{"id":3182,"date":"2019-07-05T16:01:55","date_gmt":"2019-07-05T14:01:55","guid":{"rendered":"https:\/\/inkovema.de\/?p=3182"},"modified":"2020-09-21T07:04:46","modified_gmt":"2020-09-21T05:04:46","slug":"value-drivers-and-stumbling-blocks-of-mediation","status":"publish","type":"post","link":"https:\/\/inkovema.de\/en\/blog\/value-drivers-and-stumbling-blocks-of-mediation\/","title":{"rendered":"Roundup-Post 2019: Value creators and stumbling blocks of mediation"},"content":{"rendered":"

Value creators and stumbling blocks
\nof mediation<\/h1>\n

INKOVEMA Roundup 2019 (#4)<\/h1>\n
\n<\/div><\/div><\/div>

Since the federal government's evaluation report (autumn 2017), it has been clear that mediation has not yet lived up to the hype and hope. In practice, it is – hardly in demand given the volume of conflict –. Mediators are by no means working to capacity. But a \"bad word\" about mediation is hardly ever uttered.<\/p>\n

As an economic product, mediation as a whole is a \"slow seller“, even though Germans have been taking (going) to court extremely less for years. But where do they go then? The few areas of application (court of arbitration, legal expenses insurance, consumer dispute resolution lawsetz – and in comparison to the volume of conflict in the isolated fields of application that are handled by private mediators) resemble the dark backyards of large cities. Difficult to find, even if they are sometimes charming, liveable and feel good far away from the hustle and bustle of everyday life.<\/p>\n

That's why we once again asked practitioners and academics, university lecturers and tried-and-tested mediators about the three value creators and stumbling blocks of mediation. Here are their answers.\u00a0<\/p>\n<\/div><\/div><\/div><\/div><\/div>

1st Prof Dr
\nCaroline Meller-Hannich<\/h2>\n

Halle (Saale)
\n<\/em><\/h4>\n
\n
Chair of Civil Law,
\nCivil procedural law &
\nCommercial law,
\nMartin Luther University Halle-Wittenberg<\/h5>\n

Website:
\nwww.jura.uni-halle.de<\/a><\/p>\n

<\/h6>\n<\/div><\/div><\/div>
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\n

It is possible that the value creators and stumbling blocks are at least partially identical.<\/span><\/p>\n


\nWhat are the 3 value creators that make mediation unique?<\/strong><\/span><\/p>\n

1.<\/strong> Take the time to create transparency, a mindful process and to penetrate the conflict.
\n<\/span><\/p>\n

2.<\/strong>\u00a0Structure and procedure (respectful personal \"setting\") enable the mediants to meet as equals and find solutions independently. <\/span><\/p>\n

3.<\/strong> Finding a joint solution to the conflicts behind the claims instead of fighting for justice in narrowly defined disputes with a loser and a winner.
\n<\/span><\/p>\n


\nWhat are the 3 stumbling blocks that make it hardly in demand?<\/strong><\/span><\/p>\n

1.<\/strong> Time-consuming, expensive, small-step process
\n<\/span><\/p>\n

2.<\/strong>\u00a0A procedure for structural imbalances? In situations with mandatory law? \u00a0\u00a0 <\/span><\/p>\n

3.<\/strong> No enforcement order as end of proceedings -> court proceedings can\/must follow if there is a dispute about the outcome of the proceedings or refusal of fulfilment. Can the results of the confidential mediation proceedings be utilised?
\n<\/span><\/p>\n

\n<\/div><\/div><\/div><\/div><\/div>

2. prof.
\nDr J\u00f6rg Risse, LL.M<\/h2>\n

Frankfurt
\n<\/em><\/h4>\n
\n
Frankfurt partner of Baker & McKenzie,
\ninternational arbitration proceedings
\nespecially in the area of company acquisitions &
\nmajor technical projects;
\nAccording to Who’s Who Legal 2019, he is one of
\nthe seven best mediators
\nin Germany<\/h5>\n
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\nWhat are the value creators that make mediation unique?<\/strong><\/span><\/span><\/p>\n

1.<\/strong> Parties to a legal dispute underestimate the emotional cost of litigation – and they overestimate their chances of success for psychological reasons. A well-managed mediation can eliminate these misjudgements and thus create value for the parties: A quick agreement with little effort is better than a marathon trial. There is simple proof of this: the settlement rate in high-volume litigation and arbitration proceedings is very high - over 50 %, depending on the study. However, the parties usually only settle at the higher regional court stage at a time when they have already invested a lot of money and nerves in the conflict. As the initial dates of the conflict have not changed, this settlement would have been possible much earlier (usually years earlier). And this is exactly what mediation can achieve.<\/span><\/p>\n

2.<\/strong> Distortions of perception and other psychological factors favour an irrational approach to conflicts. A good mediator brings objectivity to the discussion, for example by using the technique of process risk analysis. By visualising the conflict in this way, the parties often understand the dispute much better - and they also see = understand which (often important) factors a judge cannot and must not take into account when making a decision.<\/span><\/p>\n


\nWhat are the stumbling blocks that mean it is hardly in demand?<\/strong><\/span><\/p>\n

1.<\/strong> Parties - especially in commercial disputes between companies - shy away from taking responsibility. In mediation, however, one party must take responsibility for the decision \"in favour of settlement\" and also justify this decision internally. It is often easier for the people involved to delegate responsibility to a court and put it on the back burner. And by the time the unfavourable court decision is finalised years later, the person involved has usually long since moved on to another area (or even company) and is no longer associated with the negative outcome of the proceedings.<\/span><\/p>\n

2.<\/strong> The \"win-win\" promise is not accepted by the mediation movement - and it is usually disappointed in practice. Business disputes are regularly \"only\" about money and the amount of money is split in the end. This is painful for both sides - the advantage lies in the quick, cost-effective solution. However, parties to a dispute can rarely really understand the latter advantage - after all, they don't know how the conflict would have ended in lengthy court proceedings. This is why the advantages of mediation are so poorly recognised.
\n<\/span><\/p>\n

\n<\/div><\/div><\/div><\/div><\/div>

3 Dr J\u00fcrgen Klowait<\/h2>\n

D\u00fcsseldorf
\n<\/em><\/h4>\n
\n
Lawyer, Interim Manager,
\nBusiness mediator & business coach,
\nCo-founder of the Round Table Mediation &
\nConflict management in the German economy<\/h5>\n

Website:
\nwww.mediate-online.de<\/a><\/p>\n

<\/h6>\n<\/div><\/div><\/div>
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\nWhat are the 3 value creators that make mediation unique?<\/strong><\/span><\/span><\/p>\n

1.<\/strong> Only mediation offers the parties the opportunity to resolve their conflict in an interest-based and self-determined manner with the professional support of a neutral third party.
\n<\/span><\/p>\n

2.<\/strong> Business mediation in particular reduces internal and external conflict and procedural costs and makes a measurable contribution to the company's added value.\u00a0\u00a0\u00a0\u00a0 <\/span><\/p>\n

3.<\/strong> No other conflict resolution method offers comparable potential for \"de-interrupting\" the communication between the parties, strengthening mutual understanding of the other party's point of view and motives and thus leading to a rapid and sustainable resolution of factual and relationship conflicts.
\n<\/span><\/p>\n


\nWhat are the 3 stumbling blocks that make it hardly in demand?<\/strong><\/span><\/p>\n

1.<\/strong> Too often, there is still a lack of knowledge about the process and the specific procedure of mediation - and thus, psychologically speaking, a reluctance to get involved in \"something unknown\".
\n<\/span><\/p>\n

2.<\/strong> Overwhelming scepticism and reservations among lawyers - especially in the legal profession - whose training is still geared towards conducting contentious court proceedings. A lack of knowledge of and experience with ADR proceedings - coupled with concerns about economic losses compared to conducting court proceedings - leads large sections of the legal profession neither to inform clients about ADR proceedings nor to advise them to do so, even where their implementation offers clear advantages for clients.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/span><\/p>\n

3.<\/strong> The fact that knowledge of mediation and other ADR procedures is not mandatory in legal training prevents even the profession, which embodies the social \"conflict contact point\" per se, from being able to provide qualified advice on the question - rarely asked and even more rarely answered in an impartial and informed manner - \"Which procedure is best suited to the conflict at hand?\"
\n<\/span><\/p>\n

\n<\/div><\/div><\/div><\/div><\/div>

4 Jutta Kreyenberg<\/h2>\n

Frankenthal
\n<\/em><\/h4>\n
\n
Graduate psychologist, trainer,
\nCounsellor, coach,
\nTeaching trainer & supervisor
\nfor transactional analysis
\nfor the area of organisation<\/h5>\n

Website:
\nwww.coachingsupervision.de<\/a><\/p>\n

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\"Jutta<\/span><\/mask><\/g><\/g><\/clippath><\/filter><\/defs><\/svg><\/div><\/div><\/div><\/div><\/div><\/div>
\n


\nWhat are the 3 value creators that make mediation unique?<\/span><\/strong><\/span><\/span><\/p>\n

In my view, the three most important value creators of mediation are<\/span><\/p>\n

1.<\/strong>\u00a0The neutral person, someone from outside who has no interests in the game, is always welcomed.<\/span><\/p>\n

2.<\/strong>\u00a0Mediation not only increases the probability of a factual solution but also trains and develops social skills. In this respect, mediation is live training in conflict management and thus the ability to deal with future conflicts independently.<\/span><\/p>\n

3.<\/strong>\u00a0Last but not least, mediation often saves considerable costs (indirect, e.g. through transaction costs, non-achievement of objectives and direct, e.g. through court costs)<\/span><\/p>\n


\nWhat are the 3 stumbling blocks that make it hardly in demand?<\/strong><\/span><\/p>\n

I see stumbling blocks primarily in:<\/span><\/p>\n

1.<\/strong>\u00a0The parties involved often have hidden political motives. If these are not discovered at some point or put to one side, this can make the process considerably more expensive or prevent it.<\/span><\/p>\n

2.<\/strong>\u00a0As a rule, those involved believe for too long that they can resolve the conflict on their own – using the usual means of fighting or remaining silent.<\/span><\/p>\n

3.<\/strong>\u00a0Overall, mediation does not have a „friendly“ image – here it is more about „illness“ and not about personnel development. On the one hand, conflicts are not socially acceptable, on the other hand, the proximity to the courts deters many from mediation. Avoidance is often the path of choice here.<\/span><\/p>\n

\n<\/div><\/div><\/div><\/div><\/div>

5. dr.
\nStephan Proksch, MAS<\/h2>\n

Vienna
\n<\/em><\/h4>\n
\n
Independent business mediator &
\nOrganisational consultant,
\nTrainer, author
\nGroup dynamics & systemic counselling<\/h5>\n

Website:
\nwww.trialogis.at<\/a><\/p>\n

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\nWhat are the 3 value creators that make mediation unique?<\/span><\/strong><\/span><\/span><\/p>\n

1.<\/strong> Needs-based, self-responsible solutions
\n<\/span><\/p>\n

In mediation, we can work with our mediants to find solutions that correspond to their actual interests and needs and that they develop on their own responsibility without having to rely on the decision of a superior or a judge.<\/span><\/p>\n

2.<\/strong> Short-term solutions
\n<\/span><\/p>\n

A mediation process leads to viable solutions much more quickly than court proceedings or putting the conflict on the back burner. In addition, the solutions can be worked out in a confidential setting, which avoids a public dispute.<\/span><\/p>\n

3.<\/strong> Maintaining the relationship
\n<\/span><\/p>\n

A mediation process makes it possible to maintain or even improve a private relationship (e.g. in the event of separation and divorce) or a business relationship. A clean separation is also better in the long term than a \"war of the roses\".<\/span><\/p>\n


\nWhat are the 3 stumbling blocks that make it hardly in demand?<\/strong><\/span><\/p>\n

1.<\/strong> Winning \/ wanting to assert yourself
\n<\/span><\/p>\n

People who are in a conflict situation often want to \"prove\" that they are in the right and look for procedures that promise them this. Admitting your own mistakes is more difficult than blaming the other person. Mediation therefore requires a self-reflective mindset.<\/span><\/p>\n

2.<\/strong> Fear of conflict escalation<\/span><\/p>\n

Many people I have dealt with are simply afraid of any encounter with conflict. This is more than understandable, as there is something inherently threatening about conflict. The more the conflict escalates, the more difficult it is to recognise the opportunity in the conflict. \u00a0\u00a0 <\/span><\/p>\n

3.<\/strong> Lack of understanding \/ knowledge of the method
\n<\/span><\/p>\n

I often hear that people can't imagine how mediation can work. Even people who learn the basics of mediation - for example at a university of applied sciences - are not sure whether and how it actually works in practice.<\/span><\/p>\n

\n<\/div><\/div><\/div><\/div><\/div>

6 Nicole Vogelsberger<\/h2>\n

D\u00fcsseldorf
\n<\/em><\/h4>\n
\n
Mediator,
\nHead of department &
\nIn-house lawyer
\nat ARAG SE<\/h5>\n

Website:
\nwww.ARAG-Streitschlichter.de<\/a><\/p>\n

<\/h6>\n<\/div><\/div><\/div>
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\nWhat are the value creators that make mediation unique?<\/span><\/strong><\/span><\/span><\/p>\n

The mere fact that conflicting parties deal not only with their own needs but also with the needs of the other side and also reflect on their personal conflict behaviour creates an often underestimated added value. In addition to the shorter duration of the process, the possibility of a holistic solution is the greatest added value of mediation. In other procedures, the resolution of a conflict is often reduced to the basis of the claim and the corresponding legal consequences. Mediation, on the other hand, offers a sustainable resolution of the conflict - by taking into account the past, present and, above all, the future. The solution is not imposed by a third party, overriding the interests and needs of the parties involved. Rather, the mediating parties work out the solution to their conflict independently and under their own responsibility. Creativity is only limited by legal requirements. No other procedure therefore leads to such highly individualised and satisfactory solutions.<\/span><\/p>\n


\nWhat are the stumbling blocks that mean it is hardly in demand?<\/strong><\/span><\/p>\n

Unfortunately, mediation is still unknown for many life – and conflict situations in the population. The same applies to the process and the possibilities and opportunities of mediation. It is therefore not yet a demand product, but a supply product. The very strong legal lobby is still largely sceptical about mediation or even equates it with legal settlement negotiations. Courts also still too rarely offer mediation to the parties in conflict. This is also due to various statutory mandatory or optional provisions - such as the \u00a7\u00a7 253 III p. 1, 278 a ZPO<\/em><\/strong> <\/a>- change much. Coupled with the lack of political attention paid to this topic, it is and remains very difficult to significantly increase the demand for mediation as an attractive alternative conflict resolution option.<\/span><\/p>\n

\n<\/div>