Mediation to settle disputes vs. Court proceedings: 7 basic historical principles

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More and more in the focus of the public moves the mediation. One cause lies in the current legislative process. The roots of the method go back to the ancient Greeks.Antiquity

Here writes for you:


Reinhard Schinkel 58Is Reinhard Schinkel according to Handelsblatt one of Germany's best tax advisors and specialist author for tax law.


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Mediation will gain weight

Mediation will also increase in the future because many legal expenses insurance policies will include or include in your clauses a mediation procedure will be carried out with the neighbors before the feared apple tree controversy.

This means that before many civil cases, a first instance - the mediation - is switched. This happens simply against the background, to relieve the courts and of course to save costs (for the insurance).

What is mediation at all?

A wide variety of people meet in mediation Company to exchange experiences about new conflict strategies and especially solution strategies. This round table is scientifically supported by the Institute for Conflict Management at the Law Faculty of the European University Viadrina in Frankfurt an der Oder.

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But what does it actually mean to initiate a mediation procedure? And what does this mean?

Even the ancient Greeks ...

Already the Greek Plato was concerned with the conflict solution. In Africa mediation procedures are detectable in the strains. This was vital because there was no jurisdiction.

And the people of Confucian-influenced China used mediation to settle disputes before a lawsuit. The dispute in court is perceived as a shame.

A mediator ends the Thirty Years War

A well-known mediator from the early modern period was Alvise Contarini. He became famous for his mediation activities during the Thirty Years' War.

This mediator, respected by all hostile camps, had to conduct more than a thousand proven conversations until his efforts were successful and culminated in the Peace of Westphalia.

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For their services the mediators were scolded and mocked

However, please do not believe that the mediator's gratitude was shown and in part. No, the mediators were scoffed at cooperating suspiciously for the enemy to cooperate and the real role of the mediator was not at all perceived.

How was it with Socrates, for example? Because of his questioning technique, he was not only considered a great philosopher, but also a mediator. This form of question, known as “Socratic dialogue”, was a thorn in the side of the rulers at the time.

7 basic principles of mediation

For mediation to succeed, 7 basic principles must be taken into account - for example, the voluntary nature of participation or the neutrality of the mediator. An overview:

1. Principle: No one may be compelled to participate

All parties participate voluntarily in the mediation process. That's nice to say, but what if, for example, the employer wants their employees to take part in a mediation process? How far does an employee take part in the process voluntarily? In this case, the boss should be present at least during the first session and articulate his hopes with the procedure.

Important in the procedure is that the highest-ranking participant first announces your interests, so that the framework for the employees and the mediators is easier manageable!

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2. Principle: The process is carried out according to the results

What is meant by this?

There is no defined goal in advance.

The employer, for example, to come back from the first principle, can not now express his wishes as to how the mediation process ends. For example, a mediation process may be conducted between two parties to explore closer cooperation, and instead the parties will be totally disconnected after the trial.

Of course, that can also go in the other direction. Mediation for separation leads to a closer union. There is no right or wrong result, it can go in any direction.

3. Principle: The mediator is neutral and all-party

This is one of the core pieces of mediation. The mediator is absolutely neutral and has to be open to all parties, regardless of who pays his fee. Without this neutrality, the conflicting parties could not trust the mediator and the procedure.

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Everyone feels "ripped off". This principle of neutrality has also been included in the Mediation Act. The mediator is prohibited from conducting proceedings on a matter in which he has previously worked for one of the parties.

This applies, for example, to tax consultants who carry out a mediation procedure with their clients. The principle can only be deviated if both or all conflict parties agree.

4. Principle: willingness to solve / personal responsibility

The solution is not “announced” by the mediator. This is also a major difference from so-called arbitration. An arbitration procedure always ends with an arbitration award, that is, the various sides, the pros and cons are weighed up professionally and at the end a result is announced.

This is absolutely not the case here! The conflicting parties themselves must work out the solution. Even if no solution can be found - for a variety of reasons, the mediator will never interfere. No solution is one of many possible solutions.

5. Principle: The feedback

This principle is based on the fourth principle. The mediator will always check with the parties whether they agree with their conversation, whether you consider him neutral, or whether someone feels depressed.

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6. Principle: Confidentiality

For the mediation process to be successful, the absolute confidentiality of the information must be ensured. The parties must feel absolutely safe (and, of course, rightly) that no one is experiencing anything outside of the room unless it is so wanted by both.

7. Principle: information

The mediator must ensure that all parties have the same level of information. He will also press for everyone to have their agreements legally reviewed before signing.

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  1. Susanne P.

    Mediation is such a great way to resolve conflicts.

  2. Johanna F.

    Hurray, finally a post that gives me exactly the information about mediation I'm looking for. Thanks a lot for this!

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