The Department of Business Mediation addresses the questions "What is (business) mediation and is there a distinction between mediation and business mediation?"
Whilst classical mediation is a confidential and structured process using a neutral, impartial mediator to develop self-responsible win-win solutions and a sustainable consensus (neighbourhood disputes, divorce, school, intercultural coexistence, criminal law, etc.), business mediation primarily addresses the professional context (workplace conflicts, apprentice mediation, tensions between employees and supervisors, disputes between departments, conflicts between shareholders, legal disputes between two and/or more companies, etc.).
Environmental mediation (mediation in the public sector) for infrastructure projects (road construction, high-voltage power lines, airports, etc.) can also be understood as a form of business mediation.
Both forms of mediation share the characteristic that mediators work with individuals who are embedded in a system, whereby possible solutions are constrained by external factors (laws, framework conditions). The challenge for a business mediator with experience in the business world is to recognise these dependencies and interconnections.
The seven classical principles of mediation can also present particular challenges in business mediation that may significantly influence success:
- Principle of voluntariness (potentially undermined in business mediation by group pressure and employer authority?)
- Principle of impartiality (Is it possible to balance power imbalances between the parties?)
- Principle of neutrality (no substantive interference by the mediator with business expertise in the process)
- Principle of confidentiality (could be undermined by reporting requirements to the client commissioning the mediation)
- Principle of openness and transparency (could potentially be difficult in tensions between employees and supervisors)
- Principle of self-responsibility
- Principle of open-endedness (limited by external framework conditions)
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters has been implemented in Germany through the legal framework for mediation proceedings, regulated since 2012 in the Mediation Act (MediationsG). The MediationsG contains provisions on who may call themselves a certified mediator, what mediation and a mediator are, and what rights and obligations the mediator has in mediation proceedings.
In Austria, by contrast, the EU Directive is implemented through the Federal Act on Mediation in Civil Law Matters (Zivilrechts-Mediations-Gesetz - ZivMediatG), which contains considerably more comprehensive provisions than its German counterpart.
Outside the EU - looking at the German-speaking region - there is currently no specific mediation law in Switzerland. The Code of Civil Procedure (Zivilprozessordnung) regulates the relationship between mediation and civil procedural proceedings. Upon application by all parties, mediation may take the place of conciliation proceedings, whereas in Liechtenstein there is the Act of 15 December 2004 on Mediation in Civil Law Matters (Zivilrechts-Mediations-Gesetz; ZMG).
The objectives of the Department of Business Mediation are:
- Establishing a unified understanding of mediation and business mediation
- Implementing business mediation tools in business processes and HR
- Further development and creation of training and advanced education/specialisation programmes for mediation tools to strengthen professional, social and methodological competence, as well as training courses
- Building an expert network within ZFRK
- Risk minimisation, conflict management through the installation of business mediation know-how
Possible topics addressed within this department:
- Particularities and challenges of classical mediation - business mediation - mediation in the public sector, etc.
- Crisis management through business mediation
- Problem orientation versus solution orientation - the journey is not the goal
- Cross-border mediation
- Mediation training
- Enforceability of mediation agreements
- Obstacles to mediation
