What is Mediation?
Mediation is a voluntary, confidential dispute settlement process that involves a neutral third party: the mediator. In contrast to other proceedings, with mediation, it is the parties, or mediatees, who control the proceedings. The mediator ensures structure and fairness, as well as compliance with the agreed rules.
The goal of mediation is efficient and long-term dispute resolution in order to prevent the real costs of a dispute, such as psychological stress, and loss of one's time to live, one's management time and creative powers.
Prof. Dr Frank Diedrich is a founding member and first chairman of the Institute for European Mediation and Arbitration (IEMS), which was founded in 2010. The institute deals in a cost-efficient and practical way with alternative dispute resolution, including mediation, and has international and intercultural expertise in mediation.
The subject of mediation ranges from internal company and economic disputes to private disputes, such as with regard to family, inheritance and matters among neighbours. For mediation, it is important to come to a neutral, protected place away from where you work and live. In such a place, confidentiality and secrecy are guaranteed for all parties.
Regardless of how advanced a dispute is, mediation can bring it further, because any dispute is suitable for mediation if one engages with it.
What Does the Mediation Process Look Like?
Mediation is carried out in a protected, confidential room. In addition, all parties involved conclude a confidentiality agreement at the beginning. Mediation according to the rules of the IEMS then begins with a preliminary discussion in which the mediator clarifies the framework conditions and determines the level to which the dispute has escalated. The further procedure is then agreed upon accordingly, in consultation with the mediatees and on the basis of the mediation agreement. Usually, this consists of several confidential meetings. The parties define their concerns autonomously, with the mediator acting as an intermediary and ensuring fair proceedings in an impartial manner. The contestants can freely develop solutions on their own accord that go far beyond what a judicial process can offer. At the end of the mediation process, one ideally finds a solution that is tenable for all mediatees and that can be recorded in a legally binding final agreement. Particularly when it comes to parties that are ultimately dependent on one another and striving for a long-term, mutually beneficial solution, mediation is a highly efficient process with results that often produce positive astonishment.
Additional Arbitration Processes
In addition to mediation, there are a large number of other processes, some of which can also be combined with mediation. These include conciliation, in which the parties elect an independent person whom they trust and who makes suggestions for resolving the dispute. A conciliator does not need to have any special qualifications.
In addition, there is arbitration – especially for commercial disputes – in which an arbitrator is chosen by the parties or by an institution such as IEMS.
Arbitration proceedings are the most similar to proceedings in court; the neutral arbitrator sets deadlines, takes evidence and can issue a final arbitration judgement (arbitration award), which can be enforced with judicial assistance; there is no appellate authority here. As long as the parties are in agreement, mediation can turn into arbitration and also become mediation again.
Then there is the conciliation judge, who, as a specially trained judge, offers a type of mediation, but is not involved in the current court proceedings. In order for a conciliation judge to be able to act, civil litigation needs to be initiated.
In addition, there are arbitration experts who are determined by the parties and who make final decisions on certain factual issues. The arbiter, in turn, is an institution at the municipal level that primarily tries to mediate in neighbourly disputes.
There are ombudsmen in various industries, such as in insurance and banking, and they offer a voluntary form of dispute resolution between customers and companies.