Mediation (common law)
The mediation as a structured process for the voluntary settlement of the conflict has developed differentiated world. This particular article covers - in relation to Germany - mediation in Australia and many other English-speaking countries that use common law .
description
Especially in the Anglo-Saxon legal system (Common Law - especially USA and Commonwealth States), mediation is also used successfully in large disputes in business life (success rate over 90%). The technology used differs considerably from the usual procedures in Germany:
Depending on the situation, the mediator also takes on the role of the advocatus diaboli . Negotiations with the parties take place separately in so-called caucuses or private sessions , which are strictly confidential. The mediator will not pass on any information to the opposing party without express permission. The mediator alone decides whether and when to pass on information that he has been authorized to pass on. Although this mediation process is also a non-binding process, in the vast majority of cases it ends with a legally binding agreement. A special form is the mediator at the end of a mediation, in which it has come to an agreement, a judge in an arbitration proceeding (Engl. Arbitrator ) shall be appointed, who then announced the agreement as an internationally enforceable judgment. The mediators are also referred to as QDR ( Qualified Dispute Resolver ) and are certified by The Academy of Experts , London, for example .
practice
The technology used by the QDR (Qualified Dispute Resolvers) differs significantly from that used in family or work disputes in Germany. The contending parties speak practically exclusively in personal conversations with the mediator. The mediator constantly changes between the two parties, who do not have to hear a single word from the other side during the entire mediation. The mediator negotiates as the "advocate of the devil" with each party separately. If, as in over 90% of cases, an agreement is possible after a few hours, the parties are called together to conclude an agreement directly. You definitely don't give them the chance to change your mind.
As a special form, the mediator can be appointed as a judge (arbitrator) in arbitration proceedings at the end of the mediation if an agreement has been reached. Whereby he then only receives the express mandate to proclaim the solution that has just been decided by the parties in a legally internationally enforceable manner. This procedure is particularly suitable for international disputes where different legal systems collide. The mediators are often experts who can cast enough doubt into the success of a judicial dispute so that the out-of-court settlement that all parties can live with is quickly found.
In Australia, mediation is probably the dominant approach in ADR. This applies in particular to the corporate and economic sector, but mediation is also often the first choice in private law disputes if a dispute cannot be resolved without the involvement of a third party. ADR - the acronym that used to stand for Alternative Dispute Resolution to differentiate it from judicial disputes - is now understood as Appropriate Dispute Resolution, i.e. the appropriate, appropriate procedure for dispute settlement. In some cases, Legal Aid , the state legal aid, which can include legal advice as well as legal representation, is made dependent on whether an attempt to reach an amicable settlement has been or is being made, in particular in the context of mediation. There are even legal regulations that make the right to bring an action dependent on an attempt at a prior amicable, extrajudicial settlement and this - not limited to the minor area - as in Germany according to § 15a EGZPO. The federal regulations of the family court procedure require that the legal advisers expressly advise the parties on a mutually agreed settlement and that the parties make genuine efforts to resolve their dispute amicably and in particular to participate in a procedure such as mediation.
There is a diverse spectrum when it comes to mediation service providers. In conflicts of an administrative and social law nature, the decisions of the so-called tribunals are usually preceded by a mediation-like procedure. In contrast, there is hardly any in-court mediation by “judge mediators”, but rather is largely viewed as incompatible with the role of the judge. In Australia, however, judges have the power to recommend or even order mediation under almost all procedural codes, which is often used. The case is then usually referred to a judicial officer (registrar) working at the court, an external listed mediator or a state-funded mediation program. The State Ministry of Justice in Queensland, for example, has its own department, the Dispute Resolution Branch (DRB), as an alternative to court proceedings in a nationwide program that provides largely free access to mediation. Originally, this was designed for conflicts in the immediate social area, i.e. neighborhood disputes or conflicts in the family, especially due to separation and divorce. It is a state-financed and nationwide organized program, but conceptually comparable to non-profit settlement and arbitration bodies (Community Justice or Dispute Resolution Center). Today the DRB offers mediation in almost all civil and labor law disputes. In particular, the so-called commercial mediation, i.e. disputes in the context of business life and trade, are now the most extensive work area in quantitative terms. Heavily used - v. a. Due to a new guideline on behavior in the workplace, government and other public bodies are also offering the “mediation in workplace disputes”, which is the only one that is chargeable. But here too, the cost of mediation is very low at $ 125.
In addition to the mediation programs financed by the respective Ministry of Justice in other Australian states such as Victoria or New South Wales, there are now in many systems, i.e. in administrations, institutions, organizations, associations and companies internal, “in-house” ADR offers that are called “integrated” Mediation “could denote. These complaints and arbitration offers are not limited to mediation and vary widely in quality. However, they contribute to the fact that the term and procedure of mediation are well known and widely accepted everywhere. In the meantime, as elsewhere in English, a consulting industry has developed under the term conflict management design that wants to advise (and earn) on the choice of the appropriate conflict resolution strategy or is active in the context of the conception and implementation of conflict resolution processes in companies.
In addition, there are - quite comparable to Germany - a number of organizations that can be described as independent organizations that offer mediation for specific fields of work and are partially refinanced with grants from public authorities. One of the best-known organizations is, for example, Relationships Australia , which is active in the field of family mediation . And finally there is an army of freelance or commercial mediation providers, but only a small group of particularly experienced and well-known people can make a living from mediation.
literature
- T. Trenczek: Mediation down under. In: Spectrum of Mediation. No. 26, 2007, p. 57 ff.
- T. Trenczek: Status and future of mediation - conflict mediation in Australia and Germany. In: Arbitration VZ. (German Arbitration Journal) 3/2008, p. 135 ff.
Individual evidence
- ↑ Trenczek, T .: Mediation down under, Spectrum of Mediation 26/2007, p. 57 ff.