliminates behavioural uncertainty - at least to a certain extent. Schelsky recognises this function "right back to the early days of human culture and especially today in the analysis of primitive societies" as a decisive guiding principle of law. Law thus enables planning, excludes possibilities and focusses more strongly on others. Equalisation and the permanence of human relationships are fundamental ideas that law serves and seeks to make real. This is closely linked to the law as a programme to prevent violence. In this respect, law creates security in conflict, socialises and disciplines.

7. law.

By providing an order, law is forced to establish it and to straighten out other ideas. Right chooses in its binary coding of right/wrong always excludes only one possibility. In the binary code of right/wrong, there can therefore only be one right.

Ineffective and non-judicial law would have no effect and thus no meaning, i.e. no function. Judging is therefore the "most elementary function of law", even though it is merely its consequence and downstream of it. Or to put it succinctly: law without law enforcement is almost unthinkable. Judging balances and liberates, shapes and educates and ultimately reorganises.

It is therefore no coincidence that in the historical struggle between social groups, the victor, the state power, has made the law its own – and has incorporated the subjugated, the „losers“, the church, the cities, leagues, universities etc. „i.e. legally integrated them. „incorporated“, i.e. legally integrated them. After all, if the law is to be effective, it must be backed by the ability to enforce it by force if necessary.

IV. Significance for mediation

Mediation takes place not in a legal vacuum instead. This is especially true for a law-oriented and legalised society like ours. I am not even referring to the Mediation Act, which explicitly provides a legal framework for the practice of mediation. This is perhaps of the least importance for mediation processes.

The importance of the law, of state law that is actually capable of enforcement, is above all in its violence-preventing function to see. Even in societies where access to justice is far more problematic than in Germany and mediation has developed primarily for this reason (especially in the USA), the effect of (state) law in preventing violence still applies. Violence and violent struggles are by and large no longer a recognised mode of conflict resolution today, and where they are, they must be clearly and audibly justified. This is primarily a consequence of the legal programme that has been implemented.

Specific substantive law is still of great importance within the mediation process. This has to do with the nature of law. In sublime terms, the law is the The idea of justice – and that is good for everyone. However, this actually results in different perspectives:

- On the one hand, law is like a guidelinea guiding rope that leads to justice, to happiness or at least to a good solution. Do what is written and you won't go wrong. Conflict parties then come to the idea that the law holds the solution to their conflict. And their lawyers and judges support this idea – or justify it in the first place. So you can look at the law, and if there is nothing in it, you can look at the judgements handed down so far – and if there is no solution there either, then you look at the commentaries on the laws – somewhere a legal scholar must have written what is right and proper. The only stupid thing is that the opposing side does exactly the same thing – with different signs and reading results.

- On the other hand, the Right a framework, within which they can develop freely. What citizens, including conflicting citizens, create and agree within this framework also establishes (privately agreed) law, establishes and shapes the legal relationship between the parties involved. Right enabled - within the existing law - Relationship work, which could also have been carried out differently and yet claims validity as private law. This is the legal scope of possibilities that Mediation occupied.

III Conflicts are situations of uncertainty.

And in situations of uncertainty, we humans find it difficult to let go of our points of reference, such as the guiding rope, because we hope that it will lead us to a just solution.

But it does not – because its main task is to prevent violence in the name of society as a whole. This is sometimes achieved through a certain tactic of attrition („legitimisation through proceedings“), but in any case with success.

Law is only an inadequate, sometimes enriching instrument for conflict resolution, which should lead to an individual and concrete solution. However, it supports such searches, e.g. in mediation, so that they can take place in a non-violent atmosphere.

That is - I would like to think - something for which the Mediation can be grateful.