Mediation Models: There are several models of in-court mediation, including integration (mediator is a judge from the same court but not involved in the case), extension (mediator from another court), and outsourcing (external lawyer as mediator). All these models are designed to ensure impartiality and reduce the risk of direct confrontation, often involving separate interviews or caucuses with each party.
“Air your grievances.”
“Air your grievances.” Encourages openly expressing complaints or accusations, typically in a forum where all parties are present.
“Tell it to my face.”
“Tell it to my face.” Demands that criticism or accusations be made directly, not behind someone’s back.
Tom Buchanan
In F. Scott Fitzgerald’s The Great Gatsby, Tom Buchanan’s confrontational business dealings reveal a willingness to negotiate aggressively, reflecting a broader American acceptance of price negotiation as a sign of power and influence.
verbal vs. written
In Germany, a verbal agreement can indeed be legally binding. German contract law, as outlined in the Bürgerliches Gesetzbuch (BGB), recognizes both written and oral agreements as legally enforceable under certain conditions. According to Sections 145 to 157 of the BGB, a contract can be formed through a verbal agreement as long as it meets the essential elements of a contract. These elements include a clear offer and acceptance, an intention to create legal relations, and consideration in the form of a service, product, or payment.
However, not all agreements can be concluded verbally. Certain types of contracts must be in writing to be legally binding. For instance, contracts involving the sale or transfer of real property must be notarized in writing according to Section 311b of the BGB. Similarly, a guarantee agreement must be in written form to be valid, as stipulated in Section 766 of the BGB. Consumer loan agreements also require a written format under Section 492 of the BGB.
While verbal agreements are binding, they can present significant challenges when it comes to enforcement. The burden of proof rests on the party claiming that a contract was formed, and without written evidence, it may be difficult to establish the exact terms of the agreement. Disputes often arise over differing interpretations of what was said, complicating the enforcement of verbal agreements.
Culturally, Germans tend to prefer written documentation even when a verbal agreement is legally valid. This preference is rooted in a desire to maintain clarity and avoid misunderstandings, particularly in business contexts where detailed and precise agreements are the norm. While the law may uphold verbal agreements, in practice, written contracts remain the standard for most transactions, ensuring that all terms are clearly defined and easily enforceable.
“Good things need their time”
The German expression Gut Ding will Weile haben – good things need their time – states that things which are supposed to turn out good will need some time. This becomes clear especially when important decisions are to be addressed:
“Quality before speed: Merkel pulls the brakes at the introduction of new supervision of European banks.” (Handelsblatt 17.2.2015)
“The German Handball Federation President Bauer: “Quality comes before speed.“ (Lahner Zeitung 20.6.2014)
“NPD-Ban: Quality before speed.” (Hamburger Abendblatt 9.12.2011)
Paragraph vs. Case
It is a well known fact that the German and the American legal systems have fundamental differences between them. The modern German legal system is based on ancient Roman law, combined with a bit of French and old Germanic law, but all of it follows the paragraph law structure.
The American system is derived from the English case law tradition, which follows the law as it was laid out by judicial verdicts in actual previous cases. Key cases providing precedence are reviewed to determine how to continue.
Justice (Gerechtigkeit) and judgement are closely connected in the American system. Not just the concrete facts of the case, but also the circumstances are considered to be crucial information for the deliberations and verdict. These then must be interpreted with regard to the complex nature of the human existence.
A task which only persons with sufficient experience with life as well as with people are capable of. This experience – or the wisdom that comes from such experience – is something which only older people can have.
This is why Americans are always astounded when they hear that in Germany relatively young people – in their early 30s – can become judges. Many of the district attorneys that they see on German television look as if they were fresh out of law school.
According to the American understanding of judicial power, paragraph laws play a minor part. Case law is so difficult precisely because it concerns situations which are not found in a German book of federal law.
This is why American judges must be older people who are truly good and wise. Their process too involves stringent scientific methods of analysis, not unlike German paragraph laws. These, from the American perspective, can not deliver more than just the pure facts.
The ability to take these facts and interpret them, to make sense of them, this is what they view as true good judgement. Knowledge of methodology and analytical processes may support one’s good judgement, but can never amount to the equivalent.
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.
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.
heraufbeschwören
Anhörung. Hearing. A discussion open to the public in which subject area experts are asked their opinion; statements given by witnesses; a questioning of participants and or witnesses in a conflict.
Ursache. Cause; from the beginning, start, origin; the reason for a court proceeding; something which causes an event, a development; the immediate and actual cause; to investigate, identify, establish the cause; the law of cause and effect.
eindämmen. Containment; to control the flow of water via a dam; to influence or steer the direction of something; to limit the spread of something, wildfire, costs, crime; to limit another person‘s influence.
heraufbeschwören. To bring about a negative event or development; thoughtless provocation of something negative, destructive; to cause a danger, a conflict.
Verzögerte Anhörung. A delayed hearing. German mediators reserve the right to call a hearing with both conflict parties present, but at a later stage in the resolution process.
Verleumdung. To bear false witness against another person; to damage someone‘s honor by making an untrue accusation; to knowingly state a falsity about the other conflict party; lie, defamation.