Resolving disputes
Mediation
A third person guides the conversation and decides nothing. That is precisely why the result tends to hold afterwards
In numbers
5
phases in the procedure
from setting the terms to the agreement
0
decision-making power
the mediator has none, by law
2012
Mediation Act in force
since 26 July
- Origin
- Regulated in Germany by the Mediation Act of 26 July 2012
- Where it is used
- Family, workplace, neighbourhood, business, environmental and building projects
- What it takes
- Several sessions over weeks, voluntary and abandonable at any time
- Third party
- An impartial third person with no power to decide
What is mediation?
The German Mediation Act defines mediation as a confidential and structured procedure in which the parties, with the help of one or more mediators, voluntarily and on their own responsibility seek an amicable settlement of their conflict.
The mediator is independent and neutral and has no power to decide. They guide the procedure, make sure both sides are heard, and propose no solution they could then impose.
That sets mediation apart from every procedure in which somebody decides: from a court, from arbitration, and from a manager settling the matter. The parties stay responsible for the result, which is both the strength of the procedure and its precondition.
How does a mediation run?
In five phases: setting the terms, collecting the topics, clarifying the interests behind them, looking for solutions, putting the agreement in writing. The order is not decoration but the core of the method.
The third phase carries the procedure. As long as two sides speak in positions, there is usually a choice between two outcomes. Once the interests behind them are on the table, solutions appear that were not visible before.
A mediation usually runs over several sessions across weeks. It is voluntary, either side can end it at any time, and what is said stays confidential. Those three conditions are why things are said in a mediation that nobody would say in court.
When does mediation fit?
When the parties will go on dealing with each other. Separated parents, neighbours, colleagues, business partners, club boards: a judgment ends the case, not the relationship, and a result both sides carried holds longer in daily life.
It also fits where the matter itself cannot be fully decided in court. Courts decide questions of law; a large part of what people argue about is not a question of law.
And it fits where confidentiality has value. A public procedure produces positions that are hard to clear away afterwards, because somebody heard them.
Where are the limits of mediation?
The most important limit is an imbalance of power. Mediation assumes both sides can state their interests openly. Where one side is dependent, intimidated or affected by violence that is not the case, and a result that merely looks voluntary would be none.
The second limit is voluntariness. Whoever does not want to, need not, and nobody can be obliged to agree. The procedure can end without a result, and then time has passed without anything being decided.
The third limit concerns questions of principle. Where a point of law has to be settled because other cases depend on it, a judgment is the right instrument. Mediation settles one case; it creates no binding interpretation.
How do you start with mediation?
With the question whether both sides are open to it in principle. Proposing mediation is itself a signal, and it is more likely to be accepted when it does not have to be read as a concession.
Then comes finding a suitable person. In Germany the title of mediator is not protected, while certified mediator is tied to training under a regulation. Professional associations keep lists, and courts and consumer bodies also refer people.
For smaller matters there are lower thresholds: municipal arbitration boards, conflict offices of associations, trained peer mediators in schools. Not every dispute needs a formal procedure, but every one benefits from an orderly sequence.
The core
Whoever found the solution themselves does not have to enforce it against themselves. That is the whole difference from a judgment.
Sources
The steps
- Set the termsBoth sides settle with the mediator what the dispute is about, how the procedure runs and what rules apply. Voluntariness and confidentiality are agreed here, not assumed later.
- Collect the topicsEach side names what belongs to the matter. Everything is collected first and without judgement, so that nobody can say afterwards that their concern was never raised.
- Clarify interestsBehind every position comes the question of what it is actually about. This is the step where the task often changes, because interests exclude each other less often than demands.
- Look for solutionsOnly now are options collected, first without evaluation and then examined. The order is deliberate: evaluating too early produces fewer options.
- AgreementThe result is put in writing, concretely enough for implementation to be checkable. Who does what by when, and what happens if it does not happen.
More in this series
- Peer mediation in schoolsSchools, youth work, leisure facilitiesPupils mediate between their peers, by fixed rules and without a teacher at the table. It works better than it first sounds
- The Harvard methodNegotiations of every kind, from pay talks to a neighbourhood disputeNeither hard nor soft but focused on the matter: four principles meant to turn a contest of wills into a shared task
From a procedure to a mission of your own
Every one of these methods was developed by people who had a dispute in front of them and wanted to handle it differently. The same stance is what it takes on a small scale: in a neighbourhood, a school, a club.
Find your peace mission