Mediation – Working Out Agreements in Conflict Situations

Mediation is a form of out-of-court dispute resolution. Conflicts are resolved without a court or a court decision being necessary. This fact already shows a first decisive advantage of mediation compared to other forms of dispute resolution: The process can always take place with the exclusion of the public.

The term “mediation” comes from the Latin words “medius” (being in the middle) and “mediator” (the intermediary). Mediation is thus a tool with which, through the involvement of a neutral third party (the “mediator”), the reconciliation of two opposing positions/interests takes place. The mediator has no means of pressure and depends on the voluntary participation of both parties in the mediation process. Furthermore, they have no decision-making authority but develop creative solutions together with the negotiating parties. To ensure a neutral consideration of the positions, it should be noted that the mediator derives no benefits from the outcome of the negotiation – regardless of what results it brings. In order for negotiation assistance to be provided at all, the participants must break down the conflict from the relationship level to the factual level. A popular model for this is the Harvard method. Here, a strict distinction is made between positions and interests of the participants, and by developing decision options, an attempt is made to create a win-win situation with maximum mutual benefit.

It should be noted that the mediator’s neutrality by no means means that they have no influence on the negotiation. On one hand, they can shape the beginning and course of the mediation process. On the other hand, they have influence over the topics to be discussed and can point out facts, norms, and rules during the negotiation. Additionally, they can rephrase positions and statements in their own words at any time and submit their own settlement proposals.

The most important differences between mediation and court proceedings, besides the initially mentioned exclusion of the public, are the active and responsible development of an interest-based solution by the parties. The decision about the outcome or continuation of the negotiation thus remains solely with the parties. Furthermore, the mediation process is time-saving compared to court proceedings and thus more cost-effective.

Alternative out-of-court procedures besides mediation

• Moderation: A neutral third party (moderator) has no influence on the parties or the process. They merely guide the course of the procedure and ensure an objective and orderly process. Moderation is useful, for example, when one party has a leading role in the company (negotiation between department head and employee).
• Settlement: According to §779 BGB, this is a contract under the law of obligations through which a dispute between two parties over a legal relationship or the realization of a claim is eliminated through mutual concession. Settlement negotiations and their conclusion can also take place during ongoing proceedings without court involvement. Key difference from mediation: In out-of-court settlement, lawyers negotiate as representatives of interests. In court settlement, the judge often proposes a compromise based on the factual and legal situation.
• Conciliation: In conciliation, the negotiation is conducted with the support of a neutral arbitrator. After they know the individual positions and facts, they propose their own solution. Even though they have no decision-making power like the mediator, they are at least authorized to make an independent factual decision.
• Arbitration proceedings: Here, the parties submit to the arbitration award before the proceedings begin, which is determined by the arbitrator at the end of the negotiations.

Advantages of the mediation process

After considering other out-of-court and court proceedings, the mediation process has several advantages in summary:

• Voluntariness of the participants
• High implementation rate of results
• Time and cost savings
• Negotiation with exclusion of the public
• Flexible solution options
• High satisfaction of the people involved

Prerequisites for successful mediation:

To use the mediation methodology and the advantages mentioned above, certain prerequisites for the negotiation and behavioral principles of the participants are required:

• The negotiating parties are willing to talk.
• The parties want to find a solution independently and voluntarily.
• The goal is to maintain personal or business relationships in the future as well.
• The subject of dispute is complex and chaotic.
• Factual and relationship levels are mixed.
• One is interested in a quick and cost-effective solution.
• The matter should be treated confidentially.

If one or more of these characteristics are present, it makes sense to resort to mediation. It doesn’t matter whether the application area relates to the corporate/business sector, the private sector, or the public sector.

In the corporate environment (business mediation area), for example, internal conflicts, shareholder matters, or conflict situations between employees of all hierarchy levels can make mediation sensible. Because the parties usually have to continue working together in the future, mediation is often the method of choice here.

Principles of mediation

In principle, besides the voluntariness regarding the implementation of mediation, the comprehensive involvement of all conflict parties, and the confidentiality of the process, the openness to results of the parties is a decisive principle for successful mediation. If the participants insist on their positions and no deviation is expected, no successful mediation is possible. Conversely, however, one party should not be the only one to give in, as this would not be a basis for a promising, conflict-free future relationship. Mediation is therefore characterized by mutual concession and negotiation to achieve the win-win situation explained at the beginning.

To ensure the confidentiality of the mediation process, it is advisable to require a confidentiality agreement from all parties (including the mediator). This makes it possible to disclose sensitive information that is essential for mutual understanding and thus find a solution to the conflict.

Shuttle Mediation

In classical mediation, both parties work out a consensual solution to the conflict in one or more discussions under the guidance of the mediator. In contrast, in shuttle mediation, both parties are not present at the same time and therefore have no direct contact. The mediator instead speaks alternately with the negotiating parties, hence the term shuttle.

The most prominent example of this type of mediation is probably the negotiations between Israel and Egypt conducted by former US President Jimmy Carter at Camp David, which ended with the conclusion of the Israeli-Egyptian peace treaty in 1979.

One of the advantages of shuttle mediation is, for example, that in far-advanced conflicts, the parties do not have to communicate directly with each other, which can prevent further escalation. Furthermore, shuttle mediation is useful when one party cannot or does not want to speak freely in front of the other. This can be the case, for example, when different hierarchy levels meet or when one party is rhetorically far superior to the other.