Mediation

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Mediation ( Latin for mediation ) is a structured, voluntary process for the constructive settlement of a conflict , in which independent " non-partisan " third parties accompany the conflicting parties in their solution process. The conflicting parties, also called mediants, try to come to a mutual agreement that corresponds to their needs and interests.

The impartial third party (a mediator or a team of mediators in co-mediation ) does not make its own decisions regarding the conflict, but is only responsible for the procedure. Whether and in what form a mediator even proposes content-related solutions differs depending on the orientation of the mediation.

Citizen participation (→ overviews )
Mediation
Goal / function Influencing public discussions, consulting, advising decision-makers
typical topics controversial issues of public concern
context Questions at local to regional level (as a rule)
typical clients Local politics, local government, authorities or similar actors
Duration 1–2 days to several years
Participants (number and selection) 10–100 people; targeted selection
geographical distribution v. a. Germany , also other European countries

Source: Nanz / Fritsche, 2012, pp. 86–87

Mediation is also used in participation processes , such as a. the citizen participation .

Basics

Mediation in its current form developed from the practice of out-of-court conflict settlement. She has taken up approaches from conflict and negotiation research, psychological problem solving , psychotherapy and systemic therapy . Findings from the fields of conflict and communication science and humanistic psychology have also been incorporated , which is why the basis of the procedure is based on different sources. In Germany, the process has been increasingly established since around 1990 and has also been empirically evaluated.

The interdisciplinary genesis of mediation and its resulting systematic position between psychosocial, legal and negotiation-theoretical approaches as well as the extensive lack of (legal) requirements mean that there are only a few generally recognized or even mandatory procedures in mediation.

The most important basic idea of ​​mediation is the personal responsibility of the conflicting parties: The mediator is responsible for the process, the parties are responsible for the content. The idea behind this is that those involved in a conflict know best how to solve it and only need support from the mediator on the way to it. This distinguishes mediation from direct or indirect (i.e. facilitated by messengers or envoys) negotiation between two parties, from arbitration or other forms of jurisdiction, and from arbitration .

The mediator shapes the procedure, among other things, by proposing the structure and asking questions aimed at clarifying facts and working out the needs and interests of the parties. The extent to which a mediator also regards it as part of the mediator's role to propose content-related solutions and to what extent the mediator also holds individual meetings with the parties (as a “caucus”) varies depending on the orientation of the mediation; in the Anglo-American area z. A distinction is made, for example, between evaluative mediation , facilitative mediation , party-directed mediation and transformative mediation .

history

The Latin term mediator has denoted the mediator dei et hominum , i.e. between God (deus) and man (homo) , since the 2nd century . This role fell to Jesus in Christianity. In late antiquity, this was also used to describe people who appeared as advocates for others, which is compatible with the figure of Christ as mediator between two hierarchically separated worlds. Later also the Pope and - with the creeping sacralization of the kingship since 10/11. Century - the king referred to as mediator cleri et plebis , i.e. between clergy and people. In the course of the Saxon Wars of Henry IV , the term was generally extended to peacemakers, regardless of the way in which peace came about. Since the early 12th century, the term has been used that comes close to its current meaning: It is applied to people who try to reconcile two parties to the dispute out of court. The focus is on the person, not the more or less informal procedure, which was hardly documented at the time and is therefore rarely passed down. This goes hand in hand with the ongoing functional differentiation between the legal system on the one hand and mediation procedures on the other. Since the 13th century, the term mediation has been used to describe the arbitration that leads to an arbitration award or judgment in conflicts between powerful people, which was intended to compensate for the deficits of the royal judiciary.

An original form of mediation concerns the mediation of shamans and priests in contact with the overpowering world of gods or spirits. Christianity relies on concepts such as guilt , forgiveness and reconciliation , at the community level as well as in ethnic conflicts and during major political upheavals.

The prehistory of mediation also includes the old tradition of dispute resolution mediated by respected third parties between actors who are powerful in the dispute, without this being explicitly referred to as mediation. An example of this is the reconciliation between a ruler and a rival or rebel, condemned to death or cast out through the intercession of a bishop, for example, as documented for the Merovingian period . In pre-state times, averting blood feuds between neighboring clans by paying a fine represented a collective pre-form of today's individual perpetrator-victim compensation . The late Middle Ages also provided for atonement agreements to avert the then prevailing death and corporal punishment.

With the strengthening of formal jurisdiction, the limitation of arbitrary practices of rule and the increasing ability of the central authorities to enforce court judgments, the importance of these early forerunners of mediation declined, only to increase again in phases when the central authorities weakened. In the absence of secular means of power, the popes often continued to act as mediators.

In the course of the decline in state regulatory activities, but also in the non-legally regulated areas of international trade, etc., conflict solutions through mediation are increasing today. In secular civil society , the mediator takes on partial tasks of old social roles.

Delimitations

Mediation is a process and not an institution such as an arbitration tribunal , quality or arbitration board . However, it is possible that various institutions use mediation as a procedure, provided that they are essentially compatible with it. The mediator does not make any decisions, make no recommendations and make no suggestions for a possible conflict resolution.

A general distinction must be made between mediation and professional advice : If mediators give professional advice , they go beyond their role and take on additional responsibilities and obligations that may be subject to the standards of other professions, such as the Legal Services Act .

What mediation has in common with arbitration is that no binding decision can be made without the consent of the parties. In this respect, it can be described as a special arbitration procedure. However, the difference between mediation and arbitration is that the mediator leaves the decision entirely to the parties involved in the conflict, i.e. does not make any compromise proposals. The procedure is also not comparable to the work of an arbitration board.

Furthermore, mediation is not a form of psychotherapy . In a narrower sense, mediation always comes down to the work of one (or more) person (s) who structure and moderate the (communication) process with (all) the parties involved in the conflict.

Working with a single conflict party is not mediation, but conflict coaching .

Special forms

A (in Germany) controversial special form of mediation is shuttle mediation (also known as pendulum mediation), as it was used by Jimmy Carter in 1978 during the Egyptian - Israeli negotiations in Camp David . Here the mediator negotiates with the parties in a confidential individual meeting, also known as a caucus . Shuttle mediation can be the most suitable method, especially when the parties are very divided and when later harmony is not in the foreground.

Concepts

The conceptual foundations of mediation include: a .:

Procedural prerequisites for carrying out mediation include: a .:

  • Voluntariness - Everyone involved, including the mediator, can cancel the mediation at any time.
  • Confidentiality - The mediator and the persons involved in the implementation of the mediation process do not comment on the content of the process outside of the mediation (see the following section on confidentiality).
  • Individual responsibility of the parties - the solution to the conflict is developed by the parties themselves; the mediator has process responsibility for conducting the conversation or negotiation.
  • Openness to results - Mediation is not possible if the result is to be determined at the beginning. All conflict parties must go into mediation with a certain willingness to negotiate. This also includes the basic ability of those involved to negotiate and conclude, an aspect that is particularly important in extensive procedures in business or in the public sector.
  • Impartiality of the mediator - the mediator conducts the mediation impartially or impartially, that is, his attitude shows a willingness to identify and to be partial with everyone involved. This attitude goes well beyond simple neutrality; the content-related neutrality of the mediator does not extend to his position towards the conflicting parties. For example, he balances out a power imbalance between the parties by temporarily acting as the mouthpiece of the party with less communication.

Compare: communicator (psychology)

Even gender -Differences come in mediation to bear. For example, in divorce and family mediation, a mediator team made up of a male and a female mediator is usually used. In international peace mediation, it is taken into account in connection with mediation that conflicts affect men, women, boys and girls differently.

The selection of the mediator or the members of the mediator team is also essential: depending on the context, their neutrality, authority, experience, cultural sensitivity and possibly their reputation are important. This is especially true in international mediations. Mediator teams consisting of professional mediators on the one hand and outstanding well-known personalities on the other have proven themselves there.

confidentiality

The principle of confidentiality is a key point of mediation. It does not only apply to the mediator, but to everyone involved in the implementation of the mediation process. Its purpose is to ensure that the disclosure of information during mediation does not harm any party in subsequent civil proceedings.

In Germany the duty of confidentiality is regulated in § 4 MediationsG ; This gives rise to a right to refuse to testify in accordance with Section 383 (1) No. 6 of the Code of Civil Procedure ( ZPO) for later civil proceedings (but not for any criminal proceedings which, according to Section 53 of the Code of Criminal Procedure, only apply to certain persons or professional groups). In Switzerland, since January 1, 2011, there has been a right to refuse to testify in Art. 166 Para. 1 lit. d of the new Code of Civil Procedure (ZPO). In Austria, registered mediators are protected by a confidentiality requirement in accordance with Section 18 of the ZivMediatG. At the European level, the confidentiality of mediation in cross-border disputes is specified in Article 7 of the Mediation Directive.

Typically, confidentiality information is part of the mediation agreement. The information is used on the one hand to inform the parties and on the other hand to define further details, for example the possibility of a joint release of the mediator from the obligation of confidentiality.

aims

The aim of mediation is the amicable, extrajudicial solution of a conflict - if possible through a mutual exchange about the background of the conflict and with a binding, future- oriented agreement between the participants. In contrast to legal proceedings, both parties to the conflict should win in mediation - the aim is to achieve a win-win result. The subject of mediation is not limited to what is objectively given as the basis for a claim , but includes more general individual and common interests of all parties.

A further distinction is to be made between ending the conflict and resolving it: The ending of a conflict does not necessarily have a peacemaking effect; it can certainly result in the breaking off of relationships and / or a desire for revenge. A conflict settlement can sometimes only be brought about by taking into account the deep structure of the conflict. If the deeper causes of a conflict can be dealt with successfully, the interpersonal relationship between the parties can sometimes be sustainably improved for the future. In the case of mediation, in contrast to legal proceedings, the question of possible guilt is not in the foreground. Changes in the behavior of the mediation participants among one another are only encouraged to the extent that they are necessary for a binding solution to the conflict. In this respect, mediation differs from therapeutic procedures.

In addition to the actual goal of mediation - for example, the settlement of property issues in the event of a divorce ; the agreement on joint parental custody despite the separation of the parents or the continuation of a cooperation between two companies - there are also goals that are outside the actual procedure:

  • Consideration of interests that would be ignored in civil proceedings;
  • Reduction of procedural costs and follow-up costs ;
  • Possibility of an unbureaucratic and flexible procedure;
  • Protection of personnel and operational resources ;
  • no publicity through reports in the mass media .

Methods

The method of mediation is a synthesis of numerous elements from various disciplines. In terms of method , it is particularly elements from the fields of problem solving, communication (system theory) and topic-centered interaction . A central concern of every mediation is to bring the conflicting parties back into conversation. The newly beginning communicative process is to be controlled in such a way that the conflict parties

  • Separate thing and person ;
  • recognize individual perception phenomena as conflict factors;
  • Recognize their own needs and interests and the different needs and interests of the conflict partner (s) and
  • uncover decision bias for yourself.

Stages of mediation

Various phase models of mediation have developed over the decades. Although the phases are differentiated from model to model, the following five phases can be found somewhere as an action strategy in most models:

1. Order clarification

First, the parties are informed about the mediation process, the role and attitude of the mediator, a mediation agreement is concluded for the mediation of the conflict and the further procedure is coordinated.

2. Collection of themes

At the beginning of the second phase, the parties present their points of contention and concerns in context so that the topics and areas of conflict can be collected and structured for further processing.

3. Positions and interests / exploration of perspectives and background

In the third phase, the actual problem processing begins with the decision on the first topic to be dealt with. Then the participants have the opportunity to present their view of the respective aspect of the conflict on each topic in detail. Information, data and perceptions are exchanged before the different and common desires, needs and interests of the parties can be dealt with in depth and the conflict can be comprehensively illuminated. In this phase, the transition from positions to underlying interests is particularly important. In addition, standards are usually developed for a solution that is fair or sensible from the perspective of those involved. In addition to the positions of the conflict parties, their backgrounds, goals, interests and - depending on the orientation and training of the mediator - emotions , aspects of identity (roles, self-image) and insights into deeper causes of the conflict come to light.

4. Collecting and evaluating solution options

In the fourth - the creative - phase, solution options for the individual problem areas are initially collected in a brainstorming session without any assessment. After the brainstorming process has been completed, these solution options are evaluated and negotiated by the mediands. In this phase, the mediator will usually slow down the hasty decision on solutions by asking the participants to what extent the solutions found are in line with the interests of the parties identified in the previous phase or the previously developed criteria for a just solution. The mediator will also check with those involved whether and how the respective solution options can be implemented in reality.

5. Final agreement

At the end of the mediation, the results are recorded (usually in writing). Concrete regulation of the further course of action, including the definition of implementation deadlines and behavior in the event of a future conflict, is customary. The agreement reached at the end of the mediation can be documented in a final agreement with the consent of the parties; In relation to Germany, this is reflected in Section 2 MediationsG . If this is useful or necessary, the final agreement can be notarized.

Concerning. Regarding the legal nature of such an agreement, it should be noted that people can conclude agreements within the framework of their private autonomy and that certain legal relationships, however, require notarial certification.

Notes on the documentation:

Usually, mediators prepare minutes of the meetings for their own use in the course of mediation in order to support their own memory and thus enable an orderly mediation process, whereby sound recordings of the meetings can also be made with the consent of the mediators. It is often agreed that he will send the mediators minutes of the meeting after each meeting, for example in the form of a brief report of the results . The question that may arise here is to what extent the agreed confidentiality obligation effectively prevents the mediators from being able to present confidential documents in any subsequent legal process.

attitude

The attitude of the mediator is given central importance in mediation. Sometimes even mediation is completely understood as an “attitude”.

In addition to the aforementioned attitude of impartiality, the main characteristics of the mediator's attitude are also appreciation , openness and curiosity . According to Ed Watzke , the mediator has to mediate without judging the plausibility or justification of the various perspectives. In addition to his attitude, specific competencies of a mediator are mentioned as essential characteristics of a mediator. The mediative competences overlap with intercultural competences , since in both areas, for example, ambiguity tolerance , the ability to meta-communication and flexibility are mentioned; the virtue of wisdom is also mentioned in this context.

Not only on the part of the mediator, but also on the part of all those involved in mediation, there is talk of a "mediative attitude". As elements of this basic attitude, for example, humanity, respect and appreciation for other people as well as the willingness to stand up for one's own interests and at the same time accept the interests of others. In this context, a “strengthening of personal responsibility instead of decision-making delegation” is mentioned as a socio-political dimension.

Fields of application

Historically, the development of mediation in Germany began more than 20 years ago in separation and divorce mediation . In the meantime, an increasing diversification of the fields of application can be observed, which has led to a special division:

Forms of mediation and related procedures

In some conflict situations, mediation is the only alternative to legal proceedings , which can pose higher temporal and financial risks for those involved. Breaking new ground in this context

  • the integrated mediation which introduces the mediation as the overall process concept and describes the mediating in the broader context procedure boundaries. This procedure was first introduced in the court case. She goes over
  • In addition to court-related mediation , where mediation is conducted while the legal process is suspended.
  • the appraisal , a judge who is not authorized to make decisions and who can offer mediation, but also other methods of consensual conflict resolution.

For some years now, mediation has no longer been seen in isolation as an “alternative” to judicial judgment, but rather a variety of “appropriate” conflict resolution methods that complement one another and do not claim to be a panacea. Therefore, there is increasing discussion about eligibility and exclusion criteria for dispute resolution through mediation, especially in comparison to judgment and arbitration proceedings as well as mediation. According to this, the strengths of mediation are particularly evident where it is not about a binding decision on a question that lies in the past, primarily on the basis of the law, but rather the future relationships are to be regulated by the parties themselves according to their interests without external determination. A power imbalance can speak against mediation, which makes it difficult to take responsibility for interests in the negotiation.

There are many forms of mediation and procedures related to them. These include the following:

  • The lawyer based Mediation (lawyer-supported mediation) is a mediation method wherein a allparteilicher mediator initiates the process and the parties will each advised by own lawyers. The mediation is structured in five phases. In the event of legal proceedings, the parties are free to have their lawyers represent them in court.
  • The collaborative practice (also Cooperative attorney method , Eng. Collaborative law or collaborative practice , short- CP ) is a conflict resolution process in which a mirror-image lawyer mandate is completed, and work towards the lawyers of the parties, together with the parties to settle out of court. In this process, no independent third party is generally used as mediator, but both lawyers have been trained as mediators and work together, similar to co-mediators, although they are both partisan and therefore not neutral from the outset. If necessary, other experts are called in - such as partisan coaches and, in separation and divorce cases, for example child psychologists and tax advisors. However, in complex proceedings, a “case manager” or “facilitator” trained as a mediator can be used to organize the process and, if necessary, also moderate it. Similar to mediation, cooperative practice is structured in five phases (1st working alliance, 2nd topic definition and inventory, 3rd interest research, 4th agreement and 5th implementation). If there is a lawsuit, the cooperative practice is ended. In this case, it is agreed beforehand that the parties cannot be represented in court by the same lawyers (disqualification clause).

International peace mediation

At the international level, a distinction is made in peace processes and negotiations between official diplomacy ( Track I ), which takes place among representatives of two or more states and possibly with the participation of international organizations such as the United Nations, and less official channels of mediation ( Track II ) among specialized non-government actors, such as humanitarian or religious organizations. The methodical or operational support of the mediators or mediator teams and the conflicting parties in peace mediation is called "mediation support".

Legal framework of mediation

European Union

At the level of the European Union, Directive 2008/52 / EC (Mediation Directive) came into force in 2008 for mediation in civil and commercial matters, which the national states are currently implementing. This guideline describes the term legal mediation and the role of the mediator. Type 3 is:

“Article 3 Definitions

For the purposes of this guideline, the term

a) “Mediation” means a structured procedure, regardless of its name, in which two or more parties to the dispute try to reach an agreement on the settlement of their disputes on a voluntary basis with the help of a mediator. Such proceedings may be initiated by the parties, proposed or ordered by a court, or may be required by the law of a Member State. It includes mediation by a judge who is not responsible for judicial proceedings in the matter in question. This does not include efforts to resolve disputes by the court or judge seised during the legal proceedings on the dispute in question;

(b) “mediator” means a third person who is requested to conduct mediation in an effective, impartial and knowledgeable manner, regardless of his title or profession in the Member State concerned and the manner in which he or she is appointed to conduct the mediation or was entrusted with this. "

Germany

Mediation in Germany is regulated by the Mediationsgesetz (MediationsG) , which came into force on July 26, 2012 and Directive 2008/52 / EC of the European Parliament and of the Council of May 21, 2008 on certain aspects of mediation in civil and Implements commercial matters.

In the case of lawyers , mediation is also defined in the professional code of conduct for lawyers and in the Legal Services Act . As a pure mediation activity, mediation is not a legal service in accordance with Section 2 Paragraph 3 Number 4 RDG , unless it intervenes in the discussions between the parties involved by means of legal proposals for regulation.

In Germany, many in-court and near-court mediation procedures were carried out. After the Mediation Act came into force, this approach was replaced by the merit judge model ( Section 278 (5) ZPO) after a transitional period . In this model, the judge can use all methods of conflict resolution including mediation.

In-court and near-court mediation (2002-2013)

In 2002, Lower Saxony was the first federal state to initiate a project on so-called “judicial mediation”. From this point on, many local and regional courts, administrative and social courts in Lower Saxony offered judicial mediation in cases of conflict that were pending before the court. If a final agreement was reached in the mediation, the judge mediator recorded the settlement; otherwise the court process was continued before the judge responsible for the decision.

In Hesse, the administrative courts started offering mediation in 2004. After 2010, in-court mediation in the Hessian social justice system was practiced across the board in the first and second instance, after a pilot project started in 2008 in four courts had previously been successfully completed.

From 2005, mediation was also promoted by the judiciary in East Westphalia . As part of the model project Justizmodell in OstWestfalenLippe , which primarily aimed to reduce bureaucracy in East Westphalia, mediation became an important pillar. In- court mediations were carried out in the regional court districts of Paderborn and Detmold and at the administrative court in Minden . A judge acted as mediator for these, to whom the proceedings were passed on by his fellow judge responsible for the litigation. If the mediation was successful, the result was recorded by the judge mediator as an enforceable settlement. If the mediation failed, the disputed procedure was continued with the originally competent judge and decided by this.

Court-affiliated mediation was practiced at the Berlin Administrative Court . The judge mediator did not give any legal advice and did not give any (inadmissible) legal advice; he did not act as a judge. Rather, he took on a task of court administration on behalf of the court president by trying to persuade the parties to reach an agreement and, if necessary, record any agreement in a private protocol.

As part of the Justizmodell OWL project, mediation in the form of court-based lawyer mediation also took place at the Bielefeld Regional Court after 2007 . Here the pending court proceedings were handed over to a trained mediator. If the mediation was successful, the judge of the disputed proceedings recorded the settlement. If it did not succeed, the case would continue to be heard and the judge decided. The mediation incurred only minor additional costs for the parties, which had to be borne in equal parts. At the Cologne District Court, Regional Court and Higher Regional Court, there has also been the option of court-related mediation by lawyers since February 2007 - comparable to the Bielefeld model described.

In Bavaria, model tests and pilot projects for judges in civil justice and mediators in social justice took place.

In the Free State of Saxony, numerous internal court mediation projects started on January 1st, 2010.

In-court mediation, in which the proceedings already pending in a court are passed on by the legal judge appointed to decide to another judge in accordance with Article 278, Paragraph 5, Clause 1 of the ZPO was submitted analogously, was discussed controversially in legal literature. In particular, the offer of judge mediation was criticized as an inadmissible economic activity of the judiciary or as anti-competitive competition on the mediation market, since it violates Article 12 of the Basic Law and the Act against Unfair Competition (UWG) and could displace free mediators from the market, especially insofar as it was a cost-neutral offer for the parties to the dispute in pending proceedings.

In 2010, a project started at the district court district of Heidelberg in which not only lawyers but also experts acted as mediators. The most technically competent mediator should be used here.

According to Section 9 of the Mediation Act, an in-court mediation offered at a court before July 26, 2012 could only be continued under this name until August 1, 2013; afterwards, corresponding offers of the judiciary had to be transferred to the judge model (Section 278 (5) ZPO).

Mediation and legal work

In the past, the activity of the non-lawyer mediator was legally controversial because of his potential legal advice and a possible violation of the Legal Advice Act . With the entry into force of the Legal Services Act on July 1, 2008, it has been clarified in accordance with Section 2 (3) No. 4 RDG that mediation is not a legal service as long as it does not interfere with the discussions between the parties by means of legal proposals for regulation. Non-attorney mediators must point out to the mediators that external attorneys can be called in (see Section 2 (6) No. 2 MediationsG ).

For lawyers who act as mediators, Section 7a of the Professional Code of Practice for Lawyers (BORA) refers to Section 5 (1) MediationsG. Accordingly, legal and non-legal mediators must complete appropriate training and regular training. Regardless of the authorization to use a corresponding designation, mediation is also recognized as a part of the legal work. The increasing importance of mediation in the legal profession corresponds to its explicit inclusion in the professional code, Article 18 of which now reads: If the lawyer acts as an intermediary, arbitrator or mediator, he is subject to the rules of professional law. This makes it clear that the lawyer, even as a mediator, is subject to a lawyer's duty of confidentiality.

The prohibition of prior engagement (Section 3 (2) of the Mediation Act) prohibits a lawyer from mediating in a case that he was previously involved in as a lawyer. Likewise, legal activity after mediation is excluded from the point of view of the duty of confidentiality and the prohibition of the perception of conflicting interests, unless the lawyer acts in the common interest and on behalf of all parties involved in the mediation.

It is more difficult to answer whether a lawyer may act as a mediator if he has previously represented one of the parties involved in the mediation in another matter. The professional law problem of representing conflicting interests does not arise here; nevertheless, the mediator's impartiality is likely to be questioned in this case too. The violation of the duty of neutrality does not, however, have any consequences under professional law. It is merely a breach of a contractual obligation in the mediation contract, for which the lawyer may be liable for damages. Conversely, there is no breach of duty if the lawyer refers to his previous activity before the mediation contract was concluded.

The training standards for lawyers were determined by the bar associations until 2013. With the new version of Section 7a BORA, which now refers to Section 5 (1) MediationsG, mediators are no longer subject to a special regulation under professional law.

Mediation in criminal law

Federal German criminal law knows and promotes external mediation in the form of offender-victim compensation .

Mediation in prison

Occasionally, mediation is also used in the penal system to resolve conflicts. The project of judicial mediation in the JVA Berlin-Tegel has been particularly well examined

Austria

Mediators who bear the designation “registered mediator” assigned by the Austrian Federal Ministry, Vienna, according to the Austrian Civil Law Mediation Act (ÖZivMediatG), are legally obliged to use this designation when exercising mediation (Section 15 (2) No. 1 ÖZivMediatG) .

In Austria, Art II of the Neighbor Law Amendment Act ( BGBl. I No. 91/2003 ) , which has been in force since July 1, 2004, obliges contending neighbors to seek an out-of-court settlement before a lawsuit can be brought. The promotion of out-of-court dispute resolution methods such as mediation, arbitration and arbitration helps to relieve the burden on the courts. Mediation carried out by a registered mediator has the effect that the statute of limitations is suspended for the duration of the mediation (Section 22 of the ZivMediatG ).

With the so-called Disability Equality Package ( Federal Law Gazette I No. 82/2005 ), on January 1, 2006 a. a. Protection against discrimination is also anchored in law in large parts of daily life for people with disabilities. If the prohibition of discrimination is violated, claims for damages can be asserted in court, however, an attempt at arbitration must be carried out beforehand, within the framework of which mediation is to be offered as an alternative conflict settlement (Section 15). The federal government bears the costs for the procedure, including mediation, in accordance with the guidelines for mediation and for the use of interpreters, experts and other specialists in arbitration proceedings in accordance with Sections 14 ff of the Federal Equal Opportunities for People with Disabilities Act .

An amendment to the Vocational Training Act has been in force since July 1, 2008 ( Federal Law Gazette I No. 82/2008 ), with which the legislature allows an extraordinary termination of apprenticeships at the end of the first and second year of apprenticeship, but only if a mediation process with a registered mediator has taken place.

Mediation in criminal law is anchored in the form of compensation for offenses, with provisions primarily in Sections 198 - 209b of the Code of Criminal Procedure and Sections 29, 29a and 29b of the Probation Assistance Act.

Switzerland

In Switzerland, the Swiss civil procedure code came into force for the first time on January 1, 2011. The interfaces to mediation have now been regulated. Subject to certain exceptions, an arbitration procedure must be carried out before going to the judge. The parties are free to agree on mediation instead of a state arbitration procedure. The mediation process is to be organized by the parties and has to be carried out independently of the court or the arbitration authority.

The Swiss Umbrella Association for Mediation (SDM) and the Swiss Chamber for Business Mediation (SKWM) publish their professional rules and a list of their recognized mediators and training on their homepage.

In addition, the youth prosecution service can commission a suitable organization or person to carry out mediation proceedings and, if successful, refrain from bringing charges before the youth court .

Italy

Italy has a mediation obligation for certain areas of law. When this obligation was temporarily lifted from October 2012, the number of mediations fell sharply. The obligation to mediate was reintroduced in September 2013.

Cost comparison

Resolving a conflict with the support of a mediator who is paid by the hour can be more cost-effective , especially in the case of high amounts in dispute, than resolving the dispute in court with the help of a lawyer .

Sometimes the mediation does not bring about a conflict resolution, so that the costs of the court proceedings are additional. On the other hand, there is always the possibility of further disputes, as far as a court judgment could not develop a lasting satisfactory effect.

If the principle of informing the parties to the dispute is not sufficiently taken into account in a mediation - for example due to a lack of external legal advice - there is also the risk that one party to the conflict will in retrospect feel legally disadvantaged by the settlement reached. Accordingly, especially in the case of existential disputes, the mediation participants should seek advice on the legal framework from qualified lawyers.

Mediation and justice

Whether or not mediation can be viewed as fair always depends on the perspective, as justice , unlike legal law, is a very subjective concept. Justice-promoting factors in mediation: voluntary participation, decisions are made by oneself, legal conformity, procedures, satisfaction of the parties and (social) sustainability. Rather unjust elements of mediation, on the other hand, are: distortion caused by the process itself (you have to actively communicate), role and influence of the mediator, possible manipulation by the participating parties, other barriers (language, character, understanding, ...).

Furthermore, the assessment of the consideration is justice form and applied to tangible criteria of justice depends:

In the legally legal sense (“objective” justice), mediation can be considered fair insofar as it has been formalized by the Mediation Act on the one hand and the result of the mediation is legally binding on the other if a contract is drawn up.

Mediation is often associated with procedural justice . The same rules and circumstances apply to the participants in a mediation, each party can contribute. Since the role of the mediator is impartial, he will not favor either party, but at the same time provides a framework in which everyone can contribute as they see fit. In addition, a solution can only be found in mediation if all parties agree. Understanding and understanding between the parties and the competence of the mediator play a decisive role here.

In contrast to procedural justice, there is fairness of results . Regardless of the process, it is about the end result, which is considered fair if it yields benefits (for the parties or social). Mediation as an open-ended procedure cannot always guarantee this. B. if there is no agreement. However, if an agreement is reached, it can be described as fair, since a contract is only signed if all parties agree and see it as appropriate (cf. word origin “fair”: appropriate, correct, appropriate).

education

Germany

The professional title of mediator is not legally protected in Germany, there are no legal regulations for mediation training.

The designation of certified mediator , on the other hand, is protected by Section 5 (2) MediationsG. The ordinance on § 6 MediationsG is the Certified Mediator Training Ordinance (ZMediatAusbV) issued in August 2016 , which has been in force since September 1, 2017.

The designation "certified mediator" is, however, already provided for by law beforehand: In particular, the Consumer Dispute Settlement Act ( BGBl. I p. 254 ) passed on February 19, 2016 with regard to the qualification of dispute mediators requires that a dispute mediator be qualified as a judge or a certified mediator must be ( Section 6 (2) sentence 2 VSBG).

Some private mediator associations have made the definition of training standards their task. The German Society for Mediation (DGM), the Association of Integrated Mediation (IM), the Federal Working Group for Family Mediation (BAFM), the Federal Mediation Association in Business and Work (BMWA) and the Federal Mediation Association (BM) all require training of at least 200 hours and certify member companies that train according to the standards of the association. In fact, there are institutes that only train 110 hours, others have 450 hours including the following intervision sessions. As a rule, in order to be able to issue a certificate, the mediator associations require proof of qualified training recognized by the association, documentation of mediations in four cases, appropriate inter- or supervision and a colloquium . After a successful recognition procedure, this entitles the holder to use the addition of the respective association name, e.g. Mediator BAFM .

Since 2009 the three associations BAFM, BM and BMWA have mutually recognized the mediators certified by one of them if they pay a fee of 250 euros to the recognizing association.

In addition, there has been mutual recognition of the certifications between the Federal Mediation Association (BM) and the Swiss umbrella organization Mediation since 2009 and between the BM and the Austrian Federal Association for Mediation (ÖBM) since 2010.

In addition to these associations, other professional associations and training institutions, private institutions with public funding and university educational institutions offer training as a mediator, for example:

Some of the courses extend to a master’s degree .

Austria

In Austria, access to mediation in civil law matters has been regulated by law since 2004 in the Federal Act on Mediation in Civil Law Matters (ZivMediatG). With professional qualifications and a minimum age of 28 years, a mediator can be entered in the list of registered mediators in civil law matters (§ 15 ZivMediatG) at the Ministry of Justice . The registered mediator - in contrast to other, unregistered mediators - does not have to testify about the content of the mediation in court proceedings (§ 18 ZivMediatG).

The training ordinance (ZivMediat-AV) issued on the basis of the Austrian Mediation Act requires mediation training of at least 365 units for registered mediators in civil law matters, while lawyers and members of psychosocial professions require a reduced training scope of 220 units.

See also

literature

Web links

Wiktionary: Mediation  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Patrizia Nanz , Miriam Fritsche: Citizen Participation Handbook: Procedures and Actors, Opportunities and Limits , bpb (Volume 1200), 2012 (PDF 1.37 MB) →  to order the printed version at bpb.de.
  2. ^ Hermann Kamp: Peacemaker and mediator in the Middle Ages. Darmstadt 2001. ISBN 3-534-15167-4 . P. 14ff.
  3. ↑ Kamp, p. 149f.
  4. ↑ Kamp, p. 240f.
  5. ↑ See Michael Bongardt Endstation Strafe? Looking for a culture of forgiveness. In: Michael Bongardt, Ralf K. Wüstenberg (Ed.): Reconciliation, punishment and justice. The heavy legacy of injustice states. Edition Ruprecht, 2010, ISBN 978-3-7675-7132-7 , p. 57 ff.
  6. ↑ Kamp, p. 63ff.
  7. ↑ Kamp, p. 78.
  8. ↑ See Axel Montenbruck : Civil religion. A legal philosophy II. Basic elements: reconciliation and mediation, punishment and confession, justice and humanity from a legal perspective. 3rd considerably expanded edition. 2011, pp. 25 ff, 90 ff, 144 ff, 209 ff. (University Library of the Free University Berlin open access )
  9. ↑ Patrick Horvath: Jimmy Carter's Mediation in Camp David. Vienna 1999.
  10. ↑ Procedure of a mediation. MiKK , accessed May 12, 2018 .
  11. ^ Julia Palmiano Federer, Rachel Gasser: International Peace Mediation and Gender: Bridging the Divide. (PDF) In: BPC Policy Brief V.6. N.05, bricspolicycenter.org. November 2016, accessed on May 12, 2018 .
  12. ↑ United Nations Guidance for Effective Mediation. (PDF) United Nations, June 25, 2012, accessed on May 12, 2018 . P. 7.
  13. ^ Gernot Erler: The Panel of Eminent African Personalities and the Conclave in the Savannah . In: Germany as Mediator. Peace Mediation and Mediation Support in German Foreign Policy. (PDF) In: Peace Mediation Conference 2014. Federal Foreign Office, November 25, 2014, accessed on May 12, 2018 (English). P. 18.
  14. ^ Nicola Neuvians: Mediation in Family Businesses: Chances and Limits of the Procedure in Conflict Dynamics , Springer, 2011, ISBN 978-3-8349-6160-0 . S. 169- 170 .
  15. ↑ Katharina von Schlieffen: Mediation and Dispute Participation, Negotiation Techniques and Rhetoric , BMV Verlag, 2006, ISBN 978-3-8305-1132-8 . P. 19 .
  16. ↑ John M. Haynes, Axel Mecke, Reiner HE Bastine, Larry S. Fong: Mediation - from conflict to solution. 2nd Edition. Klett-Cotta, Stuttgart 2006, ISBN 3-608-91080-8 .
  17. ↑ Gerhard Falk, Peter Heintel, Ewald E. Krainz: Handbook Mediation and Conflict Management , Springer-Verlag, 2015, ISBN 978-3-322-80955-1 . P. 111 .
  18. ↑ a b c d Katharina Kriegel-Schmidt: Intercultural Mediation: Plea for a Perspectives-Reflexive Model , LIT Verlag Münster, ISBN 978-3-643-11489-1 . Pp. 70-72 .
  19. ↑ a b Elisabeth Kals, Heidi Ittner: Wirtschaftsmediation , Hogrefe Verlag, 2008, ISBN 978-3-8444-2016-6 . P. 94 ; Trenczek, T. All-partisanship, aspiration and reality, Zeitschrift für conflictmanagement 6/2016, 230 ff
  20. ↑ a b Trenczek, T .: Tasks, functions and competencies of mediators, in Trenczek et al. (eds.) Handbook Mediation and Conflict Management, 2nd ed. 2017, 182 ff .; ISBN 978-3-8487-2948-7
  21. ↑ Renate Dendorfer-Ditges : Out-of-court dispute settlement through mediation: nonsense, old wine in new bottles or meaningful tradition? , Pp. 219-226. In: Joachim Hengstl, Ulrich Sick: Right yesterday and today: Festschrift for the 85th birthday of Richard Haase (Philippika) , Otto Harrassowitz Verlag, 2007, ISBN 978-3-447-05387-7 . Pp. 222-223
  22. ↑ E.g. Walther Gottwald, Alternative Dispute Resolution (ADR) in Germany - ways, detours, waymarks. In: Family - Partnership - Law, 2004, p. 163.
  23. ^ The Differences between Collaborative Practice and Mediation. Retrieved October 18, 2015 .
  24. ↑ Hans-Georg Mähler, Gisela Mähler: Cooperative Practice - Collaborative practice / collaborative law , Zeitschrift für Konflictmanagement (ZKM), 3/2009, pp. 1-4
  25. ↑ Cooperative Practice - Collaborative Practice / Collaborative Law: A mediation-analogous procedure on the upswing. mediationaktuell.de, accessed on October 18, 2015 .
  26. ↑ Martin Engel: Collaborative Law , Mohr Siebeck, 2010, ISBN 978-3-16-150556-0 . P. 173
  27. ↑ International Peace Mediators and Codes of Conduct: An Analysis. In: Journal of Humanitarian Assistance. August 4, 2010, accessed May 12, 2018 .
  28. ^ Peace Mediation and Mediation Support. In: website of the Federal Foreign Office. Retrieved May 12, 2018 .
  29. ^ Initiative Mediation Support Germany: Basics of Mediation: Concepts and Definitions - Fact Sheet Series: Peace Mediation and Mediation Support. (PDF) Federal Foreign Office, February 2017, accessed on May 12, 2018 (English).
  30. ↑ EU Mediation Directive (PDF)
  31. ↑ Grunewald-Römermann, Commentary on the Legal Services Act, page 108ff, Verlag Dr. Otto Schmidt Cologne 2008, ISBN 978-3-504-06254-5 .
  32. ^ Website on court-related mediation in Lower Saxony
  33. ↑ a b Hans-Georg Monßen: Judge Mediation - The Justice as a Competitor in Judicial Mediation , pp. 293-308. In: Joachim Hengstl, Ulrich Sick: Right yesterday and today: Festschrift for the 85th birthday of Richard Haase (Philippika) , Otto Harrassowitz Verlag, 2007, ISBN 978-3-447-05387-7 . P. 294
  34. ↑ ( Page no longer available , search in web archives: Brändle / Schreiber, Betrifft JUSTIZ 2008, p. 351ff. )@1@ 2Template: Toter Link / www.betrifftjustiz.de
  35. ↑ ( page no longer available , search in web archives: final report on the justice model OWL ), on justiz.nrw.de@1@ 2Template: Toter Link / www.justiz.nrw.de
  36. ↑ Mediation at the court , website for court-related mediation at the AG / LG / OLG Cologne, accessed on December 9, 2019
  37. ↑ Internal court mediation: The use of "judges" ( Memento from June 20, 2010 in the Internet Archive )
  38. ^ Internal court mediation in the Bavarian social justice system
  39. ^ Mediation at the Saxon Higher Administrative Court
  40. ↑ Mediation - a way of amicable dispute resolution ( Memento from June 3, 2010 in the Internet Archive ), on justiz.sachsen.de
  41. ^ Jan Malte von Bargen, internal court mediation, Tübingen 2008
  42. ↑ Massive criticism of judicial mediation ( Memento from July 3, 2013 in the Internet Archive )
  43. ↑ Justice according to landlord style , on nrhz.de
  44. ↑ Härting, For a justice remote from mediation, AnwBl. 2007, p. 700; Spellbrink: Mediation in social court proceedings - building block for an irrational legal system, in DRiZ 2006, 88
  45. ↑ Hans-Georg Monßen: Judge Mediation - The Justice as Competitors in Judicial Mediation , pp. 293–308. In: Joachim Hengstl, Ulrich Sick: Right yesterday and today: Festschrift for the 85th birthday of Richard Haase (Philippika) , Otto Harrassowitz Verlag, 2007, ISBN 978-3-447-05387-7 . P. 306
  46. ↑ Judith Spalckhaver: Mediation as a service offer of the judiciary - competition law limits for the economic activity of the public sector . IDR 2004, pp. 80-85. Quoted from: Hans-Georg Monßen: Richtermediation - Die Justiz as a competitor in judicial mediation , pp. 293-308. In: Joachim Hengstl, Ulrich Sick: Right yesterday and today: Festschrift for the 85th birthday of Richard Haase (Philippika) , Otto Harrassowitz Verlag, 2007, ISBN 978-3-447-05387-7 . P. 306
  47. ↑ Heidelberg mediation project , on landgericht-heidelberg.justiz-bw.de, accessed on December 9, 2019
  48. ↑ Lioba Fricke: Judicial Mediation in Prison Matters: Evaluation of an Alternative Model of Conflict Management as a Qualitative Reconstruction of Experienced Effects. Hamburg 2013
  49. ^ Lioba Fricke: Judicial mediation in penal matters. In: MSchrKrim 2013, 371-381
  50. ↑ Guidelines for mediation and the use of interpreters, experts and other specialists in arbitration proceedings in accordance with §§ 14 ff of the Federal Equal Opportunities for People with Disabilities Act (DOC), Federal Office for Social Affairs and the Disabled - Ministry of Social Affairs. Retrieved August 30, 2019.
  51. ↑ What is mediation? , on the SDM homepage
  52. ↑ Homepage of the SKWM
  53. ↑ Sybille Kaufmann: Mediation according to Juvenile Criminal Law Art. 8 Website accessed on November 24, 2018
  54. ↑ "rebooting" the Mediation Directive: Assessing the limited impact of its implementation and proposing measures to increase the number of mediations in the EU. (PDF) European Parliament, 2014, accessed on October 11, 2015 . P. 163.
  55. ↑ Mutual recognition of the mediation associations. Retrieved March 22, 2015 .
  56. ↑ Master's degree in Mediation at the Viadrina European University
  57. ↑ Mediation training courses at the FernUniversität Hagen
  58. ^ Mediation training program at Heidelberg University
  59. ↑ Further education certificate studies at the Law Faculty of the University of Potsdam ;
  60. ↑ Federal Act on Mediation in Civil Law Matters. ÖBGBL. I 29/2003
  61. ↑ Information page on the list of mediators in civil law matters of the Austrian Federal Ministry of Justice mediatorenliste.justiz.gv.at
  62. ↑ Civil Law Mediation Training Ordinance - ZivMediat-AV (PDF; 117 kB)