. I don’t have to explain, that this is a reduced communication, which just excludes the one partner from the others life experiences. There is no surprise if spouses don’t really know the identity of their partners, if the roles of wife, mother, husband or father are unsettled as a consequence of emancipation. There’s even no surprise if their expectations of each other are unsatisfiable.
Our juridical system gives the divorced spouses enough opportunities to avoid talking and negotiating, by giving the responsibility of finding conflict solutions into the hands of lawyers. This strategy seems to be very comfortable but it isn’t a successful long term solution. In the end, it doesn’t support the process of redefining the relationship between the divorced husband and the divorced wife very well. There are still a lot of lawyers who prohibit their clients to talk to the adversarial spouses. They want to keep negotiations under juridical control.
Because a lack of communication causes the failure of families, communication is the most important tool for renewing the relationship of spouses as well as dividing it. In any case, divorce means building a new organisation around the broken family. It is necessary to talk to each other to find new definitions for what a divorced father is, what a single parent means and what the value of alimentations and the need of custody is. An investigation proves that 80% of divorced mothers didn’t know the family background of their own children. How can they discuss family affairs? How can a lawyer act correctly on behalf of those wives?
Mediation seems to be an adequate remedy for the lack of communication. It describes a procedure to solve conflicts by an autonomous regulation, which has to be negotiated by the spouses. Mediation shows us, how to communicate. Unfortunately, the conditions of using mediation are much too high for an increasing demand. In addition, the mentality of arguing spouses is not even convenient for the demand of mediation. Mediation needs cooperation and the belief, that win-win results are possible without a strategic risk. As most people don’t have an education or experience of this, the demand for mediation in most European countries is negligible.
However, a missing demand for mediation should not mean a continued lack of communication. There are resources to be devoted. As our juridical system gives the customer chances to avoid speaking, it gives him opportunities for getting on speaking terms as well. It’s my experience, that the juridical system is very well conditioned to implement communication as a condition for solving conflicts. A justice project in Rhineland-Palatinais a good example for that. It proves that there are two different handlings, court procedures may have:
- The juridical communication as a formal communication,
which substitutes the communication between the parties
- The juridical communication as an informal communication,
which might be supported by the formal communication and
which support the communication between the parties itself.
In addition to that, there are many procedures with different methods which should at least head to a conflict solution. Most of them are unknown. There are many offers, too many for a customer to know and to use.
It always depends on the situation as to the best procedure for solving conflicts. Therefore the questions raised are: who is the right counselor, which is the right way, what is the next step, does the conflict need escalation or de-escalation, what kind of procedure supports the needs of a conflict in its own flow the best?
Usually it’s up to the customer to answer these questions. So he becomes his own conflict manager without a real chance of steering the conflict.
Conflict in flow needs more than a single procedure
Experts distinguish between the procedures by the role of the third person. Due to that, the need of the customer is to be served by different kinds of mediation, getting nearer and nearer to the court procedure:
- pure mediation
A neutral, third person without the power to decide to help the parties to find their own regulation solving the conflict
- court annexed mediation
The judge emphasizes the meaning and the opportunity of a pure mediation, which is to be taken outside the court. Mediation is a separate procedure causing additional costs.
- court internal mediation
The judge emphasizes the meaning and the opportunity of a pure mediation, which is to be taken inside the court, without additional costs, done by a judge, who is prohibited to decide the case. Mediation is a separate procedure too, but it doesn’t cause additional costs at the moment.
- court procedure
A neutral, third person has got the power to decide the case.
The frontiers between the different procedures are highly formalized and hardly suited to the needs of the customer in conflict. In the end, the parties have to repeat or to change a procedure if they want to adopt their strategy to the flow of the conflict. That’s a condition, which strengthens the change of procedures overall.
Unfortunately, the conflict ignores proceeding rules. That’s what the customer feels. His point of view follows strategic needs. Due to a strategic planning of a conflict solution, he needs a flexible handling to escalate, de-escalate, force, allow, discuss or other interventions improving a conflict solution. From a strategic point of view, this kind of flexibility is a very important issue of procedures. It allows a migration from confrontation to cooperation. The technique, already in use, is called
Integrated mediation is not a procedure for itself. It is rather a method of handling the procedures, implying discussions about the sense of a procedure, its aim, reason, needs and interests of all participants. It’s a combination between the two handlings of a court proceeding. Primarily there is a strategic thinking.
Basically people use two strategies to a conflict solution:
- the cooperative way of conflict solution
which is represented by mediation and
- the confrontational way,
which is represented by the justice.
It’s up to you to estimate the number of cases which belongs to the one or the other strategy. In family cases, the demand may be affected by the relationship of the spouses. A survey proves that 25% of divorced spouses feel something like sympathy or love for each other. They will prefer a cooperative way of conflict solution. 20% are strictly in conflict. They will prefer an adversarial way of conflict solution. Only additional 5% are fighting like in “war of the roses”. The remaining 50% in between are indifferent. Their strategy is not yet manifested. That means, it can be applicable to cooperative or adversarial procedures.
Altogether there are three areas of strategy, the adversarial area, the cooperative area and the area in between the poles of confrontation and cooperation, which is called potential area. The potential area is like a bridge. It serves the 50% of indifferent spouses, finding the best strategy of conflict solution. It allows the 20% of arguing and the 5% of fighting spouses to limit the damage.
Aim orientated strategy is worth pursuing. If you confirm, that people should be persuaded to consensual negotiated solutions, their way to cooperative strategies should be easier than the way of confrontation we are used to. Indeed there is a chance to change the procedure from court (adversarial) to mediation (cooperative). But the change includes the change of a procedure with new costs, new risks and new fears. To support the way to cooperative row systems, there must be an easy change of strategies.
It might be to your surprise, but it’s even the court procedure which is – at the moment – the most flexible procedure serving all kinds of possible strategies. Therefore the potential area should officially be included to the court cases. The justice project running in Koblenz proves the success of this modus operandi.
The market prevents the demand for the right procedure
Even if it is not the purpose of mediation itself, mediation is welcome in order to reduce the number of pending court cases. Indeed, mediation is coming up, but it comes too slowly. The demand for mediation as an own procedure to solve conflicts is still missing, because the needs of the customers differ. Regarding the progress of a conflict, there are 4 phases of typical demand.
The display above shows very clearly, that the needs for mediation raises not until phase three. Since the market is growing more and more competitive, the customer will be confused by a tremendous offer of helping. So it’s up to him to be his own conflict-manager without knowledge and experience. From his point of view, the market looks as follows.
He sees discordant offers with differing aims, primarily gaining positions or claims. The situation covers dilemmas of all, the customer, the justice, the lawyers (advocates), the mediators, and even the dilemma of the market itself.
Dilemma of customer
As shown before, the customer is curious about the offers. There is no benchmarking for qualifying and no orientation, what’s the most fitting support or who’s the best matching counselor. Without knowing, he decides the procedure and the strategy of conflict solution by choosing a counselor.
Choosing a psychologist means taking the decision to heal the marriage. Choosing a lawyer may reduce the chances to heal the marriage. The lawyer will advise the procedures he knows best and earns most. People say: “if a man learned to use a hammer, every problem will be a nail”. Therefore it’s the customers risk to choose the wrong procedure by the wrong counselor, as to say at least it is up to the customer to choose the way of conflict solution by choosing the right counselor.
For that, the customer needs an advice for advice. He needs to know the use of the different professions, their ability and the possible procedures and methods which helps him finding the right way for solution. The knowledge is not enough. Without personal experience, he might be interested in new ways of solution finding, like ADR is. But in case of trouble he reacts regressively into former conflict behaviour. That means, he’ll fight as educated and used to, by gaining positions.
The resolution is first to give transparency by neutral and easy information to ways and procedures of DR and ADR, to find a benchmarking for a better differentiation between the procedures and the possible results and strategies. The customer should know what kind of conflict solution is to be chosen for best results. For this understanding it is also necessary to educate people in communication. Third it is very important to arrange chances for collecting experience with ADR, namely where conflicts are to be solved in court. Fourthly procedures should be changeable.
Dilemma of justice
Helping the clients to find autonomous regulations is even useful to overcome the dilemma of most justice reforms. The aim of justice reform is to accelerate the procedures, to reduce the backlogs and to effect enforcement. This sound in the language of an entrepreneur as follows: justice improves its product.
Usually, improving the quality of products leads to an increased demand. But that’s not wanted by the justice. Justice wants the opposite, namely to decrease the demand for court procedure and in turn to reduce the burden of costs. The dilemma is that justice is not allowed to reduce the demand by higher prices.
The solution of that dilemma is to empower the clients by giving them more autonomy. If the clients are acting more and more autonomously, their need for court aided support will decrease, although the quality of court procedures is improving.
Dilemma of Lawyers
The wish to reduce backlogs in justice may frighten the lawyers, as they earn by court proceedings. Less court procedures means less income. Lawyers will find a larger market by advising, but not by mediating.
More mediation doesn’t lead to more jobs for lawyers, except they are doing the mediation for themselves. If the parties use cooperative strategies, they often need not more than one juridical adviser. Instead of 3 lawyers there are only one or two lawyers involved.
Family lawyers are not very well known about their product. They feel more as an organ of judicature than as an entrepreneur. I like to ask family lawyers (advocates) about their product. Aside from the fact that they hardly know how to answer this question, they feel there are 3 relevant aspects:
- soul care
My next question to the family lawyers shows the problem. The question regards the quota of each aspect. It’s amazing, if lawyers answer, the aspect of soul care will take 80% of the time they have to spend on their clients. The minimum quota ever answered was 25%. Too much for professions, who were neither educated as a priest nor trained as a social worker. It’s a resource beside the core business of a lawyer that can be outsourced very well.
The solution is to involve more professional know how and to discuss economic aspects openly.
Dilemma of mediators
The efforts to reduce backlogs in justice are very welcome for mediators. They know that every conflict needs a third person to be solved. Unfortunately most mediators feel that mediation is only an alternative to court procedure. The fact is, mediation is difficult to explain and the conditions for demand are much too high for the rowing conflict parties to demand. As there is too much ideology behind mediation, it is hardly customized.
The solution is, rebuilding mediation as a product which is very close to the needs of a customer.
Dilemma of the market itself
To gain more market and more money, the professions need more business volume. The result for that is a strong competition, with a scathing advertisement. The professions are shouting like puffers:
- Mediation is better than court procedures
- Try mediation, it doesn’t matter, if it will fail,
you can go to court in any case.
- Lawyers help enforcing a claim, more effectively than mediators
- Arbitration is more professional than court proceedings, as you can choose judges who have best knowledge of the business line
This purblind approach suffers under the motto: more of the same. The strategy is restrictive and leads to a factual constriction of the individual offers. The consequence is a more and more confused and resigned customer, who cannot decide, which advertising is the right one. The distance between the offered product and the customers’ needs are expanding. It ignores what the customer wants to become: a simple, cheap and effective, not escalating solution of his problem.
To resolute all the dilemmas mentioned above, we need a changing perspective.
The change of perspectives gives new impulses
As told, the perspective of solving problems is very specific and reduced to the view of each profession. That might be changed.
Meaning of justice
Of course, justice is a state authority and it is very important to prevent people from self justice. Therefore, the monopoly of justice is acceptable and necessary above all. But in civil matters and even in family cases, rowing and conflicts belong to a very private communication which is primarily to the people for their own and not a state affair. Surviving conflicts helps personal development. It is an important social training that should not be taken away from people. Only if they are not able to solve conflicts, it might be up to the justice to step in.
Knowing, that conflicts have to be solved by the parties for themselves, the support of justice should be reduced by empowering the spouses to solve the conflict instead of adjudging it. You can’t command someone to communicate as you can’t command peace or love. The meaning of justice is to be found in judgments and procedures which help the parties help themselves. For that, the view on family cases, especially divorces, is to be broadened over the juridical aspects to the interests and effects.
The answer will be given by assimilating the needs of the customer first. His aims lead to a long termed satisfaction, which might be called contentedness. Contentedness will arise, if all the procedures around the divorce are heading to the best possible results. There is no real profit, if a divorced wife wins the court procedure by demotivating her husband to earn enough money in future. In fact, many husbands prefer unemployment. An investigation proves that a minimum of 5% of the registered non-workers are unemployed due to the divorce.
A counselor who ensures his clients the best possible results has to handle such effects. For that, he has to combine and to coordinate 4 very different procedures
- Juridical cases
- Social change
Of course there is no profession providing the whole knowledge needed. But there is a chance to enhance the product. You will discover a relationship between long term contentedness of the customers and reduced social damages. Long term contentedness comes together with a clarifying of the role .Voluntary negotiations between the spouses are the best guarantee for long term solutions. To come to a voluntary negotiation you need respect and acceptance. As the role of the parties is being formed by the negotiations, the settlement always respects the interests of each party, including a binding definition of the new relationship. In order to gain the best results the strategy of every procedure should include using the own resources of the clients, so they become more and more autonomous.
Autonomy is a key word in respect to the justice project mentioned above. A conventional point of view describes the judge as responsible for the result. Even most judges feel responsible for themselves, they cannot predict contentedness at all. The lawyers also feel the judge responsible, disregarding their own contribution to the success or failure of the procedure. Regarding the contributions of all participants there might be a sense of team, whose members are in total responsible for the result of the procedure. The responsibility of each member of that team should be clarified.
Long term aims
The justice project in Koblenz gathers two components:
- The first component is teaching conflict training and integrated mediation with new communication and strategies to improve conventional divorces.
- The second component refers to the experience of a workgroup between judges, lawyers, social workers and psychologists.
You need both components to implement new structures. One is individual and the other is of a systemic nature. The experience, gained in such workgroups, proves the necessity of a systemic solution. It is important to distribute the idea of mediation than the product or the procedure. The customer should use the advised procedure that helps him most. Since the conflict ignores formal rules and barriers of procedure, the customer needs a systemic use of all procedures as a concert of equal valued steps to the best solution.
Benchmarking and controlling aspects
The advertising of mediation and even of justice means that mediation would have better results than justice. That’s not the truth. There is no possible method of assessment, because the result of a conflict intervention depends always on the situation and what people make out of it. If the party isn’t ready to solve its conflict voluntary and cooperatively, mediation has neither a chance to succeed nor it is allowed to proceed.
In those cases, it is up to the lawyers to help the parties solve their conflict. As told above, judges and advocates should broaden their view on long-term results of what they are doing. Usually a lawyer cannot see if the judgment is useful for the related family members or not. Was it helpful to change child custody or not. Questions like that keep open, as the juridical professions don’t have instruments to gather feed-back beyond the juridical questions.
In fact networking does not only enhance the product but saves economical resources of the counselor and the services around the conflict. Surveys of lawyers divided the essential parts of their work to
- legal advice,
- proceeding and
- soul care.
Soul care is a term I use to describe an emotional management, which lawyers feel, has is to be given to the client aside divorce. In percentage terms the emotional support takes a huge part of the whole work, up to 80%. That means, lawyers are wasting 80% of ineffective resources that can be shared without loss and to the benefit of their own core business.
A win-win supporting solution
It’s not easy to find the most useful win-win situation for all the interests of the participants, the lawyers, the judges, the social workers, the psychologists, the mediators. Gaining a win-win situation means, giving profit to all the participants and finding a solution for all the dilemmas and views mentioned above.
Surprisingly, the win-win situation is getting a name by taking the perspective of a customer. Empowering the autonomy of the clients and describing the products out of the holistic perspective of the customer provide many advantages:
- liberate resources of lawyer and justice,
- supporting resources of the customer,
- provide contentedness to the customer,
- keeping authority and meaning,
- reduce demand for justice,
- improve market for peaceful conflict solutions
- enhance offer of lawyers
- reduce personal and social damage by divorce
Lawyers, as told, will provide procedures only if they’ll gain any profits by that for themselves. The profit follows an increasing demand which will be the result of a long-termed contentedness of the customer. Helping, to find own solutions, forces transparency about the product and the interests. It will give more orientation and a good condition for networking.
At least, the legal concept, to be detected, is offering compatible, solution and resources oriented procedures that show a deep empathy with the needs of the customer and which are able to accompany the clients in their conflict behaviour. You’ll find it while supporting the use of mediation primarily in conventional systems.
The aim is to be reached by little steps beginning with basic questions.
- What’s our aim in that procedure, gaining positions or solving conflicts?
- What result is to be expected in a short term and in a long term view?
- What’s the relationship between the spouses after the divorce?
It’s an illusion to believe that the sense of a court procedure is fixed. The reality is, that it is not. There are great discrepancies between the ideas why people should involve the judge to their conflict solution. Do they want the judge to help finding solutions or should he help demolishing the adversary?
Running projects as a base of experience
There are already some projects running right under the sense of divorce management. They provide the idea of building a valuable way of conflict solution, just common to the perspectives and resolutions described above. The projects are:
- Justice project
The name of the justice project is: “integrated mediation in family cases”. Its purpose is, renewing the communication in family cases. The project has been running since 2001 in Rhineland Palatina. 21 judges have been trained in integrated mediation and divorce management. The result is: Spouses revert to communication, the participants are mostly satisfied. The scientific evaluation will last until 2008.
That’s the name of an informal association of workgroups around divorces. Judges, advocats, psychologists, mediators, social workers and other professions who are in touch with divorce and other family cases meet nearly monthly to discuss cases and solutions primarily to avoid damage from the children. The advantage to be felt is an improvement of the professional work of lawyers by outsourcing social care to psychologists and social workers.
Building and leading a platform to provide and distribute neutral information about family conflicts using the internet. The family minister of Rhineland Palatina is patron.
- Divorce Management
This project leads to a new understanding of service around divorce. It is called divorce management. Divorce management steers all the procedures around the divorce. It is actually used to develop the interfaces between the different procedures. It gives a kind of benchmarking to make the procedures comparable and compatible to each other. Divorce management is educated by a high school in Koblenz.
- Twinning project in Latvia
Implementing ADR as a tool of justice reform is a twinning project, which will start in autumn this year in Latvia. This project gives a good basis for the discussion of how mediation is to be accepted by the customer and professionals as well.
Finding a common and constructive base to solve family conflicts is a challenge. The projects mentioned prove the success of new ideas and thinking. They might help the EU by participating a new practical experience and a new kind of view. Indeed, the proposed solutions are fitting very well to the EU program:
- As marriage is the best way to unite people, there should be an effort to motivate spouses not only for building but also for keeping cross-bordered marriages. For that the issues of marriage and divorce law are of common interest in all EU member states and to build an interface between the procedures and strategies like integrated mediation does.
- As procedures define the kind of conflict solution, it’s up to the EU to provide constructive and adequate procedures for good conflict solutions in all member states.
- If law respects the idea of solving conflicts, it should prove its rules and language for that. Harmonizing the law means giving the chance to communicate and improving the autonomy of the participants. Bringing in a benchmarking makes the procedures compatible and comparable.
Now time has come to broaden the experience and the use of the projects mentioned above. The projects might be helped by the EU to become international. Every help is useful, primarily wanted are contacts, financing, publishing, advising or every kind of cooperation.
the information point should provide information about international issues of family cases. For that, Portafamilia has to become a multi-polyglot platform. The content will describe the divorce procedures in all European countries in a holistic sense, it will mention the institutions as the counselors and list the country law of all member states, the psychological, cultural and mental conditions.
the very effective network in family cases should be exported to other member states. The vision is to build an international network according to the Landeskonferenz as an international platform to exchange experience.
- The Landeskonferenz, Portafamilia and the idea of the justice project may be a milestone for building up an international family support center by creating workgroups and meeting points, encouraging the families.
- amplifying of justice project
the experience of the justice project in Rhineland Palatina should be exported. I would appreciate it, if integrated mediation or divorce management were to be tested in other member states
It would be a pleasure for me, if you would give me the opportunity to explain more about these ideas and to discuss the items with you in detail. There are a lot of issues, to be included in the rules of family law.