Country:
Austria

Language:
English

Index

From fighting for right to
reaching consensus under
the law
Mediation as a responsible
act of establishing what
is right
Private autonomy: checks
and balances, limits
Mediation methods
Laws governing the work
of mediators; setting out
for professional mediation
Legal basis of mediation
The author

1. From fighting for right to reaching consensus under the law

In Austria, conflict solution, both in theoretical and practical terms, has traditionally been determined by the idea of fighting for one's rights, with these fights usually taking the form of court action.
In a fight, however, you would usually have a winner and a loser; more satisfactory results of dispute resolution for either party are rare.
Traditionally, these legal fights have taken the form of civil law suits, with plaintiff and defendant as parties to the dispute, legal representatives as their assistants, and a judge to decide the case.
While this litigation approach puts a premium on deciding - and not on mediating - conflicts, and has till today dominated discussions on who is right and who is wrong, a modern and innovative method has slowly but surely started to become established that aims at consensus against the legal backdrop.
Innovations, almost all of them less than ten years old, are being developed not only to settle disputes out of court but to supplement or replace the processes used by legislatures to budget funds, by business to manage employees and by therapists to treat families.
Also new institutions have emerged and new methods are being applied in resolving conflicts such as those between neighboring families, teachers and pupils, or parents and their kids.
What most of these innovations have in common is the disputants taking responsibility in settling the conflict - actually quite a revolutionary aspect.
But what is the function of law if the disputants, in mediation consultation, not only decide by themselves as to which solution would be the best and fairest one in their situation but also fix and control their own agreement?

As an out-of-court, voluntary and responsible conflict solution procedure, mediation complements other forms of conflict solution.
Mediation consultation leads disputants to privately and autonomously outline the contours of disputes.
Rather than determining what is right in the concrete case, medication tries to establish right: assisted by a mediator, a new basis for what is right with regard to the relationship of the disputants, or their problems, is worked out on the legal basis provided for, taking into account the economic, personal and social circumstances of everyone involved in the disputes and safeguarding their interests.
The law, therefore, is not the only reference basis for the decision taken, it is rather considered as one of many possible determining factors, with the private and autonomous decision of involved individuals on how to resolve the dispute constituting the centerpiece of mediation efforts. And the law does not provide the only key to settling disputes; from the parties' vantage points, their own interests must be safeguarded.
The solution of a conflict as provided for by law may but need not necessarily be the solution that best meets the parties' interests.
While legal standards reduce situations to elements that need to be taken due regard of, agreements between disputants leave ample room for further facts, additional interests and standards to be factored in.
Conflict solution under legal provisions is reduced to an abstract of the conflict situation as it really is and constitutes a static snapshot only. Mediators typically promote a candid and dynamic exchange on past events, encouraging parties to think constructively and creatively about ways in which their differences might be resolved, thus facilitating the application of models for future conflict solution.
Against this consensual backdrop disputants must know about their legal situation - an element of the parties' informed autonomy and their negotiating power - and it is the duty of legal representatives assisting disputants, or of attorneys at family counseling offices.
The integration of additional aspects in discussing a conflict can not mean that other aspects, viz. legal ones, are disregarded: only with a party being fully aware thereof, a legal claim in searching a solution that meets the best interest of everybody involved can be waived. Failing this, the getting along of disputants in the future is jeopardized for lack of having paid adequate heed to legal rights.
Mediation that has resulted in a solution that is in the best interest of the parties involved has created right, autonomous right, and for that it is no alternative to the law, which is not only geared to deciding but also, and in particular, to devising a reference framework. The law therefore is an important factor in mediation. It is just that it is factored in slightly differently.

The limits of autonomous solutions to disputes are outlined by the law, which precludes tailor-made autonomy for some matters in dispute. Examples are, for instance, agreements contrary to public policy, formal requirements for setting up marriage contracts, last wills and testaments, transfers of ownership; sole custody of a parent following divorce, parents' maintenance obligations.

Mediation does not aim at imposing decisions but at arriving at an agreement that ably governs the disputants' living conditions and other aspects to their mutual benefit in the future as well. Such agreement does not result from the parties submitting to the term of a decision imposed on them; rather it is the self-determined consequence of everybody involved in the mediation process.
Mediation does not want to do away with time-honored legal methodology, which is of importance for legal assessments in mediation procedures, but ties to complement by paying heed to changed requirements.

The four-term course offered by our Mediation and Conflict Management Institute addresses mainly lawyers, educators, psychologists, social and economic scientists, as well a social workers. It comprises 260 hours of teaching, which is in line with both national and international standards.

In Austria, a total of about 300 specially trained mediators do their work either on a freelance basis or they work for institutions. The majority of the mediators work in the fields of law or psychology/sociology and practice mediation as a sideline.
Mediation in cases of separation or divorce is the main field of application in Austria.

The professional mediator is bound by a confidentiality obligation regarding those facts s/he gains knowledge of, or is entrusted with, in the course of mediation talks; excluded is only the contents and interpretation of divorce agreements reached during mediation.
The confidentiality obligation, laid down in the Marriage Act, section 1, is also confirmed by the amended Criminal Code, section 301, para. 1, which provides for the mediator's prosecution in case a vested interest is violated by non-observance of secrecy (private prosecution).

The Marriage Act, section 99, para. 1, second sentence, provides for the discontinuation of limitation periods and other deadlines for asserting claims in connection with the divorce of a marriage for the duration of mediation talks (in analogy to the General Civil Code, section 1496).

The Code of Civil Procedure, section 460, has been amended by item 6a which, in connection with parties not represented by a lawyer, provides for an obligation to obtain information on the part of the court as to knowledge of the consequences of divorce.
In case there is a lack of information the judge is required to make reference to the relevant offer for consultation and to postpone the hearing so that the parties may obtain information.

The General Civil Code, section 460, item 7, and section 460, item 7a, provide for mediation to be used in particular in connection with a fair dispute on the consequences of divorce and also for the postponement of hearings for parties to use mediation services.