IntroductionMediation is an extrajudicial conflict management method, in which conflicts are resolved by negotiation. The parties, her advisers and the neutral mediator mediator meet once or repeatedly, and try to resolve the conflict. The mediator heads and structures the negotiations. His job is to shape the negotiations as constructive resolution oriented as possible. He does not decide the conflict. This is up to the parties only.
Flow chart of a mediation
1. Opening- Clarification of the general framework
- Agreement of the binding groundrules
2. State of affairs- Obtaining the facts out of the perspective of all parties
- Legal assessment by the parties or her advisers
3. Interestsfinding- Obtaining the interests concealed by the positions taken
- Transformation of the positions into interests
4. Resolution- Obtaining of resolutions which meet the interests
5. Closure- Legally binding agreement
Interests vs. PositionMediation overcomes positional thinking and focuses the view on the hidden interests.
A position taken in a divorce mediation could be: " I demand my husband to pay me 10.000 €. " The opposing position of the husband would be " I am not willing to pay anything ". Positions are often mutual exclusive.
If you negotiate about positions, you often get as a result about the halve of the original claim. All parties are unhappy, because they did not get what they want.
Perhaps the wife wants to buy a car of the money, to take their joint kids savely to school. If she only receives 5000 &euro the amount is to small to buy the car she had in mind. The husband is even unhappy, because he does not comprehend why he should pay at all.
If you focus on the hidden interests of the wife, their might be a manifold of resolutions: The wife keeps the old family car, the couple rents a new apartment for the wife which lies in the neighbourhood of the school, the husband pays the monthly interests of the new car.
Creative resolutions, all parties can agree with!