Speedy Trial

Again, the Sixth Amendment to the U.S. Constitution states clearly what Americans expect: „In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial“

Various U.S. state and federal laws guaranty a more specific right to a speedy trial. In New York, for example, the prosecution (accuser) must be ready for trial within six months or the charges are dismissed. The Speedy Trial Act of 1974 established time limits for completing the various stages of a federal criminal case.

Americans anticipate that there team leads not only hold a first hearing promptly. They want the conflict resolution process to come to a conclusion, to a judgement, promptly as well. A manager who is slow to decide – to make the „judgement call“ – is seen as someone who has weak resolve. To have resolve means to deal with something.

Americans believe that maintaining forward movement is critical to the success of every team.

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.

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.

Litigious

Litigious: To be litigious means to argue, to contend, to take your dispute to the courts. American society has become very litigious. With a population of roughly 310 million people, the U.S. has 1.2 million attorneys, 200 law schools, graduating approximately 45,000 lawyers each and every year. The court of law is where conflict is resolved.

How conflict is resolved is foundational to any society. It is a system for balancing out conflicting interest. Conflict resolution is so central to our daily lives, in so many or our interactions, that we are continuously fascinated by how they play out.

This fascination is the reason why many movies and television shows are based on the law and legal proceedings. Among the most popular in the U.S. were: L.A. Law (1986-94), the classic Perry Mason (1957-66), The Defenders (1961-65), Law & Order (1990-2010).

The popularity of these shows has led to the reality court room shows, a combination of reality television and the workings of the American legal system. The best known are Judge Judy, The People‘s Court and Divorce Court.

6th Amendment, again

The Sixth Amendment states: „In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, ….“

For Americans, whether in the legal system or in the workplace, the right to a hearing is fundamental. The hearing allows for the parties in conflict to make their arguments and counter-arguments. It is the beginning of the formal process of conflict resolution. Americans expect the team lead to call a hearing quickly.

In a fair hearing the conflict parties have the opportunity to present evidence – including witnesses – and to discover what evidence is brought against them. The hearing also allows for questioning (cross-examination) of the opposing party‘s witnesses. A hearing is only fair if it is administered by an impartial third party.

In the American business context the manager, as judge, may resolve the conflict based on those arguments and counter-arguments, or use the hearing as a basis for further investigation into the reasons for the conflict.

Because American managers are responsible for the results their teams produce, they focus on maintaining internal team cohesion. Conflict of any kind threatens cohesion. After having learned of an internal conflict, American managers are inclined to call the conflict parties together at very short notice. That first hearing is direct, informal and personal. The manager wants to „get to the bottom of the problem.“

“Whistleblowing”

Even if an American loses a conflict within a company, after having escalated it once or twice, if he/she strongly believes to be in the right, it is not uncommon for that American to seek an even higher authority – the public at large. When that happens, the person who exposes the conflict is called a “whistleblower.”

Edward Snowden was working for the NSA when he publicly accused them of spying. Snowden said that the reason why he decided to make his accusations public was that he “can’t in good conscience allow the U.S. government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

In 2014, former State Department official John Tye wrote an editorial in The Washington Post in which he discussed his concerns about his department.

Thomas Drake was an executive in the NSA (National Security Agency) when he began to disagree with the agency’s policies. After several attempts to address his concerns internally, Drake decided to make his complaints public and turned to reporter Siobhan Gorman in 2006.

6th Amendment

The Bill of Rights are first ten amendments to the U.S. Constitution which guaranty personal freedoms and limit governmental powers. The Sixth Amendment states:

„In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.“

The following part of the Sixth Amendment is named the confrontation clause: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”

The Confrontation Clause has its roots in both English Common Law, protecting the right of cross-examination, and Roman Law, which guaranteed persons accused of a crime the right to look their accusers in the eye.

According to the Bible, Acts 25:16, the Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.“

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.

Wrongful termination

The Human Resources departments in American companies – especially large ones – have become very careful in how they handle employee performance appraisals. Not only because they strive to develop their talent, but also in order to avoid lawsuits. Even well-designed appraisals can lead to a lawsuit if they are poorly implemented or applied in an inconsistent manner.

Because U.S. labor courts continue to make exceptions to the once solid At-Will doctrine, employers face greater requirements to prove legitimate business reasons for many personnel actions.

At-Will employment is a term used in American labor law for contractual relationships in which an employee can be dismissed by an employer for any reason and without warning.The rule is justified by its proponents on the basis that an employee may be similarly entitled to leave his or her job without reason or warning.

At-Will employment gradually became the default rule under the common law of the employment contract in most states during the late 19th century. Over the 20th century many states modified the rule by adding an increasing number of exceptions, or by changing the default expectations in the employment contract altogether.

Article 65, German Basic Law

Germany‘s Grundgesetz or Basic Law is the equivalent of a constitution. Artikel 65 of the Grundgesetz defines the working relationship between the Chancellor and the cabinet:

„The Federal Chancellor defines and is responsible for the overall political goals of the government. Within the framework of these goals each cabinet member is responsible for leading their department independently.”

It continues:

“Differences of opinion among cabinet members are clarified by the Chancellor and the other cabinet members. The Chancellor leads the government based on a political platform formulated by the Chancellor and the cabinet, and which has been approved of by the Federal President.“