Avoiding Litigation in Conflict with Mediation: Legal Background

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In mediation, two or more conflict parties, together with a mediator or several mediators, sit down at a table to identify, resolve and resolve existing differences, conflicts. Important is that both sides are satisfied with the compromise.

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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 - from private to public space

The word mediation has its origins in both Greek and Latin, and means neutral as well as mediating to no side.

From the 70s, mediation procedures in Germany mainly took place in the family sector. Divorces and separations were accompanied by the mediators. However, the mediation process continued to spread. Mediation in the economic field became more and more important.

Mediators in business

The mediation is not a newfangled frippery, which is spilled out of America. On the contrary, the roots of mediation date back to several thousand years and are widespread worldwide. And there are numerous, historically proven examples.

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Public construction projects are accompanied by mediators in advance to bring all parties (usually investors, community, citizens) together and to protect them from any legal proceedings during the construction phase. Firms have mediators come to resolve disagreements within or between departments.

Company: Round table instead of judge's table

Well-known companies in the German economy (e.g. Deutsche Bahn, SAP, EON) also have the power to Sense and benefits of mediation procedures - but of course also their savings potential, which help to avoid expensive, protracted legal proceedings.

Decision-makers from leading German companies already established a “Round Table for Conflict Management and Mediation” under the scientific supervision of the European University Viadrina.

Do not become a mediator!

This questioning technique educated the questioned to autonomous thinking. The end of the song? Socrates had to drink the hemlock mug because he remained faithful to his beliefs.

Are you planning to go for an intermediary? Do you want to be the bright, saving hero in negotiations? Think of Socrates Do not be a mediator- Forget it!

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The task of the mediator is to remain inconspicuous, to steer and to enable the conflicting parties to resolve the conflict.

Mediation ends apartheid in South Africa

Did you know, for example, that apartheid in South Africa was also eliminated through mediation? When Nelson Mandela was still in jail, representatives of the apartheid regime and the ANC met to discuss the eventual involvement of the black population in the government or the complete surrender. These meetings were conducted by mediators.

Even those who did not receive mediator training certainly worked unconsciously as a mediator; whenever he attempted to mediate, to search for the exact reasons, and to refer to the conflict parties without referring to himself. This would be a classic application field.

The goal

Thus, the goal of a mediation process is already clear: Under the mediation of the neutral mediator as far as possible a universally accepted and feasible solution should be brought about by respecting the respective needs and interests of the parties by means of negotiations.

At the end of each mediation process, the final agreement is then signed with a written fixation of the results. Above all, the mediation law promulgated at the 26.97.2012 applies, which makes a uniform picture from the previous patchwork of different laws.

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The final agreement / written fixing

The solution discussed is fixed in writing. This is as concrete as possible: So who does what when and why! If the solutions affect legal problems, the mediator will urge that legal consultants be consulted on the solution assessment. Otherwise the principle of informality would be violated.

It could be that a conflicting party agrees to a solution that puts him in a very bad legal position. That does not mean that such agreements can not be implemented anyway! It is not just a legal dispute. But each party should be aware of the implications of the solution!

And then?

The loop starts to run again at the next topic, so solution search, solution evaluation, implementation.

From experience, the first solution implementation takes the longest. Some topics / problems do not even need to be solved, because they do it on their own!

The legal situation

The Mediation Law, which was adopted at the 21.07.2012 and announced at the 26.07.2012, closes a legal gap for a proven and successful procedure.

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What is in the law?

So far, there have been references and short references in many other regulations or laws. The proclamation made it clear what mediation in the legal sense means.

The law defines the principles of mediation: voluntary, independent, self-responsible, with the aim of resolving a conflict by consensus. As a rule, a mediator can no longer mediate if he has previously worked for one of the parties in the case.

Independence of the mediator and confidentiality

This also applies to law firms and office communities when a partner worked for one of the parties to the dispute. Exception to the rule: The parties to the conflict nevertheless wish mediation.

The secrecy obligation (§4 MediationsG) of all persons involved in the proceedings and the exceptions permitted by the principle are also clarified.

Certification / Training of a mediator

What has long been overdue is the obligation to train a mediator. Until now, any mediator could name himself without having to prove the special acquired skills and abilities.

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A cautionary example - where this can lead - is the classic management consultant. This can also occur without any proof of ability on the market. The customer can not assess the competence in advance.

The planned certification will result in market shakeout, which will ultimately lead to higher quality.

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