Mediation – Practical Guidelines, Part 1: Basic principles and preparing for the mediation hearing

Mediation is a subject of much discussion, spurred by the legislative initiative at the EU level (Directive 08/52/EC) and the transposition thereof by national laws. There are now also a number of different ways to obtain training as a mediator.

But has mediation also made significant gains in terms of its importance in practice, outside the fields of law where it is traditionally employed (such as family law)? There is reason for doubt.

Why has mediation evidently not yet achieved the prominence in practice that it should be accorded in the interests of all concerned?

Successful mediation is not based on complex academic theory. Instead, it requires three things above all:

• logistical preparations for the mediation that are appropriate to the case, including appropriate preparation of the subject matter of the conflict;
• the specific craft of the mediator in conducting the discussion and leading the procedure; and, most important of all,
• an experienced figure who has the qualities required of a mediator: integrity, natural authority, engagement, determination, and creativity.

I.  Methodology: strictness versus variety

Article 3 of Directive 08/52/EC places the term “mediation” in quotation marks and defines it as any kind of voluntary attempt to resolve a dispute, “however named or referred to.” It is already apparent from this that there cannot be a strict methodology for mediation, but rather that the manner in which the attempt to reach a resolution is made is subject to the autonomy of the interested parties. Still, certain mediation principles have taken hold in doctrine and practice (especially the “Harvard concept”), so in simplified terms, the mediation process can be broken down into the following rough phases:

• Preparing for the mediation, including setting down rules of procedure, logistics, etc.

• “Opening” the mediation hearing, with an introduction to the basic principles and features of the mediation procedure, the facts of the matter, and the status of the dispute; under some circumstances, an informal meeting may be held ahead of time.
• Jointly working out all subjects in dispute from a factual and legal standpoint and otherwise.
• Jointly working out and identifying the actual underlying interests and needs of the parties to the conflict and their relative importance and significance to the respective parties.
• Jointly working out, in creative form, all theoretically conceivable approaches that might be taken to achieve a resolution, initially without evaluating or assessing them at the same time.
• Jointly working out all theoretically conceivable scenarios in which an amicable resolution is not reached, initially without evaluating or assessing them.
• Evaluating and comparing all of the identified scenarios in which an amicable resolution is not reached on the one hand and all possible approaches for reaching an amicable resolution on the other.
• Working toward realistic models of achieving an amicable resolution.

This methodological approach is just one of many, and it affords as much leeway as desired for specific emphases appropriate to the individual case. In principle, mediation can be used to address any kind of difference of opinion; only non-waivable law (i.e. questions of status) sets boundaries for whether a conflict can undergo mediation.

This paper cannot possibly address all of the challenges that can arise during mediation, nor is it intended to do so. Instead, it will focus on a few important aspects.

II. The “who, where, how” of a mediation hearing

Mediation’s eventual success or failure is determined to a large extent early on, during the planning and conceptualization of the mediation procedure.

Who is the most important point for the mediation procedure—that is, determining the size and composition of the parties’ representation. What are the crucial criteria when it comes to the question of who should participate as the parties’ representatives?

• Under no circumstances should there be too many people involved. The most reasonable number is between one and five per side. The delegations should be at least roughly the same size.
• There must be sufficient knowledge of the matter represented on all sides in the delegation, or this knowledge must be available to the delegation on short notice.
• There must be persons with adequate decision-making authority at the table. The level of the hierarchy above the one where the case is being handled and, if at all possible, decision makers from outside the legal department should also be represented. The main decision makers should be able to view each other as equals in terms of the corporate hierarchy, so they can talk to each other as equals as well.

Only if these conditions are met does the mediation have optimum prospects of success. A certain amount of distance from the matter itself and not having had too much prior involvement greatly enhance the parties’ objectivity in assessing their own prospects and risks. On the other hand, it is also necessary to ensure that the representatives are familiar with all matters and aspects that are favorable to their party and can bring them into the proceedings so that they do not agree to a solution that unreasonably disadvantages their party for lack of awareness of these points.

It should be pointed out that decision makers from outside legal departments often display a more pragmatic, more realistic view, basing their assessment on whether a potential approach to achieve a solution seems appropriate and reasonable on the whole rather than following a particular—and chiefly legal—analysis.

Each party should have as many representatives in the mediation procedure as necessary, but as few as possible, as the development of a relationship of mutual trust between those who are conducting the negotiations for the opposing sides (and, of course, between the parties’ representatives and the mediator) is critically important to the success of mediation. Without a certain level of mutual trust, it is much more difficult to talk about ways to bring the parties’ positions together or bring up possible scenarios to resolve the matter. This means that the mediator must keep these circumstances—along with interpersonal compatibility—in mind early on in the process, during the considerations regarding the determination of the parties’ representatives. It is easier to foster and build trust between a modest number of representatives of the parties than if there is a large delegation on each side. And it is not uncommon—in fact, it is quite typical—for final talks between just two or three persons to be necessary in order to overcome the last obstacles to achieving an agreement.

The mediator also needs to take great care with the aspects of where and how early on, reviewing where, in what physical setting, and on what schedule the mediation is to take place. Depending on the nature and subject matter of the dispute, a wide range of different concepts may be appropriate and promising in this regard. These outward circumstances must be appropriate to the complexity of the matter, the economic or other importance of the case, and the persons involved. Only if the critical persons on all sides view these conditions as being appropriate and comfortable is it possible to create a discussion atmosphere that permits and even fosters the building of trust between the relevant decision makers in a relatively short time—and without that, the prospects of successful mediation are poor.

Not every conflict justifies spending several days in negotiations in an exclusive, isolated location—but for complex, highly important conflicts, this kind of setting often gives rise to the best prospects of success. In other cases, the prospects of success may be greatest if it is possible to bring the final decision makers on both sides together in person, even if only for three hours at an airport hotel.

No two cases are alike. And yet, one common thread is that the participants should already perceive even the general framework of the mediation as representing more than just the logistical details of a business meeting. Deciding that one is willing to engage in a cooperative mediation procedure marks the first step toward achieving an amicable agreement; this is exactly where the mediator needs to meet the parties to the conflict and then bring them along by creating the framework for constructive talks in a spirit of mutual trust.

It is definitely possible, especially in large organizations and in the case of large-scale procedures, that not all of the parties’ representatives will feel that pursuing mediation is the right approach. They may interpret a push to achieve an amicable resolution as criticism of their management of the conflict so far, or, in the case of large-scale matters, they may even see an agreement as jeopardizing the main thing they have been working on (possibly for years), their “raison d’être,” or even their economic livelihood. This makes it all the more important for the mediator to strive to keep up the momentum formed by the decision to attempt mediation and try to bring all delegation members fully on board for the procedure.

In principle, therefore, mediation starts with a positive initial situation. Immediately launching directly into the process of working on the issues without allowing the persons involved to get a feel for one another beforehand should be avoided. If at all possible, the parties’ representatives should get to know one another first, without direct reference to the conflict. In this way, initial personal impressions are formed during discussion of general topics, not later on, during the discussion of the conflict, which is naturally contentious. Ideally, even the very first round of discussion of the facts of the matter will be less contentious on both sides if this is done, with a greater sense of partnership. Throughout the mediation hearing, one of the mediator’s key tasks is to remind all of the parties’ representatives to communicate in line with the cooperative principle behind mediation while putting a stop to any emerging signs of aggressive communication behavior in order to avoid jeopardizing the mutual trust that has been built—or to be able to establish that trust in the first place.

Setting down the details of who, where, and how in a mediation agreement may be a good idea, but it is not critically important. Rather it is important that a shared understanding on these points does exist or, even better, for them to be left up to the mediator.

Part 2 of these guidelines will address preparing for the conflict before the mediation hearing and the specifics of conducting the hearing as such.