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Mediation

The alternative way to solve conflicts

Since 2014, I have been offering mediation in family matters at my office in Königstein. In the first few years, my firm, which was initially run under the name ‘Mediationskanzlei Marx’, even focused on this type of conflict resolution. Although the focus has since shifted to traditional legal work in family matters, I still offer mediation in appropriate individual cases.

Make an appointment for mediation now:

06174 – 93 57 57 0
marx@familienrecht-marx.de

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What is mediation?

Mediation is an extrajudicial process for resolving conflicts in which the parties involved in the conflict work out a solution for their situation independently in joint discussions with the help of a neutral, “multipartial” third party (mediator). The system was developed in the USA.

The mediator supports the parties to the conflict by leading and structuring the discussion and negotiation process, ensuring that all parties involved have an equal say and that certain rules of discussion and conduct are observed. He or she does not make any suggestions himself/herself, but tries to encourage a creative search for a solution by asking questions or suggesting brainstorming processes.

In mediation sessions, all participants have the opportunity to explore and express their own needs and desires with regard to the issues in the conflict, but also to learn about the needs and desires of the other parties involved in the conflict. The discussion also addresses which fairness criteria, in the opinion of the participants, should underlie a solution.

Unlike other procedures, mediation devotes a great deal of time to this process of understanding. This takes time but ideally leads to solutions that are better accepted by the parties and are more ‘durable’ than decisions made by an authoritative third party, such as a court.

The solutions worked out in mediation are not just declarations of intent or ‘gentlemen’s agreements’, but binding arrangements. In some cases, they require a certain form, such as notarisation, in order to be legally binding.

In principle, the parties are obliged to seek partial advice from external lawyers independently of each other, at the latest before signing the final agreement. This gives them the opportunity to ascertain whether and to what extent the solution developed on the basis of their own fairness criteria may differ from the statutory solution, and to critically question the intended settlement again in this light.

Participation in mediation is voluntary for the parties involved. They can withdraw from the mediation at any point in the proceedings. The mediator is subject to a legal duty of confidentiality. The parties also agree to maintain confidentiality, i.e. what is said during the mediation sessions will not be disclosed to third parties.

Finally, the mediation process requires openness and fairness on the part of the participants. This means that the parties involved must be fundamentally willing to conduct the negotiations with an open mind and not accept only a certain solution from the outset. In return, the mediation process ensures that the essential needs and interests of all parties involved are taken into account in the final solution.

Pros and cons of mediation

A mediation process places high demands on the parties involved, who must represent their interests independently and in direct contact with the conflict partner and work together to develop economically viable solutions. In my experience, spouses regularly require extensive legal support, particularly in separation and divorce situations, as the legal field is extremely complex and the German legal system does not offer spouses any guidance on how to regulate the consequences of divorce independently.

Many spouses feel overwhelmed when they have to negotiate directly with their ex-partner on topics such as alimony, equalisation of gains, the division of property and the settlement of joint debts, the bases and further implications of which, for example in the area of taxation, they often have no knowledge of.

There is also a high emotional burden that arises from having to meet with a formerly beloved, now estranged or even hated partner in mediation talks in order to ultimately settle the breakdown of the relationship. Some may hope for a reconciliation through mediation and are then all the more disappointed when the other party single-mindedly turns to the financial issues.

Others hope, and this should not be kept secret either, that mediation will provide a quick solution to the financial issues that is as favourable as possible for them, with the applicable law being disregarded as far as possible. In these circumstances, it is often impossible to find differentiated and appropriate solutions together.

In such cases, the ideal solution often appears to be to engage two experienced divorce lawyers, ideally also trained in mediation, who will take over the out-of-court negotiations for the spouses, competently shape the process and also provide their clients with emotional support in this difficult phase of their lives.

In which cases is mediation useful?

There is no general answer to the question of in which cases mediation is useful and promising. The degree of conflict escalation, the ability of the parties to listen to each other, and the presence of a certain basic financial literacy on both sides undoubtedly play a role. In our experience, mediation is particularly suitable for issues that directly affect the lives and experiences of those involved in the conflict.

In separation and divorce situations, for example, the following conflict issues arise:

    • How to go about the separation: Who moves out? How can you live separately under the same roof?
    • Residence and custody of joint children after the separation
    • Other topics related to children, such as school choice, vaccinations, parenting issues, parents’ participation in school events or birthdays
    • Quarrels between parents and children, intra-family communication
    • Dealing with new partners
    • Division of the joint household

    In theory, mediation on such topics can also be conducted in parallel with ongoing legal proceedings regarding the financial consequences of divorce, with the aim of incorporating the results of the mediation into the  separation and divorce agreement negotiated by the lawyers.

    The mediation process

    A mediation process consists of a number of successive phases that are transparent to the parties involved at all times. The following process is typical:

    Initial meeting

    After an initial contact by phone or in person, an introductory meeting is arranged in which you and the other party/parties to the conflict participate. In this meeting, we clarify whether mediation is fundamentally an option for the parties involved, what your respective expectations, wishes and, if applicable, concerns are in this regard, and I explain to you the basic principles of mediation and the costs of my services. We may also discuss the possibility of co-mediation in your case. If you wish, I can conduct the mediation talks with you in English.

    If, on the basis of this discussion, you decide to go ahead with mediation, all parties will sign an initial mediation contract, which forms the basis of our cooperation and sets out all the important principles of mediation. We would discuss any ambiguities together.

    Collection of topics

    The first mediation session is usually about identifying the topics you want to discuss in mediation. Each party to the conflict can name the conflict issues that are important to them. After that, you jointly determine the order in which these topics should be addressed. We will also discuss how communication between you in the sessions should proceed in order to achieve the best possible outcome.

    I summarise your most important statements and intermediate results on a flipchart (writing pad) during all sessions. You will receive photo protocols of these minutes after each session.

    Defining interests and needs and fairness criteria

    Before we start to find a solution, I will try to find out together with you what the respective topics are really about for you. Everyone here has the opportunity to become aware of their interests and needs, but also of their fears, which are behind their position, and to make these known to the other party. This enables mutual understanding.

    We will also discuss in detail the fairness criteria that you would apply to a solution that is acceptable to you. The solution developed later will be measured against the interim results found in this phase.

    Finding a solution

    The next phase is the most creative phase of the mediation process. With my help, you will first try to develop a broad spectrum of possible solutions for the individual topics of the conflict, and then further elaborate on the approaches that are useful. In this phase, external consultants or other third parties whose opinion is relevant to you can be consulted in the process. Ideally, you will reach a final agreement on all topics at the end of this phase, which usually extends over several sessions. However, partial or interim solutions are also possible, as are agreements on trial periods, possibly with the understanding that the open points will be revisited in a later mediation session.

    Legally valid agreement

    At the latest when you have jointly found a (provisional) solution and we have formulated it, you should – each of you separately – consult external legal counsel to review the agreement you have reached from a legal perspective and explain the legal situation to you.

    If, after this information, you decide to implement your agreement, possibly only after certain modifications, it will be concluded between you in a legally binding manner. Under certain circumstances, a notarisation or judicial approval may be required for this.

    The mediation ends with the conclusion of the legally binding agreement.

    Duration of mediation proceedings

    The duration of mediation proceedings depends on the one hand on the extent and difficulty of the issues in dispute and on the other hand on the willingness and ability of the parties involved to engage with each other and work together on a solution. In principle, proceedings lasting four to eight sessions are to be expected. The usual duration of a session is 90 minutes.

    Cost of mediation

    The mediation sessions are charged at an hourly rate. The hourly rate depends, among other things, on the number of participants and the scope and difficulty of the matter, as well as on whether a co-mediator is involved. The additional costs for drafting the final memorandum or agreement are also calculated on an hourly basis, if this is requested.

    In addition, there may be costs for legal advice from external legal counsel and for the notarisation of the final agreement. Unfortunately, mediation proceedings are not yet generally publicly funded in the form of mediation cost assistance. However, legal expenses insurance now covers parts of the mediation costs. I would be happy to clarify whether this is the case with your legal expenses insurance.

    Mediation or legal representation?
    You have to decide.

    A lawyer who advises and represents a party to a conflict may not, by law, act as a mediator in the same conflict. Conversely, a mediator who is a lawyer by profession may not advise or represent any of the parties to the conflict in a legal capacity after the mediation has ended. In both cases, a conflict of roles would otherwise arise that could damage trust in the mediator’s impartiality.

    You can therefore only hire me as a mediator if I have not previously advised or represented you in the matter in dispute and if you do not wish to make use of any legal services from me in the future.

    Contact

    Please feel free to contact me in advance if you are considering whether mediation is the right approach for you.

    For further information on mediation or to make an appointment directly:

    T: 06174 – 935 75 70
    E: marx@familienrecht-marx.de

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