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.

Embrace Conflict

In 2012, American business magazine Forbes published an article that lists several keys to dealing with workplace conflict. In the article, the author suggests that every business leader should adhere to the principle “don’t fear conflict; embrace it – it’s your job.”

The article also recommends that every conflict should be resolved quickly, and, if possible, business leaders should identify people who are likely to get into conflicts and stage pre-conflict interventions with everyone who seems likely to become involved.

Another article from About Money lists actions to avoid when resolving workplace conflicts. The top two points on the list advise leaders not to avoid conflict and not to meet separately with the people in conflict. Most articles from American business journals include similar advice.

“It was me, but ….”

There are numerous cases brought to court in America each year. Some of these involve suspects who wish to clarify their misdeeds amongst public discourse. This is particularly prevalent in the current case regarding the suspect of the Boston Marathon Bombings.

The suspect in the case pleaded not guilty although his defense lawyer admits “it was him.” This brings about the right to appear in court to argue your side of the story and expect a fair hearing followed by a fair trial.

Sworn Testimony

During a hearing, called by their boss, Americans are careful, factual, cooperative. Most importantly they are discreet. Anger, impatience, any lack of self control is considered to be unprofessional.

The boss listens carefully to what each party to the conflict claims. In a formal hearing, within the legal system, parties providing testimony first swear that they will provide „the truth, the whole truth, nothing but the truth.“

The consequences for lying – perjury – are serious: a felony which can lead to a prison sentence for up to five years.

Perjury: the voluntary violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath; false swearing.

American managers take very seriously their obligation, duty, responsibility to resolve conflicts within their organizations. Any attempt by a conflict party to manipulate that process is punished quickly and severely.

Land of Lawyers

According to a recent survey, approximately 64% of American parents want their children to grow up to be lawyers. As a result, from a young age American children are taught to admire people who are skilled at presenting cases and winning arguments.

So much so that lawyer is the 14th most common answer that American children give to the question “What do you want to be when you grow up?” Lawyers defend their clients, especially in hearings

Due Process

In the U.S. Constitution only one command is stated twice: in the 5th and 14th Amendments: „… or be deprived of life, liberty, or property, without due process of law ….“

This is known as the Due Process Clause, which guarantees that all levels of government in the U.S. must operate within the law and provide fair procedures.

The right of due process is deeply embedded in American thinking, and therefore in the thinking of Americans at the workplace. It is the promise, the guaranty that a conflict will not be resolved without a process which is fair, transparent and protects the rights of those involved in the conflict. It is a question of fairness, of how Americans define what is a fair process.

Separate Hearings

German managers are trained to hold separate hearings with the conflict parties. The initial goal is to establish the root cause of the problem and to guage the intensity of the conflict. The German approach avoids a hearing involving both parties. Student mediators in German schools are taught the same method.

A hearing with both conflict parties present almost always leads to an escalation of tension. Emotions run high. Accusations and counter-accusations are made, often without any basis in fact. The mediator can quickly lose control of the situation.

That kind of a hearing only giesst Öl ins Feuer, literally pours oil into the fire; provoke another person; to push a difference of opinions into an open conflict.

The German term Herrschaftswissen, roughly translated as domination or control via better information, in the sense of knowledge is power, has a negative connotation. It signifies power of one over another based on the former‘s access to critical information.

German mediators strive to be better informed of all the details concerning a conflict than the conflict parties themselves. This not only prevents manipulation, it is the basis for resolving the problem.

Magistrate

The German State of Thüringen (Thuringia) analyzed aspects of its judicial system. It recommended that magistrates (judges) hold separate hearings with the parties in conflict. Separate hearings are considered to be “besonders hilfreich” – especially helpful.

Many attorneys were quoted praising the advantages of separate hearings: “loose, relaxed atmosphere; room to discuss matters other than the conflict itself; each side feels they are taken seriiously; an opportunity to present one’s viewpoint without the other party attacking it; creates a constructive communication climate.”

One of the magistrates underscored the value of holding separate hearings: “For me the most important part of the mediation is the hearing with each party separately. Points are made which are very important to the respective conflict party, points which helped me to better understand the nature of the conflict and which led us to a breakthrough.”

Mediation Process

On the website of the German National Association of Mediation one reads:

“The mediator directs the mediation process in angemessener (appropriate, reasonable, adequate) way and considering the unique aspects of the case, including an imbalance of power between the conflict parties, the rule of law, as well as any particular needs and wishes of the two parties, including the need to resolve the conflict in a timely manner.”

The conflict parties may modify the mediation process in line with current rules or otherwise, in agreement with the moderator. The mediator may conduct separate hearings with the conflict parties if she or he deems this to be helpful.”

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