Mediation Workshop Rome October 4-5, 2012, Consiglio di Stato

Dr. Matthias Keller, Verwaltungsgericht Aachen Vorsitzender Richter und Mediator

Part 1

BACKGROUND INFORMATION

Aristotle (383 – 321 BC)

Nicomachean Ethics, (book 5 chapter 7)

(…) therefore corrective justice will be the intermediate between loss and gain (…) and they seek the judge as an intermediate,

and in some states they call judges

mediators, on the assumption that if they get what is intermediate they will get what is just.

Seneca

„Saper negoziare

E‘un‘arte che si può apprendere comprendendo

la posizione degli opposti perchè

Nessun vento è favorevole per chi non sa dove sta andando“

1648: Peace of Westfalia mediatore Alvise Contarini (Venetia)

1981: Roger Fisher and William Ury (Harvard Negotiation Project = Basis for Mediation)

Since March 2006 in NRW: Mediation at all Admin. Courts

Recently (July 2012): Access to Mediation at all German Courts!

German implementation of the

EU Mediation Directive

Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters

Part 2

What is Mediation?

Mediation

• is principled negotiating.

• Its aim is to resolve disputes without going to court.

• Mediation is a type of Alternative Dispute Resolution (ADR).

Mediation at Administrative Courts …

…. offers the parties of an administrative dispute the opportunity to stop the legal procedure and sit down at a table in a comfortable and quiet space and talk about the incident that led to the lawsuit.

The participantsThe parties and their legal consultants are not alone during the mediation-meetings

There is always a neutral judge-mediator that is trained in conducting mediations.

It is his/her job to structure the discussion between the citizen (applicant) and the officer of the public body (defendant) and other (third) parties

so that they can communicate with each other effectively and find a solution of the conflict by themselves.

Part 3

The Benefit of Mediation

Get the Spirit of Mediation: Two Sisters and an Orange

Two sisters want an orange, but there is only one orange left.

What can they do?

© Florida Department of Children and Families

Two Sisters and an Orange

One sister went to the juicer with her half of the orange and started to squeeze herself a drink - and she threw out the rind. The amount turned out to be too small to satisfy her.

The other sister, with some difficulty, began to grate the rind of her half of the orange to flavor a cake. She then threw out the juicy pulp.

© Florida Department of Children and Families

Two Sisters and an Orange

Each sister only got half an orange, when in effect, they could have each had the whole orange.

What could the sisters have done in order to satisfy both of their desires for the orange?

Seems quite clear..

© Florida Department of Children and Families

Part 3

How doesMediation work?

Fisher/Ury: 4 Main Steps:

1. separating the people from the problem,

2. focus on interests, not positions,

3. generating a variety of possibilities before deciding what to do and

4. insisting that the result be based on some objective standard.

This method takes into account the „iceberg“…

Issue

Personality

Emotions

Interests, Needs, and Desires

Self-Perceptions and Self-Esteem

Hidden Expectations

Unresolved Issues from the Past

Part 4

Let‘s break it down to a case…

May I invite you to formthree groups :

First group: Eva Müller

Second group: Michael Schulz

Third Group: Fritz Holland

Getting to yes ? Let‘s try it.

Five phases

• introducing the rules of mediation

• collecting issues

• from positions to interests

• contemplating options for a solution

• agreement

The results of mediation are as open as the future is …