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

25 Basics of mediation (8)

In 2016, Dominik Wahlig and Dr Sascha Weigel gave the radio station Detector.fm an interview about the role of the third party (in the VW diesel scandal).

In the last blog post (Basic ideas of mediation, No.7) I have started to Model of conflict management levels to introduce the model. I will continue to pursue this plan by talking about the so-called conflict thirds, but I will only present the model in its entirety in the next article. I would still like to spend some time (with you) in one part of the model and explore this area up close. In this way, I hope to be able to present the complexity of this topic in an appropriate way.

I have already described the overall concept elsewhere (-> more here). However, over the last five years, many practical experiences have been added that have sharpened it in detail and made some aspects appear less important.

So today I am going to Guiding principles of mediation again in order to Differences and similarities of conflict third parties to explain. Third parties in the conflict are those roles (conflict figures) that actively participate in the conflict because they are involved and consciously join in without becoming participants themselves. Conflict third parties emerge when those directly involved would otherwise slide into an escalation that threatens their very existence.

Conflicting third parties have Promoting and challenging characterso that a Socialisation of the Dealing with conflict successfully. You however, are always an imposition for the parties.

Judges, arbitrators, mediators - the third party in the conflict

Third parties in the conflict are…

– the judge, 

– the conciliator and

– the mediator. 

Their processing levels are embedded in levels in which the parties involved process their conflict independently. In this respect, the third parties in their function as facilitators and challengers Bridge character.

Delegation in conflict management

Delegation takes place with judges and arbitrators. In the case of judges, the conflict is by the third party solved, with conciliators thanks to the third party. What this means in concrete terms will become clear shortly.

The judge's task is to resolve the conflict with decision-making power. That of the conciliator to submit a proposal for a decision. While the judge assesses and makes a judgement about what is right and what is not with original decision-making power that is not derived from the parties, the conciliator makes a non-binding proposal about what he or she believes is right and what is not. right would be. The parties to the conflict can follow this proposed decision or not. Judgements, on the other hand, must be followed. They are binding and can also be enforced. Fortunately, acceptance of the judge's decision by the parties involved is not important. This good fortune applies above all to the bystanders, because judgements are ultimately made in the name of the people, in the name of their social peace and security. In individual cases, this goal may be missed, but this does not invalidate the basic idea.

What judges' and arbitrators' awards have in common is that they are issued according to prescribed (procedural) rules and find a solution based on non-party standards.

Judges

Judges solve (legal) problems that arise from social conflicts. Structurally, a judge does not solve the social conflict of the parties involved, but the problem of society as a whole that this conflict threatens to represent.

This means that judges do not act on behalf of the parties involved (such as mediators), but rather on behalf of the bystanders or the people (democracy). The judge extracts what is legally relevant from the two conflict perspectives and makes a decision according to legal standards. An ingenious approach to prevent social violence among the parties involved. Of course, the whole thing is only successful if the parties involved voluntarily (or are forced to) comply with the judge's decision. This is why the judge, as a representative of the state, has a monopoly on the use of force. His judgement can also be enforced by force.

A judge acts on behalf of an authority to which the parties are subject. Their willingness to accept the judgement is not decisive for its effectiveness. The parties must comply with the judgement. Inner acceptance certainly helps. Nevertheless, the judgement is made in favour of society as a whole, which wants to protect itself from escalating violence. That is why delegation to a judge is an achievement of socialising social associations.

The above applies not only to state judges, but to any role in a conflict-related delegation. Also Parents, who decide sibling disputes are based on family-wide standards. Likewise Executiveswho are confronted with conflicts in their teams that threaten to escalate will take on conflict-related judge functions. They are either asked directly to make a decision or do so without waiting for a request. Their authority to issue instructions is functionally equivalent to the judge's authority to pass judgement. Whether this is a wise approach for managers does not need to be conclusively assessed here. The right to issue instructions can always be used sensibly.

Here I would like to draw attention to a characteristic of judges on the basis of state jurisdiction: Judges can be called upon by a party to the conflict or by the state's lawyers (even against the will of the parties to the conflict!). In both cases, the issue is that the party or parties have violated state laws and thus violated the Value judgements of society as a whole. That is the judge's standard. This also applies if one of the parties claims that the opposing party has breached a private agreement. The standard of the parties involved (content of the contract) applies here. However, the fact that the judge nevertheless decides on this has to do with the judgement of society as a whole that private agreements must be adhered to at all. This binding nature promises security and order.

This makes it clear that it is not the person of the judge that is decisive, but his or her (legal) status. Evaluation standard. Law and judgement are – strictly speaking – independent of the judge. Conceptually, the judge's decision is already determined even before the judge is called upon. The consequence of his approach is that the conflict communication relevant to the decision is coded in binary terms - right/wrong or right/wrong. The only thing that matters is what is right, which of course also justifies what is wrong. Right is inconceivable without wrong. That is the price: a radical reduction of social, interpersonal complexity to binary coding! But what would be the alternative? The judge solution is supposed to prevent violence and destruction, offer social security, ensure order and thus block the (return) step to the level of social struggle. Judge same the existing unevenness from and smooth out the distortions. These Reduction and creation work At the same time, it enables the third party to transform a social conflict into a problem that it can solve in order to secure social peace in the name of society as a whole.

This means that the judge must also take the parties alienate. By coding their communication in binary terms, so that If there is no violence as an undesirable form of communication and the third party can decide at all, "alienation phenomena" will nevertheless occur sooner or later. Personal and social content is simply left out, it does not find its way into the judicial standard. This explains some of the origins of Resentment towards judges and the judicial process. However, with sufficient distance, the contribution made by the parties through the delegation remains clearly recognisable.

Delegation has a transitional character. If this is lost sight of, conflict management stagnates and stabilises, which manifests itself in disappointment, helplessness and despair, but also in annoyance, anger and escalating delegation(!). However, there seems to be much to suggest that the legal system itself, through its further differentiation, ensures that the The parties to the conflict consider the delegation to be problematic and try to escape it. The solution, which was initially helpful, turns into a problem. But the parties have actually evolved. Their conflict solutions must therefore also evolve. The next step is not to delegate to a judge, but to a mediator.

Arbitrators

Conciliators do not decide conflicts. They offer solutions, make suggestions and show the middle ground between the parties. In this sense, they mediate and, on request, state what they consider to be a compromise. It is therefore an advantage for them, unlike judges and mediators, to have expertise in the subject matter concerned. This is not mandatory, but it is a good point of contact with the parties, whom they do not have to deal with in a decision-making capacity (like judges), nor do they have to determine their conflict-related in-depth structures (like mediators).

If the delegation to the judge points the way out of the fight, the conciliator points the way from the judge to the mediator. 

Unlike a judge, the conciliator does not have the authority to bind the parties to his or her solution. Conciliators have no decision-making power. Rather, conciliators propose solutions that the parties can accept or reject. The arbitrator's decision is not a judgement, but merely advice. Therefore, in a conciliation procedure, injustice and guilt are not established (=distributed), but an acceptable solution is sought.

In contrast to judges, conciliators are always jointly selected and chosen, not appointed. On the other hand, conciliation is by no means mediation. And a Arbitrator is not a mediator. He ultimately "lacks" the idea of transformation, which emerges from the perspective that the Conflict a learning process is.

In the practice of conflict management, elements of judge, arbitrator and mediator can of course mix and a judge or arbitrator can take on the functions of a mediator or vice versa. This should certainly happen, but for the theoretical conception and understanding of what happens in practice, the proposed differentiation seems helpful to me.

Mediators and mediators

After the parties to the conflict have learnt, or have had to learn, to accept the judge's decisive ruling, to voluntarily submit to a mediation procedure and to agree on proposed solutions, the next step is the Mediation therefore, with the help of a third party solution-orientated Verbal negotiations on all relevant aspects of their conflict to lead.

With the mediator, a third party is installed in the conflict who helps to communicate in a non-violent and equal manner and not to fall into (verbal) antagonism. 

Important tasks of the joint third party are 

– Confidence in the resolvability of the conflict

– Confidence in the ability of those involved to find solutions,

– Create calm and balance, 

– assume procedural sovereignty, 

– initiate a search process for the values and standards that unite us.

Mediators (do not instruct or instruct those involved in the conflict. them. Rather they reduce the complexity of the conflict relationship by assuming procedural sovereignty without coding the communication in binary terms (as with delegation to the judge). In this way, they prevent oversimplification ("It's all a question of "right/wrong" or "pay/not pay", "true/untrue", "nice/not nice", etc.). The mediators' offer of mediation allows them to take a closer look at the content of the dispute. Complexity of interpersonal coordination issues open so that they can be decided jointly by the parties involved in the course of the proceedings.

In this sense, mediators enable the parties to the conflict to Learning from a modelHow the mediator approaches the parties and the issues of the conflict and which conflict philosophy, which image of humanity he embodies with his specific way of proceeding, also acts as model behaviour for the mediants. This is a tightrope walk in which the moral moment is always around the corner (or through the ethics of the mediator). Mediation peeps through).

Third parties in conflict - overview of the judge, arbitrator and mediator