Finally the mediation act in Germany came into force the 28th of June 2012 at 1:05 p.m. It has been a long way to get there accompanied by many discussions. But here we are now. The main law is simply titled “Mediationsgesetz” (mediation act). It is part of the “law for the promotion of mediation and other ADR procedures”. This law has been dedicated to implement the requirements of the directive 2008/52/ES. Beyond it purposed to regulate the use of mediation not only referring to cross-border mediations but also to mediation and other ADR procedures in general.
The content of the German Mediation Act is limited to the basic duties and tasks of a mediator, some limitations in the mediator’s function and to a general duty for education and advanced training. The Act provides for the “pure” mediation primarily. This is the mediation procedure outside the court. A judge is allowed to suspend the court procedure in order to initialize a court external mediation (aussergerichtliche Mediation). There have been lots of discussions about the court internal mediation. Court internal mediation is a separated procedure where a judge who is not the sitting judge acts as mediator (gerichtsinterne Mediation). Although this has been foreseen in the draft of law, the Federal Parliament (Bundestag) didn’t provide this kind of procedure. Instead of that judges can act as some kind of “judges of the peace” (Güterichter) where a judge who is not involved in decision-making tries to settle the case. This procedure is slightly different to court internal mediation. This is in respect to the role and the reputation of judges but with an option, to use mediation skills as well. Not everybody is happy with that law. Some belief it’s not going far enough. Others believe it is redundant. However most of mediators feel this is a crucial step to really help mediation coming up. Some smart rules help with that. Lawyers for example will be obliged to mention in the complaint the client’s efforts in mediation done before. Lawyers now have to learn about mediation at least to inform the parties properly. The awareness of mediation definitely is increasing in Germany. The demand on education and on mediation rises also. That’s the visible fact. Reliable statistics about mediation or even the number of mediators are not available yet. The parliament expects the private market to organize itself. There is a term of observation of 2 years. Afterwards the parliament will decide whether and how to improve the law and the administration of mediation in Germany.
Details about the law
The “law for the promotion of mediation and other ADR procedures” is divided in eight articles. Only the first article concerns the mediation act. Artcle 2 by 8 rule the treatment of mediation in various court procedures. These articles are dedicated to change the procedural law.
The mediation act
The definition of mediation in §1 of the mediation act declares mediation to be a confidential and structured procedure, where the parties achieve an amicable solution of the confict, voluntarily and self-responsibly with the help of one or more mediators. A mediator is defined to be an independent and neutral person, without the right of decision making, steering the parties through the mediation process. The parliament changed the draft by deleting the rules about court internal mediation. The legal consequence is, that court internal mediation is not allowed anymore. There is no legal base to practice it. Instead of court internal mediation the law provides an alternative, which is the “Güterichter”, where a not decision making judge will be allowed to arrange a hearing where conflict resolution methods are allowed. The “Güterichter” is not allowed to make decisions. §2 of the mediation act rules the procedure, where the main items are: The mediator has to be choosen by the parties. The mediator has to assure that the parties understand the process and the roles given by it. The mediator is impartial where impartiality means to support the parties similarily. He improves communication and assures that parties are involved appropriately and fairly. He is allowed to caucus when parties agree with that. Third people are only tob e involved where parties agree. Parties are allowed to cancelt he mediation at any time. The mediator is allowed to cancel mediation, when he feels that parties are not able or willing for self-responsible communication. The mediator works towards complete information and understanding. He should recommend parties to take advisory where necesssary. Under the acceptance of the parties, the final agreement may be minuted. §3 of the mediation act rules the dutiy to inform the parties about any issue that could impact his neutrality or indpendency. He stays allowed to proceed the mediation, if the parties agrre with that. It is not allowed to act as a mediator, where the mediator has been involved in “the same affair” before already. He is not allowed to take actions for one of the parties afterwards. The same is when an associated colleague has been involved. But in that case parties may allow the mediation although. The mediator is obliged to inform tha parties on demand about his professional skills. §4 of the mediation act rules confidentiality. The mediator as well as the persons involved are due to confidentiality. There are exemptions where the final agreement is needed for enforcement, because of the ordre public, especially to protect the child interets (“Wohl des Kindes”) or a mediation or to avoid damages of the personal integrity of a person and where facts are obvious or not to be seen a secret. The mediator has to inform the partise about the conditions and the extend of the confidentiality. This rule has been discussed a lot. In fact it is restricting confidentiality compared to the lawyers and other professions. As far as the confidentiality is riled by the law, it would have been possible to negotiate it privately. The law didn’t exceed these limits unfortunately. So confidentiality definitely is not given in penality cases. What ordre public means is open to interpretations. §5 rules educational queries. The mediator has to assure his education and further educations in a self-responsible way. He has to provide knowledge and practical experience. Opposite the draft the parliament added what a qualified education means. It should include knowledges about the basics of mediation, the structure and conditions to be, techniques of communication and negotiation, competence in conflicts, knowledge about the law and the role of law in mediation, practical exercises, roleplays and supervision. A mediator may call himself a certified mediator, when he evidence an education as to be ruled in details by legal degree. The rules about crtification are crucial. The idea is to not make a difference between a mediator and a certified mediator. That means everybody further on can call himself a mediator but not a certified mediator. There are no priviledges assigned to the certified mediator, opposite to Austria for example. That means the law about mediation is targetting the mediator independently if he is certified or not. . §6 of the mediation act allows the ministry of justice to degree details of education and the institutes of education. That the minimum hours of education are fixed on 120 hours is not written in the law but in the grounds of the law. §7 says that there may be expolarions and resarches to be promoted by the governement. §8 forces the governement to report about the development of mediation also about the state of education in between a term of around 5 years.
The procedural laws
Articel 2 by 8 are to change some procedural rules. The main changes are: Opposite to the draft of law there is no enforcibility forseen anymore directly coming out of the final agreement in mediation. As before the final agreement might become enforcable only by a notary, lawers or the court. There is a change of §253 of the civil procedure law. The intruiging idea was to forche lawyers and plaintiffs to mention in the plaint whether a mediation or another ADR procedure has been attempted. This is to force lawyers to learn about the mediation and to talk with the clients about the opportiunity to apply a mediation. The main point that has been changed by the law concerns §278 section 5 of the civil procedure law. Now the siiting judge is allowed to shift the case to a so called Güterichter, which is a colleague not allowed to make decisions in that case. The Güterichter now is expressively allowed to use mediation skills as well as any kind of conflict resolution methods. § 278a of the civil procedure law will be added newly. Here the judge is allowed to recommend mediation or other ADR procedures to the parties. If they agree, the court procedure will be suspended. There are minor changes in other procedure laws which are more or less similar.
Comments about the law
Though mediation has its history now since almost 20 years in Germany, it still is not established as it could be. Nevertheless mediation now is ruled by the law. The mediation act might be seen as to be necessary to fulfill the EU directive. In fact the rules are not further going than privat law allowed already to deal with mediation. Thus the law really is to be seen as to support the implementation of mediation. It seems to work. The press more and more is reporting about mediation, the lawyers interest in learning about mediation is increased and the demand is raising also. Unfortunately there are no statistics availible, how many mediators we have and how many mediations have been demanded. Not to speak about the success rate. However things are on the way and it is good that the governement is observing the market and the aibility of the chambers and associations to self-organize the profession. This might be the biggest challenge since in germany we still haven’t been able to found an umbrella organisation.