Mediation appears to be more successful, more pacifying, not only legally but also socially, appears to be quicker and cheaper (than a court judgement, which is also said to expropriate the conflict) and better overall in social and individual terms, but remains unused.<\/strong><\/p>\n<\/li>\n<\/ul>\n<\/li>\n In 2008, the EU aimed for 50% of all EU civil disputes to be handled by mediation in 2018 and set out to realise this goal. In 2018, they achieved just under 1%.\u00a0<\/strong><\/p>\n<\/li>\n<\/ul>\n<\/li>\n The confidentiality requirement of the neutral third party dictates social pressure. It is just as easy to be sued by the conflict partner as it is to sue them. But submitting to the mediation process together is extremely demanding - and not at all a matter of course. This is why mediation is a rarity in the sea of conflicts.<\/strong><\/p>\n<\/li>\n<\/ul>\n<\/li>\n Anyone looking at the mediation landscape in Germany – cannot help but be confronted with paradoxes.<\/p>\n So a few words about paradoxes, the phenomenon that itself seems paradoxical. Because Paradoxes by their very nature inspire thinking<\/strong><\/em> – and yet they often have a paralysing effect on those involved in conflicts and mediations. Those involved in conflict understandably demand freedom from contradiction and clarity, even if this means that disappointment is inevitable.<\/p>\n This article is also intended to stimulate reflection on the paradoxical phenomena of mediation. And by God (it's not possible today and not here!) – a few points of mediation require clarity and demand disappointment.<\/p>\n With the Concept of paradox<\/strong> <\/em>– is borrowed from the ancient Greek „para“ = „against, against“ and „doxa“ = „opinion, view, belief“ – a contradiction, a dichotomy is taken up that cannot be resolved with conventional logic.<\/p>\n In the following, some phenomena of mediation and the mediation movement are taken up, which appear paradoxical from the perspective of mediation enthusiasts, although they seem quite understandable from another perspective.<\/p>\n As everywhere where paradoxes arise in an intellectual logic, it is important to recognise this paradox and work with it (in question mode!). Paradoxes are more suitable than almost anything else for changing the existing question and a suitable question in view<\/strong><\/em> that would escape without this paradox. Paradoxes can also be used to explain complex phenomena, at least in part. better to analyse<\/strong><\/em> or at least to differentiate the complex parts from the parts that have simply not yet been penetrated but can be penetrated in principle.<\/p>\n So – off we ’go – to the paradoxes of mediation, which we are already in the midst of.<\/p>\n<\/div> (unknown)<\/span><\/em><\/p>\n<\/blockquote>\n<\/div> As a mediator, you first have to let that melt in your mouth – and process it in your mind. This so-called first mediation paradox<\/strong><\/em> had already\u00a0 Craig A. McEwen <\/em><\/strong>and<\/em> Thomas W. Milburn<\/em><\/strong> at the beginning of the 1990s in Negotiation Journal, 1993, 23-36, with her contribution Explaining a Paradox of Mediation f<\/em>ormulated.<\/p>\n Especially in Germany, where the legislator has set the mediation principle of voluntariness extremely high in the course of the mediation movement, it seems downright grotesque that the degree of voluntariness to the<\/em> mediation should not have any significant influence on the success of the mediation. Mind you „to “ mediation, not „in the“ or „during the“<\/em> Mediation!<\/p>\n But ultimately this is exactly the case: the degree of voluntariness has hardly any influence on the probability of success. The simple idea that more voluntariness leads to more self-commitment, more solution motivation leads to more solution identification and therefore to more sustainability is simply not true. Whether mediation fails or leads to success (agreement) is not significantly dependent on the extent to which the parties to the conflict were „pressurised“ into mediation at the outset. There is little reason to believe that this has changed over the past forty years.<\/p>\n But how should we understand this paradox? The first mediation paradox means that mediation efforts do not fail or succeed simply because the parties to the conflict were pushed into mediation or not. Pressure can come from the employer as well as from colleagues or relatives at home. The pressure to mediate, the compulsion or the obligation to enter into mediation only means that more mediations will (probably) take place, but not that the (failure) success rate will decrease or increase as a result of this pressure. It simply makes no significant difference, even if the personal explanations for the failure to reach an agreement suggest otherwise.<\/p>\n However, it is of course clear that nominally more mediations are started if the comrades are helped by compulsion and urge. But compulsion and urge have no general influence on the termination of mediations.<\/p>\n Mediators who only ever start to work when all parties involved confirm their voluntary – absolutely – at the beginning may therefore be giving away the experience of this paradox.<\/p>\n Excursus 1: It is still not clear whether mandatory participation in a mediation procedure has a significant impact on the success rate, what is involved in reaching successful agreements:<\/strong> In this context, the well-known legal sociologist Klaus F. R\u00f6hl has repeatedly referred to what he calls the Natural law of mediation<\/strong> According to this, around two thirds of all mediation procedures end in an agreement and one third do not. And this always applies if the parties have come to the negotiating table or have been brought to the table, regardless of how.<\/em><\/p>\n Excursus 2: The voluntary nature of mediation does not therefore have to be discarded immediately. There may be other reasons and addressees for this legislative intention. Even if the majority (2\/3) of the conflict parties are satisfied at the end of mediation, even though they did not want mediation at the beginning, this does not directly speak in favour of a directive, paternalistic mediation policy.<\/em><\/p>\n Even if McEwen and Milburn thought that all you had to do was more or less force the disputants to the negotiating table so that they would come to an agreement voluntarily and thus force them to be happy. It can also be of value not to legislate this happiness.<\/strong><\/em> This is because rules and laws have an effect not only on the addressees who ignore them, but also on the observers who are addressed.<\/p>\n<\/div> The second mediation paradox is familiar to all mediators looking around the mediation landscape today:<\/p>\n This certainly applies to the present and the recent past of the last 30 years in Germany – measured against the hopes and wishes of all sides. Although hardly anyone says a negative word about mediation in public and despite all the good reputations and federal and European support, this remains soberly true at present: Mediation as a conflict management procedure has disappointed the hopes of both the judiciary and the mediation landscape.<\/p>\n And this is particularly devastating in view of the fact that in the past eighteen years<\/strong> (2005 – 2023), the state conflict resolution programme of the court system was shunned in a fabulous way that no one could ever have dreamed of in the last third of the 20th century. The waves of lawsuits in Germany ebbed away almost completely. The German civil courts were used less and less, even though the emergence of social conflicts had by no means diminished. Quite the opposite. (Now freshly published in May 2023: the Final report on the research project \"Research into the causes of the decline in the number of applications to the civil courts\"<\/a>, <\/em>who is completing a three-year research project).<\/p>\n Nevertheless, mediation does not appear to have improved significantly in quantitative terms during this period across all fields of application.<\/p>\n<\/div>The third paradox of mediation<\/strong><\/h3>\n
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The EU mediation paradox<\/strong><\/h3>\n
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The paradoxes of mediation in relation to confidentiality and trust<\/strong><\/h3>\n
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The paradoxes of the visibility of mediators<\/strong><\/h3>\n
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The mediation paradox and its resolution (Heck)<\/strong><\/h3>\n
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Starting points of the paradoxes that anticipate the end<\/strong><\/h2>\n
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„Let's spend more on grave care <\/span><\/em><\/strong><\/h3>\n
than for further training?“ <\/span><\/em><\/strong><\/h3>\n
1. the first paradox of mediation (McEwen\/Milburn): <\/strong><\/h2>\n
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The degree of voluntariness at the start of conflict mediation has no influence on the success of the mediation efforts.<\/strong><\/h3>\n
Mediation efforts are not dependent on the initial degree of voluntariness – what does that mean?<\/strong><\/h3>\n
2. the second paradox of mediation (R\u00f6hl):<\/strong><\/h2>\n
Mediation appears to be more successful, more pacifying, not only legally but also socially, <\/strong><\/h3>\n
appears to be faster and cheaper (than the court judgement, which is also expropriatory) and <\/strong><\/h3>\n
The potential to be more social and individually better overall remains unutilised.<\/strong><\/h3>\n