FIELD OF EXPERTISE: Business Mediation

The field of expertise of business mediation deals with the questions “What is (business) mediation and is there a distinction between mediation and business mediation?”

Although classical mediation is a confidential and structured procedure to work out win-win solutions and a sustainable consensus on one’s own responsibility by means of a neutral, impartial mediator (e.g. neighborhood disputes, divorce, school, intercultural coexistence, criminal law, etc.), on the other hand business mediation deals mainly with the professional context (e.g. conflicts at the workplace, apprentice mediation, tensions between employees and superiors, disputes between departments, conflicts between shareholders, legal disputes between two and/or more companies, etc.).

Environmental mediation (e.g. mediation in the public sector) in infrastructure projects (e.g. road construction, high-voltage power lines, airport, etc.) can also be understood as a type of commercial mediation.

Both types of mediation have in common that mediators work with individuals who are embedded in a system, whereby possible solutions are limited by external influencing factors (e.g. laws, framework conditions). The challenge of a business mediator who has experience in business life is to recognize these interdependencies and interconnections.

The seven classic principles of mediation can also be a particular challenge in business mediation and can have a significant impact on success:

• Principle of voluntariness (in business mediation possibly undermined by peer pressure and authority of the employer?)
• Principle of impartiality (is it possible to balance power imbalances between the parties involved?)
• Principle of neutrality (no substantive interference in the process by the mediator with business expertise)
• Principle of confidentiality (could be undermined by reporting requirements to the client of the mediation)
• Principle of openness and transparency (could possibly be difficult in case of tensions between employees and superiors)
• Principle of personal responsibility

• Principle of openness to results (constrained by external conditions)

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 has been regulated in Germany by the legal basis for the mediation process since 2012 in the Mediation Act (MediationsG). The Mediation Act contains regulations on who may call themselves a certified mediator, what mediation or a mediator is and what rights and obligations the mediator has in the mediation process.

In Austria, on the other hand, the EU Directive is implemented by the Federal Act on Mediation in Civil Matters (Zivilrechts-Mediations-Gesetz – ZivMediatG), which contains much more extensive regulations than its German counterpart.

Outside the EU – if one considers the German-speaking area – there is currently no specific law on mediation in Switzerland. The ZPO Civil Procedure Code regulates the relationship of mediation to civil procedure. At the request of all parties, mediation can take the place of conciliation. In Liechtenstein, on the other hand, there is the Law of December 15, 2004 on Mediation in Civil Matters (Zivilrechts-Mediations-Gesetz; ZMG).

The goals of the business mediation department (as a field of expertise) are:

• Creation of a uniform knowledge concept of mediation and business mediation
• Implementation of business mediation tools into business processes and HR

• Further development of education and training/advanced training of mediation tools to strengthen professional, social and methodological competence and training courses

• Development of a network of experts within ZFRK
• Risk minimization, conflict management by installing business mediation know-how

Possible topics that are addressed within the scope of this section business mediation are:

• Peculiarities and challenges of classical mediation – Business mediation – Mediation in the public sector, etc.
• Crisis management through business mediation
• Problem orientation versus solution orientation – the way is not the goal
• Cross-border mediation
• Mediation training and courses
• Enforceability of mediation agreements
• Barriers to mediation