What is mediation?
Mediation is an informal, but structured settlement procedure. A mediator is employed to facilitate and assist parties in reaching an amicable dispute settlement.
The main characteristics of mediation are that it provides; a voluntary, non-binding, confidential and interest-based procedure. Parties are free to terminate mediation at any time after the first meeting. No decision can be imposed on the parties involved, and they may or may not agree upon a negotiated settlement. The confidentiality principle assures that any options the parties discuss will not have consequences beyond the mediation process. Interest-based procedure means that the criteria established to reach resolution does not solely adhere to the law, instead it can include considerations concerning financial, business and personal interests as well.
The role of the mediator is to assist the parties in reaching a negotiated agreement. Unlike an arbitrator, the mediator is not a decision-maker. In a facilitative mediation, the mediator merely assists the parties in their communication and negotiations. In an evaluative mediation, the mediator also provides a non-binding assessment of the dispute.
In general, mediation can be applied to all sorts of disputes. One of the main benefits of mediation is that the parties can agree to take into account a broad range of aspects, especially concerning commercial and business interests. The process is flexible and can be tailored to the individual needs of parties. However, mediation might not be the right instrument to resolve a dispute, especially if for example; the parties are in need of a precedent, or if one party seeks public vindication, or if one or both parties require a neutral (legal) opinion.
As of today, mediation proceedings in Germany are not governed by a specific regulatory act. Therefore, the parties are basically free to set up rules as to how the mediation should be run.
In practice, most mediators will be prepared to assist the parties in this process by proposing a set of rules which the parties may accept or adapt. If the parties have agreed on mediation proceedings administered by an institution, for example, the Mediation Centre for Business Conflicts of the Hamburg Chamber of Commerce, the institution provides the parties with a set of rules which the parties may accept or adapt.
In general, the majority of mediation proceedings follow these steps:
To begin with the parties will establish an agreement where they agree to try and solve their dispute by means of mediation. This is the so-called "mediation agreement". The agreement can be decided upon either before or after the dispute has arisen. Several institutions offer so-called "model clauses" for these agreements.
The parties must choose a mediator. In Germany, the term "mediator" is not a legally protected term, hence the task is to find a person who displays the qualities required to assist the parties in solving their individual dispute. There are several institutions able to assist the parties with this selection. Some of them publish lists of trained mediators on their websites which may or may not indicate individual competences and experience of the listed persons.
Once established the main function of the mediator is to guide the parties through their dispute issues as a means of gaining a satisfactory resolution.
The decision to settle or not to settle the dispute will always remain in the hands of the parties. If the parties reach an agreement, a contract is usually written up outlining the terms of agreement.
Lawyer, Attorney-at-Law (N.Y.), Wirtschaftsmediator (IHK)
BAUMANN Resolving Disputes
Lawyer and arbitrator
ARNECKE SIBETH DABELSTEIN
Rechtsanwälte Steuerberater Partnerschaftsgesellschaft mbB
Rechtsanwalt, Solicitor (England & Wales)
L2C Rechtsanwälte Wirtschaftsprüfer Steuerberater
Mediator, Arbitrator, Trainer
Institut für Mediation, Konfliktmanagement und Ausbildung (IMKA Hamburg)