Mediation Law

Germans prefer to resolve their conflicts without taking it to the courts, and with the help of a neutral, third party. The so-called mediation law permits these resolutions to be legally binding. Mediation reduces the workload of the courts and often leads to a resolution accepted by both conflict parties.

Mediation is a structured approach which guarantees that its proceedings do not become public. The conflict parties participate freely in the mediation process and are asked to seek resolution in good faith.

The mediator is a neutral and independent party, but has no power to force a resolution. The mediator guides the conflict parties to a resolution which they have formulated.

The mediation law also allows for ombudsmen, or neutral third party organizations, which also offer conflict resolution services. These include banks, insurance companies, the German rail system, scientific research organizations, local utility companies, real estate associations, legal organizations. The association of banks, for example, in 2011 resolved over 8,000 conflicts. The insurance association resolved just over 17,000 conflicts.

Ultima ratio

German workers do not like to strike. It is considered the ultima ratio – weapon of last resort – used only when negotiations about wages and worker‘s rights have completely broken down.

In 2002, when the German government passed painful but necessary social and employment reforms, there were strikes in 938 companies. In 2000 there was not a single strike. 2001 saw only 48 strikes. A decade later, in 2011, there were 158. On average only three days a year are lost due to strikes in Germany.

Ultima ratio. Latin ultimus, the last, final, the furthest away. ratio: reason, reasonable thoughts; the last possible solution, the final remaining path out of a conflict.

Friedenspflicht. Literally peace obligation or obligation to keep the peace. When German employers and employees enter into wage negotiations they are obligated for the first ten days to refrain from strikes or lockouts.

The Friedenspflicht is anchored in §74 of the Betriebsverfassungsgesetzes, the law governing the relations between employers and employees:

The employer and the works council (a kind of white collar union) should meet at a minimum once per month in order to discuss potential conflicts and to propose in good faith recommendations on how to resolve them. The employer and the works council are obligated to refrin from methods of pressure – strikes, lockouts, etc. – which could disrupt company operations.

In 1923, during the politically unstable Weimar Republic, the Stresemann government passed laws requiring a mediator to resolve conflicts between employers and labor. Should companies and labor unions not come to agreement on wages and other benefits, the government had the power – and the obligation – to engage an arbitrator, whose decisions were legally binding.

German schools train both students and teachers to anticipate and prevent potential conflicts, as well as to mediate those which have been escalated.

The Prussian military instituted a rule informally called the Prussian Night, which obligated conflict parties to not escalate their problems within the first 24 hours of the conflict. Those in conflict should first „sleep over it“, then decide how to proceed.

Peinlich

Konflikt. Conflict. Latin conflictus. Collision, hitting, crashing together; a difficult situation caused by opposing opinions; to go against something, to argue, battle, fight with another.

Streit. Argument. Old High German strīt. To go against, uproar, to argue against each other vociferously; to bicker, to argue loudly, emotionally, intensely, including physical attacks. A term used in the past for battle, military confrontation. To arm yourself for a Streit.

Auseinandersetzung. To address an issue at length; discuss, debate, argue; sharp, bitter verbal confrontation; conflict between peoples fought militarily.

Peinlich. Embarrassing. From Middle High German pīnlich. Painful, from pein, pain; Latin poena, punishment; feeling of discomfort, unease, shame.

Überspielen. To hide something negative, cover up; to distract from an embarrassment; to refer to a negative situation with humour so as to mask it.

Petzen. To „rat on“ another person. Germans team members are very reluctant to go to their team lead in order to inform about a problem or another team member‘s poor work.

Denunzieren. To denounce. To go to an authority in order to provide negative or incriminating information about another person. To be an informant.

„Streit vom Zaun brechen“

Streit vom Zaun brechen. To let a conflict get out of control. Germans prefer to hide their internal conflicts for as long as possible. Conficts attract attention and curiosity. They force the conflict parties to take a stand, to explain the problem.

This, in turn, offers management and related organizations an opportunity to get involved, to exert influence on the conflict parties, thereby reducing their ability to address the problem alone and independent of outside influence.

Germans, therefore, try their best to avoid escalating a conflict to the next management level. The side which chooses to do so is viewed as impulsive and thoughtless. Germans would rather give in a bit in order to reduce tensions than to strike back. Avoiding open conflict is seen as intelligent, restrained and prudent. Conflict is for the unsophisticated. 

Der Klügere gibt nach. To be willing to compromise instead of insisting on being right; to see the other side‘s point of view as valid; to take the hit in order to reduce the tension.

Das Feuer schüren. Literally to stoke the flames. To provoke; to start a fight; to turn a difference of opinion into an open conflict; to whip up the emotions.

Germans want to be responsible for their work and to perform it independently. They want their work to be clearly defined and distinguishable from the work of their colleagues. Germans do not feel comfortable with having to explain or justify how they complete their tasks.

Every form of supervision or monitoring is a sign of mistrust. Escalating a conflict is risky, therefore, for it invites a third party, typically the next level of management, to take a closer look into how the conflict parties actually do their work. This makes them vulnerable to outside influences on how they work.

Autonomy. Greek autonomía. Independence, self-governance. From autos, selbst und nomos, law. To be responsible for oneself, self-determination, self-reliance, decision making freedom.

Tischtuch zerschnitten

Der Tischtuch ist zerschnitten. The tablecloth has been ripped in two.

In the German context, to escalate a conflict within the team to the next management level is considered to be a sign of failure. Failure of the conflict parties to resolve their problem. Failure to at least come up with a proposed resolution which they can take to their team lead for her input, and perhaps her decision.

Escalation is the equivalent of going to court, of one party suing the other. For Germans, the severity of such a step just about rules out any chance that the two parties will be able to work together again. And regardless of how their German manager assists in the resolution, regardless of the outcome, she will view her two team members as having failed themselves, the team and her.

Imprint