Conflict – Page 11 – understand-culture

To judge

Judge: To form an opinion through careful weighing of evidence and testing of premises; to sit in judgement of, to try; to determine or pronounce after inquiry and deliberation; to govern, rule; to form an estimate or evaluation of; to form an opinion; to decide as a judge. Middle English juggen, from Anglo-French juger, from Latin judicare.

Mediate: Occupying a middle position; acting through an intervening agency; exhibiting indirect causation, connection, or relation. From Late Latin mediatus intermediate.

Fact: A thing done; the quality of being actual; something that has actual existence; an actual occurrence; a piece of information presented as having objective reality. From Latin factum.

Witness: Attestation of a fact or event; one that gives evidence; specifically: one who testifies in a cause or before a judicial tribunal; one asked to be present at a transaction so as to be able to testify to its having taken place; one who has personal knowledge of something; something serving as evidence or proof; public affirmation by word or example of usually religious faith or conviction. Middle English witnesse, from Old English witnes knowledge, testimony, witness, from wit.

Testimony: The tablets inscribed with the Mosaic law, the ark containing the tablets; a divine decree attested in the Scriptures; firsthand authentication of a fact; a solemn declaration usually made orally by a witness under oath in response to interrogation by a lawyer or authorized public official; an open acknowledgment. Middle English testimonie, Latin testimonium, from testis witness.

References

Conflict in a team affects its people. People have personal perspectives. Subjective, not objective. Both real and a factor. Opinion counts, for it is among the fundamental drivers of behavior.

Americans value as evidence both facts and personal opinion. See an American curriculum vitae (resumé). It always either cites or offers references. See the sales/marketing efforts of any American company. They always either cite or offer a customer list. See the American judicial system. It always allows for supporting witness testimony.

Ask employees

In 2013 there was a lot of controversy regarding allegations of abuse against several members of the Miami Dolphins professional football team. As part of the NFL (National Football League) investigation into these claims, a report was put together analyzing the behavior of the players. This report was primarily based on emails, text messages, and more than a hundred interviews conducted with the Dolphins personnel.

In 2002 the founders of Google attempted to set up an organizational system without managers. After just a few months, however, their system fell apart. Following this, the founders decided to use the failed experiment to determine which characteristics are the most important for strong leaders.

To find these characteristics, the founders considered not only the factual details from the failed system, but they also relied heavily on such things as employee surveys and double-blind interviews.

In dubio pro reo

In German conflict situations, such as criminal law, the general rule “in dubio pro reo” (when in doubt, for the accused) applies. During the examination of a conflict and in reconstruction of the facts, it is requird that the judiciary be extremely accurate.

This means among other things, that subjective evidence, such as taking testimonies on the basis of assumptions (even though they might be accurate), are not sufficient indications of the facts. This protects the German defendants from unlawful decisions.

However, this also means that even if the subjective evidence is convincing, the prosecutor does not have the right to use it, unless and until objective evidence (e.g. reviewed testimonies, video- or tape recordings, images) verifies it.

If the prosecutor is not able to find such evidence and tries to support his argument by using subjective testimony, he still carries the burden of proof.

Let’s take the example of a prosecutor whose house was graffitied. The prosecutor does not know with certainty that the graffiti was actually done by the defendant, but he has a strong subjective presumption since the defendant is a well-known graffiti artist in the neighborhood.

The prosecutor carries the burden of proof. Relying only on subjective reasoning will lead to the lawsuit being rejected due to lack of conclusiveness.

Schlichter

The process of Schlichtung – arbitration, mediation, conciliation – is a bit different in every case. To get a sense for the process it is helpful to take a look at the Mediationsgesetz – mediation law, for there is actually a law in Germany supporting out-of-court arbitration.

The law states clearly that the Schlichter takes a neutral position during the mediation. She or he is to lead the conflict parties to a consensual (both agree freely) resolution of the conflict, so as to avoid the need for a court case.

The Schlichter speaks with each party separately in order to reconstruct the conflict as objectively as possible. But what does “objective” actually mean? The mediation law does not answer that question. It is the job of the Schlichter, typically via a long process, to find the truth.

The one conflict party tries to prove the guilt of the other party. That party, in turn, does their best to prove lack of guilt. The mediator does her best to get as objective a picture of the situation as possible.

Rekonstruktion

Rekonstruktion. Reconstruction. To rebuild; to explain an event, situation, thing as it once was; a work of art, music, literature, a physical thing such as a building or the behavior of people, an historical development.

Sich ein eigenes Bild von etwas machen. Literally to make for oneself a picture of something; to look at something with one‘s own eyes; to inform oneself at the scene.

Wahrheit. Truth; as it is, was; what is true, is lasting; what was truly the case, what is accurate.

Umstand. That which is present, literally standing around; what was present and influenced an event; contextual factors; an important, critical factor or influence.

Einordnen. To put into order, to fit in; to put in place within a system; to judge; to fit into an existing pattern or set-up; to size someone up, to get a read on.

Beweismaterial. Evidence; information relevant to a court case; to gather, secure, proof, destroy, hide evidence.

Rules of Mediation

The first rule is that the conflict resolution process is not the equivalent of a court case. The goal is not to judge either of the conflict parties, but to jointly find a solution to the problem.

Goodwill. It is expected of all parties involved that they act in good faith and are willing to compromise. The mediator should do no more than guide the discussion and help the conflict parties to recognize common ground. The conflict parties are asked to find a solution together. Only when that cannot be achieved, is the moderator expected to make concrete suggestions.

The mediator. Germans expect the moderator to be neutral, to listen patiently to both sides of the conflict, and to support the resolution process in a way which does not damage either party. Neither blame nor guilt should be attributed to either of the conflict parties. Instead, the mediator focuses on reconstructing events and describing the problem.

Heiner Geissler, a former high-ranking member of the Christian Democratic Party, is the most prominent of German mediator. Geißler has been brought in numerous times since 1997 to help resolve conflicts between companies and unions. He was in the national spotlight over the last few years in his attempt to help resolve a major political conflict in the state of Baden-Württemberg concerning a the reconstruction of the Stuttgart main train station.

Detective Shows

The German fascination with investigations and the reconstruction of events is evident in the popularity of crime novels and detective series on television. The story is always about figuring out the facts behind a crime. The show ends with the apprehension of the criminal and a reconstruction of the crime.

The most popular of German detective show is Tatort, literally Crime Scene, which began in 1970, has produced over 800 episodes, and attracts between 7 and 11 million viewers per show.

Soko 5113 began in 1978 and has run 40 sets of episodes. Both series have led to popular spin-offs. On any given evening, on any given channel in Germany, a detective show is being broadcasted. Many are co-productions involving teams from Germany, Great Britain, the U.S. and Skandanavian countries.

Fair Hearing

“A fair hearing is a judicial proceeding that is conducted in such a manner as to conform to fundamental concepts of justice and equality.

A fair hearing means that an individual will have an opportunity to present evidence to support his or her case and to discover what evidence exists against him or her . . . . during which time he or she may offer evidence, cross-examine opposition witnesses, and offer a defense.”

In criminal law, when an individual is arrested, a fair hearing means the right to be notified of the charge being brought against him or her and the chance to meet that charge.

Source: legal-dictionary.thefreedictionary(dot)com/fair+hearing

Conciliation

Conciliationis is an additional step proposed in the dispute resolution process.

The conciliator meets with the parties separately at a so-called pre-caucus. The purpose is to help each party release their pent up concerns enough to enable them to gain a broader perspective on the dispute.

The parties then meet together at a joint session, where they discuss directly with each other instead of through a mediator.

The conciliator is there to help the parties take responsibility for managing their own conflict, rather than to judge between the merits of the position of one party or the other.