Structure of the mediation process

25 Basics of mediation (3)

§ Section 1 (1) of the Mediation Act – „Mediation is a […] structured procedure“

When I started studying law in 1998, it wasn't long before I was asked whether I would have to memorise all the paragraphs. At first I answered in the negative, slightly incredulous as to whether I would still have to do this. But when I realised what I was actually facing, I replied slightly desperately: "If only!"

It is not uncommon that behind legal terms sometimes a world of its own stands. I don't want to emphasise the word "own" here, but rather "world", to illustrate how much content is packed into individual words or has to be interpreted into them.

The legislator of the German Mediation Act requires mediators to "a structured procedure" carry out, cf. § Section 1 (1) Mediation Act. Fortunately, the legislator has left further developments in the way conflicts are mediated to the practical requirements and experience of mediators.

It strengthens the diversity of the mediation movement if mediators can continue to develop the mediation process free from detailed legal requirements and many different approaches to out-of-court conflict mediation can be understood as forms of mediation. And must.

The mediation process must be a structured process

The Mediation Act aims to Out-of-court dispute resolution procedureThe aim is to promote mediation in particular and to create a reliable legal framework for the implementation of mediation. What the legislator meant by structuring the mediation process is not stated in the law itself or in the legislative materials. The legislator's specification of precise procedural rules was obviously undesirable: after all, the legislator knows only too well how detailed procedural rules can and often must be. However, this does not apply to mediation proceedings.

The mediation process is intended to help the mediating parties to break out of familiar conflict resolution approaches, legal ways of thinking and types of procedure. While the law asks who is right and therefore has a claim, mediation is not about this binary coded communication (Luhmann). Instead, the focus here should be on alternative, i.e. more socially complex, forms of communication and approaches to solutions.

The classic school case of mediation still illustrates this clearly: In the so-called "Orange case" A and B are in dispute about who is entitled to a certain orange. Both make the legal claim to get the orange. In this case, mediation poses the question, on the basis of which interests A and B want the orange. The point is not to defend the position that the orange can be claimed in each case (e.g. A says that B got the orange last time!), but to clarify the underlying interests. When asked about this, it turns out that A needs the peel to bake a cake, while B would like to drink an orange juice. The solution after a successful mediation would therefore be: A gets the peel, B the peeled orange. As befits school cases, it's nice and simple.

In practice, it is highly complicated and sometimes complex to identify and harmonise interests, especially as they can change and develop over the course of mediation.

Embedding the personal, intimate question of interests and wishes in a structured process is not easy and requires a great deal of flexibility and creativity. Every mediation process comes to life on its own and can only be fitted into a procedural corset to a certain extent. And as much as structure can restrict creativity and flexibility, it is still needed. Structure helps to enable a dialogue about the unspoken and sometimes unknown interests in the first place.

The importance of "structure“ for the participants in a mediation procedure

The statutory structural requirement mainly serves to roughly structure the process-related Main duties of the mediator. At the beginning, the mediation process is characterised by the fact that You as a stakeholder develop agreements together with the mediator on how they want to work and deal with each other in the future. A good mediator or mediatrix will agree with you on the principles according to which you all want to work together. You and the other parties involved can use this to measure the quality of the mediation process. This means that you are responsible for the progress of the process in a completely different way than in a courtroom, for example.

How a mediation process can work

The mediation process is managed by the mediator in consultation with you. The basic idea is for all parties involved to work together in a working alliance to define specific goals and procedures. You bring in the relevant (dispute) issues and the necessary factual information. The mediator will then work out the recognisable or presumed interests together with you. Creativity is likely to be just as useful at this stage as it is afterwards when it comes to finding a joint solution to the identified interests. In all of this, it is the mediator's task to lead the negotiation in such a way that you find a way that suits both your interests and those of your conflict partner. The solutions worked out in this way are then set out in a final agreement.

How you can recognise the structure of the mediation process

You can recognise whether a mediation process is structured by the fact that your mediator will inform you about the possible course of the process and at the same time, with your consent, involve you in its structure. So that you have a rough idea of how the mediation process works before you enter it, the most important elements of the mediation process are presented below. Due to the nature of an open, i.e. not precisely defined mediation process, these can only be elements on which there is broad agreement among mediators and conflict experts.

The phase model of the mediation process

In the meantime, a phase model has been established in science for the presentation of the mediation process. It is based on the so-called Havard negotiation stylewhich recognises four main principles:

1. mentally separating the personality of the negotiating partner from the factual problem you have with them.

2. concentration on interests

3. development of as many solution options as possible

4. evaluation of the solution options on the basis of neutral, objective criteria

These four principles can be found to a greater or lesser extent in every phase of a mediation process. Several models have emerged, each of which has a different number of phases. (For the interested reader my dissertation on the topic recommended). The following phases are elementary and should occur in every mediation process:

1. opening phase

2nd clarification phase

3rd negotiation phase

4. final phase with final agreement

In practice, the various phases often merge seamlessly into one another or are sometimes repeated, but hardly any of them have ever been superfluous. In particular, the clarification and negotiation phases often overlap within a mediation process.

The opening phase - establishing a joint working alliance

The opening phase is about informing you about the mediation process and also about protecting your interests. You need to know what you are getting into. Together with the mediator and your conflict partner, you want to find out whether the conflict is suitable for mediation at all and whether you are actually prepared to go ahead with mediation. The mediator has a fundamental duty to protect you in the initial phase: he or she will inform you of the scope of his or her duty of confidentiality, make sure that your participation and that of your conflict partner is voluntary, explain the mediation process to you and make sure that you have understood what mediation is all about. To this end, the mediator is legally obliged to § 2 Mediation Act obliged to do so. The mediator must also inform you of any issues that could compromise his or her own neutrality and independence and provide you with information about his or her professional background, training and experience, cf. § 3 Mediation Act. This phase usually ends with the conclusion of a mediation agreement (working alliance), in which at least the purpose and subject matter of the intended mediation procedure are specified.

The clarification phase - What interests exist

The purpose of the clarification phase is for you and your mediator to work out the "deep structure of the conflict" (Montada/Kals) together. This involves identifying your own interests and those of your conflict partner, as well as your common Interests. The difference to a legal problem clarification is that the focus is not on your claims and positions, but on your interests behind these positions.

This demonstrates a basic principle of mediation: you can only resolve your conflict together, whereas in legal proceedings The social conflict becomes a legal problem is created that a judge can resolve alone. But what then happens with the social conflict is another matter…

(If you would like to know more about the Differences between positions and interests Please refer to the eleventh article in the series).

The negotiation phase - How our different interests enable joint solutions

The negotiation phase is usually the centre of mediation. The focus here is on jointly searching for a creative solution and evaluating the respective options. The mediator acts as a neutral, impartial mediator. This excludes the possibility of favouring or disadvantaging any of the parties involved. On the other hand, it is not unusual for the mediator to rule out individual options and solutions or at least express reservations or suggest that they be subjected to other specialist advice. For example, tax advisors or lawyers can be consulted in order to satisfy the need for clarification. The main benefit of a lawyer mediator for the parties involved is that he or she is able to recognise the legal problems of the envisaged solutions and point out legal problems. In our opinion, however, professional conflict mediation excludes the possibility of the mediator being granted a right of review by the parties. Party lawyers should be consulted here.

The final phase - harvest time of the mediation process

In the final phase, a final agreement is drawn up. The mediator will endeavour to ensure that you enter into such an agreement in full knowledge of the facts and legal situation and that you fully understand its content. The mediator will inform you of the possibility of having the agreement reviewed by external advisors. At best, a mediator will conduct a simple farewell and gratitude ritual with you, which may, of course, be limited to a sincere handshake. In our mediation practice, it seems particularly important that the shared, rocky path is sufficiently honoured and that the things that have been learned (about yourself and your own conflict competence) are not lost. The final phase has the character of an anchor - in the harbour of social peace. At least for those who have reached it.

Compulsory attendance in mediation proceedings?

The statutory structural requirement does not oblige the mediator to hold the mediation together with all parties involved. Instead of such so-called face-to-face mediation, it is also possible to proceed by way of so-called shuttle mediation. In such shuttle mediation, the mediator shuttles back and forth between the parties involved and thus mediates between them. This is not uncommon in diplomatic matters. In disputes covered by legal expenses insurance, this option has been offered by telephone in Germany for several years and has been very successful.