What is Mediation?

Mediation is a structured procedure in which two or more parties in a conflict are supported by an impartial third party to best realise their interests, to constructively work through the causes of their conflict, and to determine common ways for the future. The mediator takes on responsibility for the fairness of the process while the parties retain their responsibility for the outcome. The basic idea underlying mediation assumes that all involved are sufficiently competent and autonomous to find out an appropriate way to treat their own conflict – not necessarily a solution! A solution arrived at on this basis is preferable to one imposed from without because it leaves less conflict matter on the table and establishes a sounder foundation for the (inevitably) common future.

With the procedure s/he offers a mediator can still help, where a conflict threatens to escalate into litigation. Such mediation procedures may deal with the continuance of employment, mutual damage claims, or even criminal charges. Accordingly, the participation of attorneys is not only permissible, but occasionally desirable. Often though, the mediation process is more focused on an organisation's modalities for co-operation between individuals or teams, so that legal aspects do not become dominant.

The mediation process is oriented towards interests rather than claims. Therefore everything that is or should be lying on the table can be addressed. Issues which do not immediately form grounds for a claim are not easily addressed in a law suit or its preliminaries. By contrast attorneys are obliged to dwell extensively on peripheral questions if that is where a claim can be won. Anyone can see that in preparation for litigation new problems will be created that played no role before whereas significant questions remain untouched.

Compared to other conflict resolution methods, mediation is characterised by the greatest conceivable party autonomy. This means at any stage the procedure is voluntary and the outcome is only dictated only by the interests of the parties – obviously within the confines of legality. The mediator is neither judge nor arbitrator who hands down his own decision but rather the one who has the experience to help the parties in restoring constructive communication between each other to the extent necessary to formulate an appropriate solution. Of course, the mediator can also assist in phrasing it, as long as s/he ascertains that it is indeed the mutual solution of the parties.

All parties have opportunity to present and discuss the pertinent facts from their own perspective and the legal questions where relevant. This means that all parties have the right to be heard. Together with the impartiality of the mediator this guarantees the basics of due process.

To the extent to which the interests of those involved coincide, which in the course of a mediation is surprisingly often discovered to be the case, it will be relatively easy to formulate a solution. Where they don't match, through the support of the mediator, the creativity of the parties in treating the problem (e.g. enlarging the cake before slicing it …) will be set free. The challenge is to identify one or several common denominators. The mediator develops no ambition for or against a particular solution. However, he keeps an eye on reaching a result within acceptable bounds of time, money, and energies. From the mediator's point of view, a result is ideal when both sides are able to identify, when they have more than before, and where nothing is left on the table. Of course, this means one acceptable outcome can be to leave an issue rest (temporarily). What this means, should however be clear and defined. Where taboos involved, they should be addressed as such.

Björn Rohde-Liebenau has been active in this field for more than 15 years. Licensed as a mediator by the German Association of Business and Labour Mediation (BMWA), and holds a degree as European Master in Mediation from the Institut Universitaire Kurt Bösch (IUKB), Sion, Switzerland. In addition to business and labour mediation he has special expertise in the areas of international and intercultural mediation as well as with online mediation.