Note
This autumn of 2020 I completed my training as a mediator. Reason enough to give a short summary of mediation itself and in contrast to legal representation.
Mediation and advocacy
Mediation is a structured and voluntary process for the constructive settlement of a conflict. An independent and all-party third party accompanies the conflicting parties in their own solution process. The conflicting parties (so-called mediants) try to reach an agreement that is largely in accordance with their individual and common needs and interests. The advantage of mediation is therefore that the mediants can agree on a specific and personalized solution comparatively quickly and cheaply. Lengthy and costly court proceedings can be avoided. The mediants are responsible for keeping the ball in their own court and always actively contribute to the holistic solution.
In legal representation, on the other hand, the lawyer takes on the task of representing the interests of his client in the best possible way. He proposes strategies and solutions and does what is necessary to implement them in agreement with the client. This procedure can cause great resistance from the other party. The advantage of legal representation is that the weaker party can find a professional advocate (malicious tongues speak of a rent-seeker) to handle the dispute on their behalf. The client can assume that at the end of the process or negotiations there will be a result that corresponds to the existing legal situation. A well-known saying, however, says that being right and getting right are two different things.
Mediation, in contrast, is an out-of-court procedure to resolve a conflict. It is confidential and voluntary. The task of the mediator is to ensure that the process is orderly and that the essential issues are dealt with properly. The mediator, as a neutral third party, leads the discussions and thus creates the framework for finding a fair solution. However, the responsibility for this solution lies with the parties themselves. It is not about guilt and innocence as in court proceedings, but solely about the interests and motives of the parties involved. The goal is a written agreement that should serve as a basis for further joint exchange.
The different phases can be completed in a single meeting or on different days. As a rough overview, the individual five phases can be presented as follows:
- clarify framework for cooperation (work alliance)
- development of the issues requiring regulation
- conflict clarification and conflict management as well as declaration of interests
- development of solutions
- final agreement
Mediation is thus suitable for partners who are used to communication, are prepared to negotiate and are solution-oriented, and are used to being able to decide their own fate. If these conditions are fulfilled, a good solution can also be found for emotional and conflict-laden topics in mediation. Legal representation, on the other hand, is recommended for partners of varying strengths and hardened conflict situations. The conflict is, so to speak, delegated to the legal representation. If one wants to solve a conflict independently and sustainably, the mediation procedure should always be examined in advance. It is worthwhile!
Sources
Unpublished materials in the context of the mediation training at the Konstanz School of Mediation (website)
References
Fisher, Roger; William, Ury et al. (2018); Das Harvard-Konzept: Die unschlagbare Methode für beste Verhandlungsergebnisse; DVA-Verlag.
Glasl, Friedrich (2020), Konfliktmanagement: Ein Handbuch für Führung, Beratung und Mediation, Haupt-Verlag.
Watzlawick, Paul (2016), Menschliche Kommunikation: Formen, Störungen, Paradoxien; Hogrefe-Verlag.
Schulz von Thun, Friedemann; Ruppel, Johannes et. al. (2003); Kommunikationspsychologie für Führungskräfte (Miteinander reden Praxis); rororo-Verlag
