29. April 2013
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«.
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
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: