Mediation in professional life

Problems and conflicts in professional life

Conflicting interests in professional life are often the cause of problems and disputes within a company. Differences in attitudes, lifestyles and behavioral patterns can harbor considerable potential for conflict. This can be a concern for employers and employer associations, as well as the works council or trade unions involved. Individual staff-members and managers, groups of employees or even the entire staff may be affected. Countless labor court disputes are the result of such a working environment. Yet the company itself will also face an immense workload as a consequence. Company-internal conflict management comes at a high price.

Models of conflict resolution

Unilateral resolution methods – such as allowing conflicts to run their course, overlooking them, or even giving in – are unproductive in the long-term. Active approaches, on the other hand, are more likely to garner success by including the conflicting parties in order to reach a decision. These approaches include negotiation processes such as mediation. When conflicts in the workplace escalate, a third person or legal instance, i.e. an arbitration board or the labor court, is usually invoked.

If conflict resolution is delegated to a third party, e. g. a labor judge, there are often significant limitations. The conflicting parties relinquish a considerable degree of personal responsibility and ability to influence outcomes. Frequently, this bars the path to a level-headed and comprehensive resolution that could prevent further unnecessary disputes.

In contrast, mediation opens up a wide variety of possibilities for shaping outcomes. The conflicting parties personally determine which method they wish to use, where they would like to set the limits to the dispute, as well as the costs and timeframe of the resolution process.

The ideal conditions for negotiations between two or more people are as follows: The parties should be able to act autonomously and not be under any pressure. Their actions should not be influenced by emotions. They should behave fairly, not attempt to manipulate, and concentrate entirely on factual and solution-focused negotiations. The perfect environment for negotiations is one where all parties are on an equal level, and where there are no external interruptions.

Opting for a mediation process is advisable when it has not been possible to reach a resolution to a conflict, despite genuine efforts to hold appropriate and cooperative negotiations. Getting a third party involved, be they a judge or a mediator, can be a helpful step if the conflicting parties are unable to maintain the necessary emotional neutrality, to overcome power imbalances, or stick to productive negotiation structures.

A mediator – a third party who is obliged to consider the interests of all parties – is able to smooth the path towards an appropriate outcome to negotiations. The mediator structures the negotiations, aligning them with the needs of the conflicting parties, while ensuring fair treatment between all parties. The assistance of a trained mediator also makes it possible to establish the causes of the conflict, and thereby learn lessons for the future.

Legal recourse or negotiations/mediation?

Legal recourse is preferable if:

• a legal claim is (practically) incontestable, i.e. the entitled person has a very favorable Best Alternative to a Negotiated Agreement,
• relations between the conflicting parties have already escalated and there is a high degree of animosity,
• a conflicting party has more confidence in a neutral judge than in their own negotiating power,
• or the subject-matter of the negotiations is so complex and problematic that a judge is preferred as an arbitrator.

A vast number of out-of-court settlements and court settlements reached with legal representation show that negotiations with legal assistance are a highly successful method of conflict resolution.

Mediation, however, can play an even more constructive role, as expertise from communications and conflict research are used in finding solutions. This often provides a far better way to achieve objectives than a legal settlement. The most notable advantages of mediation are:

• Arriving at a “win-win solution” where there is no victor or loser
• Improving the conflicting parties’ ability to settle disputes, and analyze problems and solutions, as well enhancing skills of social communication and managing emotions
• Demonstration of ways in which life goals and normative beliefs can be harmonized with each other in an intelligent and productive manner
• Through the mediation process, the conflicting parties gain greater self-awareness and knowledge of the other parties involved, as well of their motives and reasons for particular action
• Establishment of a new culture of social interaction and social discussion

The mediation process

Mediation is an out-of-court method of conflict resolution involving a neutral third party, who is obliged to consider the interests of all involved. This mediator has no decision-making power, but provides parties with assistance in developing solutions on their own authority. The process comprises six stages:

• Stage 1: Contracting and conclusion of a mediation agreement
• Stage 2: Gathering information on the conflict and drafting a list of the issues to be dealt with
• Stage 3: Conflict examination – Exploring the interests and requirements behind each stance
• Stage 4: Searching for and developing possible solutions
• Stage 5: Assessing and selecting possible solutions
• Stage 6: Final agreement

Basic principles of mediation

The following basic principles apply, irrespective of the type of conflict or the mediator’s working method:

• The mediator is neutral and “all-partisan”
• Confidentiality among all participants
• Procedural responsibility (of the mediator) over responsibility for results (of the conflicting parties)
• Suspension of legal proceedings during mediation
• Voluntary participation in mediation
• Willingness and ability to conduct open and respectful communication
• Professional attitude of all participants

Legal framework for the mediation process

In July 2012, the German Mediation Act came into force with the aims of: settling conflicts as amicably as possible, creating a new culture of conflict resolution, and avoiding drawn-out and expensive legal proceedings. The Act largely governs the role, task and level of qualification of a mediator:

• The mediator is an independent, neutral person with no decision-making power, who guides participants through the mediation process.
• The mediator is obliged to maintain confidentiality concerning all information revealed during their professional activities.
• The mediator must ensure that they possess all skills required for guiding the conflicting parties through the mediation process in an appropriate manner.

My qualifications as a mediator

Throughout many years as a leading personnel manager with international responsibility in companies from a variety of industries and sectors, I have gained extensive knowledge and experience of company conflicts, conflict management and mediation. This has enabled me to discover which approaches and solutions lead to success. My work as an attorney specializing in labor law has also led me to the conclusion that tackling conflicts through legal action alone often fails to meet clients’ needs. In my extensive practice as a personnel manager, mediation has proven itself to be a valuable addition to the range of legal instruments available for conflict resolution. I have continually enhanced my skills in this field through a variety of in-depth further training programs. I am a recognized mediator with the Celle Bar Association (Rechtsanwaltskammer Celle), and a recognized business mediator with the German Legal Academy (WirtschaftsMediator DAA). In addition, I also attach great importance to regular further training in the area of labor law, such as on Mediation in Businesses in Cooperation with the Works Council, or Basic Principles of Communication Psychology for Negotiations.