The Search for the Phantom: Success Factors to Establish Mediation

By André Niedostadek. Today it’s the first anniversary of the German Mediation Act (“Mediationsgesetz”). Congratulations! Unfortunately the joy is tempered slightly. Although mediation has been discussed for ages, the attempts to establish mediation have not worked yet. Of course there are a lot of mediators and there is a lot of training too but nevertheless mediation doesn’t seem to be widely accepted. Working as a mediator is neither a real profession. And – from a comparative point of view quite interesting – it seems that there is a similar situation in other countries. One may get the impression: Is mediation dead? Has it ever been alive?

Of course one can analyse the reasons for this. But like in mediation it is by far more interesting to look into the future and address the following question: What is necessary to establish mediation? This leads to other questions: Is it perhaps a certain legal framework? Is mandatory mediation at least the road to success? Do we need a specific cultural attitude? Or do we just have to wait (like constant dripping wears away the stone)? It’s like searching a phantom.

To address these questions here in the Comparative Mediation blog means that maybe we can learn something from a comparative perspective. So if you do know any “success stories” from other countries where mediation is already an acknowledged approach (at least in specific areas) and – first and foremost – if you do have an idea about the success factors it would be interesting to share these findings. Any comments?

6 thoughts on “The Search for the Phantom: Success Factors to Establish Mediation

  1. Dear André, your posts are always interesting. This, then, is very interesting because it touches the heart of the problem. According to my humble point of view, the old Europe, will struggle a lot to have an ADR system worthy of the name. The first problem in my opinion is cultural, I call it the attachment to “curial view of law”, and it has ancient roots. It produces legislative framework that rather than innovate, adds extra weight to the judicial system, meanwhile ditchings mediation as an alternative to the “avversarial judicial system”. I believe that the road to success is in the “Programs”, on the example of the Americans; in not compulsory; and in the mandate to mediate, freely chosen by the parties.

  2. André your question, as Carmine said, touches the heart of the problem. In my opinion, is imposible find only one answer, which solve so deep matters.Its a combiantion of factors. Of course, as Carmine said , the cultural is a non visible but strong factor. I can see that in my dayly pacticse like a mediator lawyer in Argentina. I would like to add another question: How many people truly know mediation system, its advantages, disadvantages, characteristics, duration, etc?-

  3. Pingback: Mediator – Do you want to become a mediator? | Mediator – Do you want to become a mediator?

  4. Dear Carmine: I’ve been reading the article about mandatory mediation in Italy. And I think its important to work incorporate the “mediation culture” in countries where mediation is not a concept fully incorporated . Just to start that work, mandatory mediaton could be beneficial. At least, many who do not know, nothing about mediation, could discover something. All this, without talking about success or failure. Best regards , Virginia

  5. @Virginia: Thanks Virginia. I really appreciate your comment. I agree with you. Mediation, in my opinion, is above all a cultural attitude and is deeply connected with our will to contribute to the achievement of peaceful coexistence and respect for diversity. Thank you again!

  6. Dear André and the preceding commentators: This is a very interesting discussion to which I can add a few comments from an Australian perspective. We share many of the observations Carmine made in his earlier article. Mediation has been introduced here initially to alleviate some of the courts’ loads, But it is also practised fairly widely in other public and private sector organizations, outside of the legal framework, where it is suggested not mandated, often by HR staff who call in professional, independent mediators. I don’t know whether this is common in your countries as well? I conduct mediations within the Higher Education system, such as universities, where disputes between staff members, staff members and students, etc. are quite common. There are different professional bodies in my country that teach mediation, and my association strongly emphasizes process, mutual respect, and independence. The main idea is that the dispute is not “owned” by the mediator but the parties. A good thing to keep in mind at all times!

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