1. Legal Frame of Mediation
Currently there is no Mediation Law in Germany.
Some procedural legal norms of the Code of Civil Procedure (ZPO) and the Code of Family Procedure oblige the courts to look for amicable settlements /see section 2 bellow/.
The draft of the Mediation Act, implementing the requirements of the directive 2008/52/ES, is still in process of legislature. The hearing in the Federal Parliament (Bun-destag) took place the 15th of December 2011. The final hearing in the Upper House of the German Parliament (Bundesrat) is expected for February 2012. Therefore, the German Mediation Act will not be in force before March or April 2012.
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 scope of the draft German Mediation Act refers not only to cross-border mediations, but covers also national mediation proceedings in all areas of law.
The draft Mediation 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 allow a court external mediation (aussergerichtliche Mediation). There have been 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). The Federal Parliament (Bundestag) didn’t provide this kind of procedure any more. 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.
2. Court Referral to Mediation
Art. 278 paragraph 2 of the code of civil procedure (ZPO) obliges the civil courts to begin the hearing with a conciliatory hearing in which the judge has to discuss the issues of fact and of law with the parties and to put questions, if appropriate. According to Art. 278 paragraph 1 of the Code of Civil Procedure (ZPO) the judge shall in every situation of the lawsuit strive for an amicable settlement.
Art. 15 a of the Introductory Law to the Code of Civil Procedure entitles the regional legislator to prescribe that lawsuits on small claims / valued at or up to EUR 750.00/, lawsuits against neighbours and libel suits are admissible only after a prior extrajudicial attempt of conciliation. In addition, a provision in the German Code of Civil Procedure (ZPO) has been amended by providing for court referrals to ADR with the consent of the parties (Sec. 278 para. 6 ZPO).
Pursuant to art. 135 of the Code of Family Procedure the court can oblige the parties to participate at an information session about mediation. In appropriate cases the court shall propose an extrajudicial settlement. Pursuant to art. 156, in cases concerning children the court shall indicate in appropriate cases to mediation or other forms of extrajudicial dispute resolution.
According to an amendment of Sec. 253 (3) Civil Procedure Code, the statement of claims (Klageschrift) has to inform the judge on the parties’ efforts to resolve the dispute in mediation before bringing the action in court and whether there are any reasons excluding mediation.
The amendment of Sec. 278 (5) ZPO include the possibility to transfer the parties to another judge who is acting as conciliator (Güterichter) for a conciliation hearing. Such conciliation hearing must not be confused with the court-annexed mediation. The relegation to a “conciliator-judge” remains in the pure discretion of the court and cannot be declined by the parties. The “conciliator-judge” has the power to schedule a binding hearing date which is not possible in court-annexed mediation. In addition, the “conciliator-judge” has the right to read the records of the case without the prior approval of the parties.
Furthermore, the amendment of Sec. 278a ZPO provides for the proposal of court-annexed mediation. The court proceeding shall be suspended for the time of the mediation proceeding. In the case of court-annexed mediation, the parties have the right to choose the mediator. If the mediator is a judge, he must consider all statutory requirements, e.g. confidentiality, duties of disclosure, training and education.
Parties can, furthermore, bind themselves by all sorts of contracts not to go to court before having tried an amicable settlement of their dispute. Such a contract has to be respected by the courts and if there are no exceptions or reasons for nullity the contract, the court has to reject the lawsuit as inadmissible. The Federal Constitutional Court decided that it is no violation of due process if courts consider mediation clauses as binding contract provisions which must be followed-up before the court proceeding can be started.
3. Confidentiality of Mediation Proceedings
At the moment there is no legal rule that grants confidentiality of mediation proceedings as such. If the mediation is done by a lawyer, he may be subject to his professional confidentiality. This, however, would not be a protection for the mediation, but for the professional secret of lawyers
According to the draft Mediation Act, the mediator and all persons included in the mediation proceeding have the duty of confidentiality regarding all information gathered during the mediation proceeding. The provision is not clear with respect to “all persons” being obliged for confidentiality. According to the statement of the Bundesregierung, only staff of the mediator shall be part of this confidentiality obligation, but not persons as included by the parties, like experts or family members. In addition, it does not include the parties’ duty of confidentiality, as well as an equivalent rule for documents produced during a mediation proceeding.
Based on this provision, all mediators – and persons included by the mediator – shall have the privilege to refuse to give evidence according to Sec. 383 para. 1 no. 6 Civil Procedure Code (ZPO) in civil actions. There is no according privilege for criminal procedures which is criticized by several organisations. The duty of confidentiality should not apply if (1) the disclosure of the mediation result is necessary for the enforcement of the settlement agreement; (2) the disclosure is necessary in order to avoid danger for a child or significant ad-verse effect of the physical or mental integrity of a person (ordre public), or – as an additional but less concrete exception – if (3) the facts are already in public domain or are not relevant enough for confidentiality.
For further confidentiality, e.g. of the parties themselves, experts and other persons included in the mediation proceeding, additional confidentiality agreements will be necessary. Such confidentiality agreements can be used for civil cases, but are not binding for criminal matters.
4. Enforceability of Mediation Agreements
According to the amendment of Sec. 796d ZPO, the settlement agreement can be declared as enforceable on demand of each party, either by the district court as agreed between the parties or as located at the place of the mediation proceeding. The same procedure can be conducted vis-à-vis a notary public.
5. The Impact of Mediation on Statutes of Limitation
According to the already existing Sec. 203 Civil Code (BGB55) the suspension of limitation periods is also relevant for mediation proceedings. The statutory limitation periods are suspended as soon as parties start and continue negotiations for a certain claim or its circumstances. It is undisputed that mediation must be considered as such negotiation. The suspension ends if one party refuses mediation clearly and precisely or if the mediation proceeding ends – either successfully with a final agreement or as a failure.
Insofar, the German legislator was not forced to consider any further regulation considering Art. 8 EU Mediation Directive. However, other legal deadlines (Ausschlussfristen), e. g. the deadline for bringing an action in unfair dismissal cases according to the German Employment Protection Act are not covered by Sec. 203 BGB. Therefore, further regulation seems to be necessary in order to avoid uncertainty and unnecessary legal actions.
6. Requirements for Parties and Lawyers to Consider Mediation as a Dispute Resolution Option
Art. 15 a of the Introductory Law to the Code of Civil Procedure entitles all German states on their own discretion to prescribe that lawsuits on small claims / valued at or up to EUR 750.00/, lawsuits against neighbours and libel suits are admissible only after a prior extrajudicial attempt of conciliation. Several German states /such as Nordrhein-Westfalen, Bayern, Baden-Wurttemberg, Hessen and Brandenburg/ have introduced legislative schemes providing for mandatory ADR.
7. Requirements for Parties to Participate in Mediation
According to the draft Mediation Act, the mediation is voluntary procedure and the parties are free to end the mediation at any time.
8. Accreditation Requirements for Mediators
Currently, there is neither a formal accreditation of mediators, nor a protection of this title. A sort of standardization is granted only by the institutions that provide professional training for mediators. Some professional organizations as BAFM, BM and others have elaborated binding criteria for their members who offer professional training of mediators. Above this, various universities and schools offer such training. The standard formation includes a minimum of 200 hours, a documentation of four mediations, a series of supervisions and a final colloquium. After having finished this training, the graduated persons can use the name of the institution where they graduated and call themselves “mediator (BAFM)”, “mediator University of X”.
The alternatives to regulate the mediator’s training, education and experience have been discussed during the legislative procedure concerning the draft Mediation Act and the discussion is still ongoing. According to the existing draft of the German Mediation Act, it is the own responsibility of the mediator to ensure by sufficient training and continuing education that he is skilled in theory and practice to guide the parties through the mediation proceeding. However, the Bundesrat and political parties, as well as the mediation associations, further involved commercial associations and the Federal Bar Association demand education and certification standards for mediators. The Federal Bar Association presented a proposal for statutory ordinance (Rechtsverordnung) referring to the education of certified mediators with a 90 hours training including the basics of mediation, the practice of mediation, negotiation and communication techniques, conflict management, legal framework for mediation, ethics and role of the mediator as well as supervision.
There are no national statistics available.