INKOVEMA Podcast „Well through time“

#6 – Mediations at state courts – The conciliation proceedings in Germany. In conversation with RiAG Thomas Puls.

Well through time. The podcast about mediation, conflict coaching and organisational consulting.

In this episode, Thomas Puls, judge at the district court in Halle/Saale, trained and practising arbitrator, traces the developments in consensual court proceedings that led to the legal institution of arbitration in 2012 – with the German Mediation Act –. And he provides an insight into his own personal development from a deciding judge to an arbitrating mediator.

We apologise for the sound quality in this episode.

Contents:

  • Making contact with the new conflict resolution process of mediation: Judicial model project in Saxony-Anhalt (2005).
  • „Thank you for taking this on!“ to „Thank you, but I can compare on my own!“: The pros and cons of consensual procedures at a German local court.
  • It's a good thing that the conciliation procedure allows for freedom of method: The path from mediation project to Innovative arbitration proceedings of the ZPO (2012).
  • In Neighbourhood cases there is always something to discover! Favourite case constellations in conciliation proceedings.
  • Decline in the number of lawsuits filed in German courts (link to the INKOVEMA blog post „No reason to complain!“)
  • 1 case per month!: Ratio of judicial to property court activity.
  • I feel more comfortable when I'm not responsible for the legal decision: Repercussions for judicial activity.
  • „He did not behave in court as legal counsel as if he could develop helpful ideas in the conciliation proceedings: Role clarity of lawyers in conciliation proceedings.
  • Advantage of conciliation proceedings: Enforceability of settlements reached by the court of arbitration.
  • We want a conciliation procedure: Admissibility of lawsuits!
  • The requirement to sue as an obstacle to the spread of judicial mediation.

Topic raised:

Is a lawsuit by the conflicting party/parties admissible if your aim is to initiate arbitration proceedings and to obtain the already negotiated settlement as an enforceable deed? 

This question came up in conversation with Thomas Puls and we were both unsure how this should be decided and whether it had already been decided in court.

    • An argument against admissibility is that the action (of necessity by one party) lacks the need for legal protection: the parties no longer have a dispute, only an uncertainty in the event that their settlement ideas or settlement intentions can be safely implemented in the future. This is where the enforceability of the agreements should provide a remedy. However, the court system itself is not responsible for this. The parties can have their agreement made enforceable elsewhere with the help of lawyers, even if this is more expensive. And the courts are there to award real parties to a dispute their rights.
    • This could be supported by the fact that it is a party's right to file a lawsuit, even if it is for tactical reasons. The courts would then take preventative action, as no effective settlement has actually been reached between the parties to the dispute, but should only be reached if the agreement is also enforceable. The conciliation procedure is available for this purpose, even if an action has to be filed first.
    • However, the question practically only relevance, when it would be much more expensive or complicatedenforceability with the help of lawyers (lawyer's settlement pursuant to sections 794 (1) no. 4b, 796a-c ZPO) or before a notary (notarisation by a notary, section 794 (1) sentence 1 no. 5 ZPO)
      than through an arbitrator by means of a court action. As a rule, this cannot be assumed.

Further reading:

  • Greger, R./ Weber, H.: The conciliation proceedings. A guide for judges, lawyers and court administrators. MDR 2019, PP. 1-91.
  • Eidenmüller, H./ Wagner, G.: Mediationsrecht. Ch. 8, Munich 2015.