Conflicts, controversies and frictions appear in all areas of life. In light of its proven advantages mediation lends itself to dispute resolution particularly in the following sectors:
Partnership, Marriage and Family
Emotions and deeply felt sentiments are the reasons for the conclusion of marriages, partnerships and families. If these feelings are hurt, such personal relationships are threatened to fail. Silence, disappointment and aggression dominate everyday life. Quarrels about pension rights and alimony, the division of patrimony or custody issues prevent constructive solutions. Very often these disputes are fought at the expense of the family wellbeing of the children.
Mediation leaves room for the venting of emotions, but does not block the view for reasonable resolutions for the issues at stake. In the course of the mediation, the couple conflict is no longer the main focus of the parties. They are empowered to develop solutions for themselves which they consider fair and reasonable. By doing so they perform their part as partner or parents and at the same time live up to their role model function. Depending of their age and stage of development children can be involved in the process of mutually acceptable solutions. Assets are not necessarily destroyed, but preserved to the best possible extent. Mediation is usually faster and cheaper than adversarial, multi-instance proceedings before courts.
Inheriting and Passing on
If a deceased has descendants but has not made any last will and testament, lengthy disputes within the community of the heirs are a common consequence. Almost always events in the past of the family are the reason why the parties involved are unable to achieve an amicable solution by themselves without professional external help. This may result in yearlong, cost-intensive and emotional controversies resulting in court proceedings which perhaps do not take account of the current situation within the family. Almost always these proceedings are conducted to the detriment of the family’s assets.
Precautionary estate planning is one way to avoid such quarrels at the outset. Because very often – for instance with respect to patchwork families – the rules of legal succession do not do justice to the actual expectations and perceptions of the parties involved. Rules imposed unilaterally by the testator do not necessarily reflect the interests of the (potential) heirs. Therefore all parties concerned should be involved in the planning of the estate.
Contrary to heirs and partners of the testator the mediator does not know the family history. Therefore, he is able to question events of the past and break taboos from his external perspective. This way of communication often fosters the mutual understanding of the parties, thus allowing them to find a future-oriented and mutually acceptable solution. As a result mediation preserves both family ties and the estate of the bequeather.
Corporate succession is one aspect of precautionary estate planning. Still today, over 90 % of all German companies are family-owned. Most current owners have the clear intention to pass the company on to the next generation. This requires clarification of the legal framework with respect not only to inheritance law, but to questions of ownership and/or the group of future shareholders within the owner family as well as topics concerning operative management. Also it is necessary to regulate the person(s) who shall take over the company and the timing of the withdrawal of the current owner from day-to-day management, including the question whether employees as well as customers and suppliers and the house bank are in agreement with that decision. Usually this process takes at least 2 years, in most cases even 5 years and more.
It is a characteristic of family-owned businesses that questions of ownership cannot be dissociated from those concerning day-to-day management and family issues. For the parties involved the following 5 questions are the most relevant:
Who shall own what?
Who shall decide what?
Who shall get money for what?
Who shall, must or wants to do what?
What must be implemented until when?
Irrespective of these 5 questions, every company should have available at any time a so-called „emergency plan“ for those cases in which the current management is unexpectedly – for instance because of unforeseen illness – permanently or for a longer period of time unable to perform their duties.
Mediation offers the opportunity to clarify all these issues in a flexible and binding manner with all parties concerned and possibly with the external advice of tax advisors, attorneys, insurance agents etc. This includes above all the – sometimes only presumed – question of whether the younger generation is really willing to take over, the older generation really willing to pass on and whether the company still is commercially viable.
The donation was given under the express condition to conduct regular garden maintenance. Shareholders quarrel about profit distribution or the duty to provide additional financial cover. The bank requires more credit security. The architects or craftsmen deny warranty claims and insist on more upfront payment. The sales contract does not provide for instalment payments of the purchase price. The supplier is unable to keep the prices agreed upon due to change of production locations.
In all these situations each party certainly is entitled to take legal measures. However, going through all stages of appeal may take a long time and will cost a lot. Throughout this period of time the status quo will remain unchanged; in a worst case scenario one party will even become insolvent. Mediation may certainly not make good for missing financial resources or improve economic framework conditions. However, it may contribute to the parties‘ understanding which further options exist to resolve the crisis.
Rent-, Ownership- and Neighbour Disputes
Whether neighbourhood distance rules are met, whether a right for an emergency route exists, whether bulky waste may be put in front of the house, whether a party is in violation of statutory noise limits or whether rent may be reduced due to restoration work, these are all questions that may be resolved by a court.
However, adversarial neighbourhood-, ownership- or rent disputes only know winners or losers. In addition, court proceedings serve to deteriorate the atmosphere between the parties. Further court proceedings may be the result, without the parties’ possibility to evade each other. Only few people remain unaffected by such a lasting intrusion of their privacy. They need the involvement of an external neutral third party to find the obvious solution for their problem. If such an amicable solution fails, they may still go to court.
Disputes in professional context disrupt the work process and cause additional costs. They constitute a burden for all parties involved; even outside the work context and may additionally lead to severe health problems.
Reasons for such – open or disguised – conflicts may be:
- personal changes in the team or in the management
- missing organisational structures
- rivalry and expectation pressure
- personal animosities
- misunderstandings in communication
Notice of termination or a law suit before the employment court is often a means of the last resort. The parties mostly shy away from pursuing this option because it results in personal or financial losses. Resolving intercompany conflicts in-house is rarely successful. Often the employees are part of the problem.
An external mediator may take a fresh outside look at the intra-company conflict. He can lead the conflicting parties to find their own solution – on his own or with the assistance of a team of experts (lawyers, psychologist, coaches, trainers etc.). This may not only provide a basis for a peaceful cooperation within the company, but also strengthen the company’s position in the market. Not the least because internal disputes are costly and lead to the destruction of company values.
Interpersonal Conduct and Communication
Increased demands in relationship, professional and family live, growing expectations as to one’s own way of living as well as technological progress leave less and less time for personal conversations or contacts. „Communication“ is reduced to the bare minimum. This leads to misunderstandings which may be the root cause for conflicts and disputes.
Mediation may serve to clarify the parties’ mutual expectations as to a constructive dialogue and a reasonable conduct. Questioning the reasonableness of actions and reactions may lead to the questioning of one’s own conduct and its impact on others.
Every generation has its own value judgements. With increasing age these judgements assume a different significance in life. Perspectives and course of dealings change.
Succession in family firms
Quality of life
Communication within a company
|Aversion to technology
|Affinity for technology
Not willing to change
As a first step in a mediation the different value judgements can be determined. Often the parties understand the conduct of the other side as a personal attack. However, in many cases such conduct is merely the result of anxieties and uncertainties. To reveal these feelings to the other side and thereby increase the understanding for one’s own reactions requires a protected and trusted environment. Each side must be sure that a potential weakness both will not be used against him or her and t not be made known to the outside world.
In times of globalisation, decreasing birth numbers and ever increasing life expectations the question arises for each individual with ever growing intensity, where and how she or he wants to spend their retirement. Very often people are plagued by severe concerns not uttered, relating to health and social care, financial and personal dependence. There are few areas in life where dealing with these issues in a timely manner is less developed. Problems are simply ignored.
„Suppressing“ does not help. Ageing cannot be prevented. Legal claims for an individual 24/7 day-care do not exist. Much depends on precautionary planning and requires early discussions with all parties involved. The sooner people tackle the issue, the easier it will be. Individual expectations should be expressed and existing opportunities be used rather than having others making decisions against or without the will of the parties concerned.
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