Why modern mediation is emerging now!

3 Theses on the emergence of alternative dispute resolution

25 Basics of mediation (21)

Introduction

The question may be asked: Why does modern mediation exist? This implies several theses!

• Thesis no. 1 – There is a modern form of mediation that is socially relevant.
• Thesis no. 2 – Modern mediation differs significantly from its historical predecessors and philosophical borrowings.
• Thesis no. 3 – The VUCA world with its megatrends of individualisation and connectivity requires a change in conflict management, to which - not only, but also - mediation corresponds.

Lesen Sie zur VUKA-Welt meinen Blog-Beitrag hier.

One after the other:

To Theses no. 1 and 2 should be referred to the Blog post on the history of modern mediation in which it is explained that, despite all its historical precursors, mediation cannot be said to have grown in a linear fashion. Mediation today has different tasks and objectives than conciliation and mediation efforts in the past. Thanks to the state legal system (and other civilising factors), it is no longer primarily about preventing violence, but about dealing with emerging conflicts at a time when creative and innovative „ solutions by the parties involved“ are still possible and likely. The modern mediation movement is less an attempt to react to the problem of a fantasised brutalisation of our society than an attempt to act appropriately in an almost non-violent society. More on this later! Modern mediation emphasises the strategic element, to enable the conflict to be resolved from the future, so through transformation and learning processes to work.

So - why is modern mediation emerging now?

Did you already know? The number of lawsuits filed with the German courts has been falling dramatically for over ten years in all areas of law (civil, criminal, labour, financial and administrative courts, even in the social courts). Further research will certainly bring some surprises to the popular opinion on the „German lawsuit mania“ and „mediation wave“! Use as an introduction this link, which reports on a symposium at the MLU Halle on the topic. We will soon be in our blog a detailed article about this publish! In any case, it is already clear that the number of cases involving alternative dispute resolution (mediation) has not even come close to matching the decline in the number of lawsuits filed. Mediation does not compensate for the decline in the number of cases filed.

Question: How can the emergence of modern mediation be explained?

The decline in the number of lawsuits filed at least allows the hypothesis that Court disputes are not (or no longer) the appropriate mode for the majority of disputes which until a few years ago were still taken to court. Of course, this conclusion is based on the assumption that disputes as such have not declined. It seems more likely that in the economic and cultural transformation of the early 21st century (digital transformation, investment capitalism, etc.), the potential for disputes has actually increased in quantitative terms - but is being dealt with in a different way. (If one assumes that conflicts only arise, but then in any case, when people come together, interact with each other and want to create something together – even if it is only to live peacefully next to each other, then with population growth alone it must be assumed that the potential for conflict will increase (exponentially?!) as a result. And yet the result will be more peaceful than in earlier times).

The emergence of mediation and other forms of alternative dispute resolution is probably due in particular to two megatrends of our time: the Individualisationwhich has been progressing for centuries, as well as with the Connectivity, which is something other than collectivity and has only gained momentum historically with digitalisation. A third element is crucial, a paradox of legally differentiated societies: Legal decisions are becoming relatively riskier and therefore absolutely uncertain.

System-theoretical view of the legal system

It is worth getting a picture of mediation by looking at the state legal system that forms the context of mediation. Niklas Luhmann, Founder of sociological systems theory and something like the Honoré de Balzac of the history of sociologyhas rightly stated in his system-theoretical considerations that the Legal system not a system of ideas is. The legal system does not revolve around the idea of justice. Rather, it is a Oobject system. It's not about justice, but about communication, because justice becomes not communicated, but is exclusively communication, is binary coded in right/wrong. There are no communicating actors in sociological systems theory. Any communication that is coded in binary right/wrong belongs to the functional subsystem of law.

But why this complicated systematisation?

Why are not people the elements of the system (who then communicate right), but the communication itself the elements of the system? It is true that these trains of thought are not usual and normal, but are highly abstract. They are also only briefly and crisply outlined here and cannot be presented in detail. But that will have to do. At least as an appetiser. What is important for the present context is that they made the following insights into the law possible:

• The The function of law is to stabilise society – here by stabilising normative behavioural expectations. (This explains why law always has a conservative streak and why lawyers often have conservative views).
• Law is therefore not first and foremost the means of resolving social conflictsbut first and foremost the Means of generating social conflict: a support for impositions, demands, rejections, even and especially where resistance is expected.
• These modes of operation are evident in practice: Law encourages conflict, invites members of society to say 'no' communicatively, where they can defend their rights or even just assume they have to. A functioning legal system encourages those involved to assert their rights at an early stage, as early action means faster processing. Conflicts are verbalised in the language of law ("right/wrong")instead of being carried out in the language of violence. On the other hand, the law absorbs conflicts, by removing them from the physical fight and leading them to a more peaceful decision. How this decision is brought about in legal practice can be seen in the Legal proceedings at the centre of conflict resolution occur. It must be legitimate and have a legitimising effect in order to gain recognition and stabilisation. This is achieved through participation, in that the process Parties to the conflict become parties to the proceedings makes them do it, to participate in the regulation of the conflict, to submit proposals, to present their points of view, to get involved - without knowing how the case will end. If the proceedings are then decided (in the court of appeal), the parties involved have already "invested so much" that they Part of the system and regularly no longer (violently) rebel against it.

Both modes of operation of the law, the encouraging and the absorbing, fulfil functions for society as a whole and by no means antipodean-state functions. They allow structurally inferior members of society to formulate objections and lead to the expansion of the rights of the previously "rightless" to "recognised rights" - within the framework and through the procedures of the legal system. Steven Pinker, for example, rightly emphasised in „Violence. A New History of Humanity“ that human rights were only extended to slaves, women and children in right-orientated conflicts against the established members of society. It was precisely this right, which was not granted to the desiring not The basis of the argumentation! This is significant, because law has this peculiarity that no one can act against it, but must always claim to be on its side.

Law binds everyone, both those who are not (yet) entitled to it and those who believe that they alone are entitled to it.

A paradox now becomes significant in this context: the Conflict resolution becomes more complex in a non-violent legal system and more uncertain, because there are more possibilities than in systems that are less permeated by law. There, more is at stake, if not everything, life or death. In legally free or legally tainted spaces, the risk of conflict is absolute, even if it does not always materialise. In legally differentiated spaces that are permeated by law, there are relative risks that are guaranteed to materialise but do not have such a devastating effect.

Consequence:

Just as the law prevents violent conflict resolution and on the one hand encourages the parties to address their conflicts (legally), to demand their rights and no longer put up with everything and thus on the other hand removes conflicts from the violent mode, mediation also encourages the parties involved in the conflict not to establish a legally coded mode of communication in the first place, but to remain immediately in the mode of social communication (while maintaining and unfolding the complexity of the social relationship), albeit with the help of a third party.

If you follow this, then mediation is a solution to a problem that the law has created in solving its problems. But what problem is this if things are more non-violent in a legally differentiated society? The answer can be found in the changed contextual conditions of the law, the changed economic and working world in the course of globalisation and digitalisation in the post-modern era of the 21st century. The times in which state law has developed have simply changed. The mode of conflict resolution through the intervention of a judging third party was helpful, compelling and ingenious in the face of violent conflict that no longer knew a winner.

Legal historians refer to the 12th century as the „century of law“!

Individualisation

Isolation? Liberation! Uncertainty!

At the beginning of the 21st century, (post-)modernism led the trend towards Individualisation to a preliminary climax (recommended reading: van der Loo/von Reijen („Modernisation. Project and Paradox“)). The "growing importance of the individual, who detaches himself from the collectivity of his immediate surroundings" increases infinitely and is ultimately a consequence of humanism, which has elevated man's own inner world to the highest yardstick for (moral) decisions. For humanists, what we think and feel is the only reliable yardstick. We ask everyone what they think about politics. The customer is king in business anyway (and the consumer in court), in matters of love we have to ask our own heart or, alternatively, our gut. In any case, it is no longer the Bible or prayer that helps us find the answer, but at best the hope that we are making the right choice. Whatever one may think of this changing of the guard of the monotheists by the humanists in moral questions, the tendency towards individualisation began with the scientific revolutions long before the 19th and 20th centuries. And it began with the detachment from corporative forms and family-peasant ties. The city is to blame for everything! See Sodom and Gomorrah.

In line with existentialist philosophy (Sartre, Kierkegaard, Jaspers and others), humanistic psychology already emphasised the autonomy and self-legality of the individual human being thrown into the world, and the human individual into the rank of the highest good not only of mankind. This seemed logical if, as Kant demanded, people were to use their intellect. This was entirely in line with the struggles for individual freedom, equality and fraternity and the corresponding Enlightenment tendencies to follow oneself and thus one's future self and not unchecked foreign powers. It is no coincidence that these philosophical and humanistic foundations are the ideological midwives of modern mediation. They form the frame of reference for modern mediation.

Rarely in (social) history does something happen for no reason and out of the blue. And so no one got up early in the morning to make themselves alone and individualised. Because that is not what individualisation is about; rather, it is about doubting whether life can be done differently and having the energy to answer the question in a practical way: Who else can we be? Achieve the impossible?

It was precisely this bursting Culture of doubt coupled with the belief that the future will be better if I invest now (capitalism!), that the operation of the intellect leads to self-questioning and matures into self-awareness through the labours of self-awareness. In terms of intellectual history, it establishes the Affluent society of the 20th century as well as - and this is not only paradoxical, but downright strikingly evident the culture of change and choice. Since then, the future is no longer what it used to be!

We have to choose in order to be free and change in order to experience freedom. We pay the price of freedom with the compulsion to doubt and to invest.

To make a choice and thus deselect countless alternatives. The liberated, individualised human being must not only constantly choose anew and practise change, but above all deselect and renounce. Who wouldn't have doubts about that? But salvation seems near…

Connectivity

Attachment? Connectedness! Prisoner!

Every image is also a prison.

The other megatrend relevant to mediation is the increasing experience of Connectivity that is not collectivity. Those who make fun of the fact that people on Facebook have „friends“ that they have never seen and probably never will see fail to recognise this. Connectivity is different from collectivity. The salient feature of connectivity is the emerging infosphere as the Italian philosopher Floridi (No. 4 in the blog post)  has described: There is no longer any difference between offline and online, the separation of life and the web, of reality and virtuality. The two merge into ONLIFE, can no longer be separated and influence each other. We will be the last to recognise reality without digital connectivity, without having any real idea of what collectivity once meant. We are the transition runners, the bridge builders, the ones in between.

Connectivity is the consequence of economic globalisation, which connects all regions and economies of the world and brings them into tangible, always-on, always-visible relationships. Connectivity can be seen in the further expansion of our technological communication tools, from telegraph poles to the Internet, from receiving global information to sending it from anywhere at any time.

Conflicts in such a networked world of self-determined and self-responsible people are no longer to be understood as a flaw and system error, but rather as a matter of course and for our own sake as belonging to it. If you want to keep your conflicts outside, you really have a problem! Conflicts and signs of conflict are probably our most important measuring instruments for the next upcoming decision. They demand time spaces in which people can reflect and make decisions together. Courtrooms are not suitable for this.

If you don't want to drown in the flood zone, you have to learn to swim:  Instead, we need a space to breathe that is legally protected. This is where we are able to process personal responsibility and solidarity appropriately.

In a connected world of self-determined individuals, conflicts are not a flaw in the system (society, nature, world), but are natural and necessary.

The basis of this article has been published with footnotes. Footnotes have been published in: 
Mediation as a branch of science. In the field of tension between expertise and interdisciplinarity,
edited by K. Kriegel-Schmidt, Wiesbaden 2017, pp. 143-159.