Besondere Herausforderungen in internationalen Mediationen

Mediation über Grenzen / Cross-Border Mediation
Besondere Herausforderungen in internationalen Mediationen

Prämediation – Definition, Werkzeuge, Besonderheiten

Cross-Border Mediation, Online Publikation, Wolfgang Metzner Verlag GmbH

 

 

 

Sie haben eine Mediation mit Beteiligung ausländischer Medianden?

In unserer stetig wachsenden Online-Publikation Mediation über Grenzen / Cross-Border Mediation  finden Sie die gesetzlichen Regelungen und wichtige Hinweise zur Anwendungspraxis von bereits mehr als zehn Ländern.

 

 

Neben der Kenntnis der für die beteiligten ausländischen Medianden relevanten Mediationsgesetze setzt jede internationale Mediation auch besondere Kenntnisse um die spezifische interkulturelle Situation voraus.

Dr. Wilfried Kerntke ist langjähriger Mediator und hat vielfältige Erfahrungen mit internationalen Mediationen gesammelt.

Lesen Sie hier seine praktischen Tipps zum Thema »Premediation«.

1. Definition

  • Before you can start the actual mediation process, the parties need to agree that and in which way they want to settle their conflict by mediation. This agreement is honored in its own document, which, to some extent, binds the parties and the mediators to commit them to one and the same process.
  • Premediation is a term to include all efforts taken to elaborate, in a process of arranging with those who are potentially concerned, wether, with whom, about which conflict and with what objective there is to be a mediation – and to prepare for putting that mediation in practice.
  • The professionals who guide the premediation are not necessarily the same ones who will guide the mediation process.
  • In stead of the term Premediation, sometimes we talk about Process Providing or Process Procurement.

2. Premediation in Cross-Border Conflicts

Sometimes, premediation is very short and seems almost non-existent, because the parties and the mediators agreed so rapidly that and how they will do the mediation. Sometimes, a pre-mediation is a process that takes months or even years. Just think of the efforts taken by the Norwegian government to prepare a mediative process between Tamil and Sri Lankan Governement bodies. Premediation includes to check on and to foster the parties' willingness to participate in the mediation, as well as the participative selection of who may represent the parties. The same is true for the premediation arranged to allow negotiations about the planned enlargement of Zurich Airport. It took about one year.

In cross-border conflicts the border is seen as a border of some significance – unlike, let's say, the border between two municipalities, which, for much of the conflicts, will nowadays not have significance.

Cross-Border Conflicts usually require particular efforts to bring the parties together and to create an adequate setting for the mediation. Adequate means adequate for both parties and for the purposes of a realistic and economically affordable process guidance.

Particular challenges lie in: How to bridge the language barrier? How to bridge the gap in geographic space? And how to build a co-mediating team that will be accepted by both parties? The differences in the legal background in both countries become less important with the progress of European Law.

In a mediation with parties whose physical distance is small (i.e. with parties located in the same region), mediators may prefer to explore the interests of the parties in the joint parts of the process. With CBM, the joint parts are so much more costly (translators, hotel accomodation etc.), that we would like to see clarified with single parties whatever can be clarified with them.

3. Unity of values and logic

As you may already have guessed, what has to be arranged between the parties before the mediation, is very much a parallel of what will have to be arranged between the mediators, and vice versa. Both systems, the parties and the mediators, are part of the conflict resolution system, and they both are subject to its logic as well as to its values.

The Premediation process requires mediative skills, multipartisanship and openness as to the end of the process on the side of the mediators, and voluntariness on the side of the parties. The premediation for Zurich Airport, done correctly, concluded with the result that there will be no mediation. This may seem hard to swallow, but it is absolutely on the line of logic of mediation. If one of the parties decides that it will not take part in a process that really requires their participation, then there will be no mediation.

4. Tools for the premediation

  • Participative Diagnosis of interests, through a short workshop with all those concerned within one party, or through a short series of private sessions with single persons within one party.
  • Shuttle Negotiation through the Communication link between the two mediators:
    Mediator A' negotiates conditions for mediation with party A, communicates first options to Mediator B', who then negotiates with party B on that basis, and then communicates with Mediator A' and so forth, until the conditions are clear.
  • Scenarios with different sets of assumptions: »How will things go on if ...«
  • Exploring BATNA (Best Alternative to a negotiated – i.e. mediated – Agreement) and WATNA (Worst Alternative to a negotiated Agreement).

5. One example

The Situation. A Car Maunufacturer in Germany and a Manufacturer of specialized parts in Italy for that car have a dispute over insufficient functionality of the parts that were delivered (that's the German companie's view), and over incorrect withholding of payment (that's the Italian companies view). The Italian company asks their lawyer – a lawyer-and-mediator – to mediate between them and the Germans.

Building the Co-Mediation Team. The Italian mediator approaches a German mediator, whom he has previously met in a conference, and offers him to cooperate in this case. In a series of phone calls, the two mediators come to terms about the following issues:

  • Logic of proceeding: The German Mediator will approach the German company, introduce himself and offer services. The service includes that the mediators will spend one day with staff of the German company to help them explore their interests and thus foster their decision for or against mediation. Together, the two mediators will give the same service to the Italian company, who is very willing to receive it.
  • Once the parties both decided to take part in the mediation, the mediators will ask them to suspend all juridicial measure for the duration of the mediation. This is needed to give enough space to the mediation process. Both parties, of course, have legal advice from their lawyers – otherwise the mediators will strongly recommend to them to get legal expertise individually.
  • Place for the Mediation: The Mediators will suggest a hotel with conference facilities in Switzerland, halfway between the locations of the parties.
  • Language: While in the premediation, the two mediators will work with what they have in language skills (both speak Italian, but only the German speaks German), for the actual Mediation they will arrange to get (consecutive) translation through a young fellow mediator who is fluent in both languages. This is to make sure that both parties will feel fully recognized through a high amount of procedural justice.
  • Fees: The parties will contribute to the fees 50:50, while the mediators will split them 55:45 in advantage of the Italian, who brought the client.
  • Mediation Contract: To conclude the premediation process, the mediators will present a draft contract to both parties. It summarizes the most important points that have been agreed between the parties (except on how they devide the fees amongst themselves) and makes sure for confidentiality.
  • The biggest point, in this entire premediation process, will be to empower both parties fully for the mediation. Other profiles can easily be imagined – but the empowerment of parties is certainly a main objective.


Premediation has a potential counterpart in Postmediation – which is about making sure for the stakeholders to support what has been agreed between the parties, and sometimes about triggering organisational change in order to make sure that the same kind of conflict will not happen again and again simply because it was rooted in the structures of the organization.