law – Page 5 – understand-culture

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.“

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.

Legal Case Method

The case method utilized in business schools is also used in American law schools. It relies on the principle that the most effective way to learn American law is to scrutinize judicial opinions which have become the law.

Law school cases allow students to discern a legal rule, prompting students to test their knowledge in simulated situations. This sensitivity towards facts and reliance on previous judicial rulings is deeply imbedded in the legal system in the United States.

Litigation

Given their litigation-heavy culture, it may seem ironic that Americans are so quick to say yes to an agreement. After all, saying yes and then not following through should make it easier for the one party to file a lawsuit.

However, the reality is the opposite. By having a culturally soft yes Americans make it more difficult for others to successfully sue them. In the U.S. it takes far more than a simple yes to indicate an oral agreement, which offers Americans protection from legal claims.

Gianni vs. Russell Supreme Court of Pennsylvania 1924 – Gianni, who owned a small store, claimed that his landlord told him that he could have the exclusive right to sell drinks in the building.

The landlord then rented another space in the building to a company that sold drinks, and Gianni attempted to sue. However, because Gianni had entered into a written lease, and there was no mention of this right in the lease, the oral contract was said to be nonexistent.

Power Entertainment Inc. v. National Football League Properties, Inc., United States Court of Appeals, 5th Circuit, 1998 – the plaintiff and defendant orally agreed that Power Entertainment would take over a licensing agreement between the NFL Properties and another company in exchange for Power Entertainment assuming the $800,000 debt between the two original companies. However, after the debt was paid, NFL Properties did not transfer the license, and the oral contract was found to be invalid.

Additionally, oral agreements in the US are sometimes called handshake deals. Although an actual handshake isn’t necessary to make the agreement binding, this still shows that it takes more than a ‘yes’ to enter into an agreement.