The dispute mediator – the unusual third party
In the past Blog post we presented noteworthy aspects of VSBG mediation compared to "classic" mediation within the meaning of the Mediation Act. This time we look at the Role of the mediator in more detail. The dispute mediator is the third party in the conflict, as formulated in the VSBG, who conducts the respective proceedings. The special features of the VSBG should be clearly visible in its role and formulation of tasks.
1. the dispute mediator - new and legally defined
If the German legislator had been less creative with the name and had instead stuck to the vocabulary of the ADR Directive (Alternative Dispute Resolution), this blog post would be about "natural persons entrusted with alternative dispute resolution". However, the legislator opted for "dispute mediator" in Section 6 (1) VSBG.
There is an even more important idea behind this choice of term: the specific procedure in consumer disputes cannot be determined by law. The choice between several options remains a decision to be made in the specific case. The new term "dispute mediator" is therefore (also) a term for other third parties in the conflict: the mediator, conciliator, arbitrator and ombudsman or ombudswoman. They all conduct alternative dispute resolution proceedings as an alternative to court proceedings.
As a result, the legislator has created a hybrid type of procedure and third party with the dispute mediator, the dogmatic categorisation of which raises many questions. The basic structures of the third party in the conflict illustrate why the dispute mediator raises dogmatic questions.
(Here you can read an article about the third party in the conflict: 25 Basics of mediation – Part 8:Third parties instead of kicks.)
2. basic structures of the third party in the conflict
Third parties are involved as actors responsible for the proceedings without being in coalition with one of the parties. In principle, there are the roles of judge, arbitrator and mediator. They embody the basic role requirements for third parties. The rest are mixtures.
Let's start with the JudgeThe conflict resolution procedure is designed to reach a final decision, whereby the resolution of the conflict through the third party. His judgement does not decide on behalf of the parties involved, but "on behalf of the people". The judge is neutral and uses a "non-participant" standard of resolution against which he measures the concerns of the parties. This sounds complicated, but simply means "the law". However, since the standard can also be a different one, it is worth using a more abstract formulation. For example, the referee in football has the (international) football rules as a yardstick, the head of the family the family rules. The standard is always the rules of the (larger) community in which the parties to the dispute are embedded. And the judge decides on behalf of this community. In football, the teams have rarely agreed the rules among themselves for the specific game at hand. And even if the siblings have agreed something between themselves that is now in dispute and the mother is to decide, the yardstick for her decision is not the agreement itself, but, for example, her maternal standard of value and how the agreement of her children is to be assessed in its light – and thus the conflict surrounding this agreement.
In contrast, the third party and the role of a Schlichters no decision-making authority. The conflict is resolved here (at best) thanks to of the selected third party. This is the case if the solution proposed by the mediator is accepted by the parties involved. Which, of course, they do not have to do.
Common to both is the Delegation of the conflict to the third party.
Different with a Mediation. Neither through still thanks to; the solution is described here with the third party. Mediators do not make decisions. Nor is it their job to propose solutions to the parties involved. At least, this is not part of their core business. Rather, mediators provide the procedure for conflict management and solution-orientated verbal negotiation. In doing so, they ensure non-violent and equal communication between the parties involved.
Another special feature of mediation is the idea of development, (personal) growth or transformation. No matter what you call it, it goes beyond the conflict into the future of the parties involved. While judges and arbitrators are always concerned with reconciliation and mediation, (good) mediators also focus on the development of the conflict relationship. Not only the past and present, but also the future is put on the table. "What will we do differently in the future?" Transformation means, above all, exploiting opportunities; utilising the creative power of cooperation.
3. tasks and competences of the mediator
How does the VSBG dispute mediator fit into this differentiated system with his tasks and competences?
The dispute mediator is the executive body of the consumer arbitration board. According to Section 6 (1) VSBG, he is the person "who is entrusted with the out-of-court settlement of disputes and is responsible for the impartial and fair conduct of the proceedings".
Of course, other people can also work in the consumer arbitration centres. As a rule, the dispute mediator will even be dependent on such support. However, such employees do not become dispute mediators within the meaning of the VSBG. The responsibility (externally) remains with the mediator. Finally, the law contains special requirements regarding the qualification and impartiality of the mediator.
So what exactly does it mean to be in charge of the proceedings? What is the role of the mediator and what can other employees do?
Answers to these questions can be found in the VSBG on the one hand and in the respective rules of procedure, which the consumer arbitration boards must set for themselves, on the other. According to the VSBG, the mediator is responsible in particular for deciding on the following,
- to carry out or reject the procedure (§ 14) and
- to terminate the proceedings (Section 15 (2)) and
- any arbitration award pursuant to Section 19 VSBG, which can only be submitted by the mediator.
The mediator must always make these decisions in the specific context of the proceedings, namely consumer law. Consumer law is the dispute resolver's prompterif they do not know exactly what to do under the VSBG. Since only the dispute mediator has the legal knowledge required by the VSBG, he or she must also make the relevant decisions personally and not other persons in the conciliation body.
In practical terms, this means something like this: If#s becomes difficult, the mediator has to get involved personally. Simple tasks, on the other hand, can also be performed by employees who are not mediators within the meaning of the VSBG. This applies in particular to tasks where there is no room for manoeuvre anyway, such as the fulfilment of information obligations (Section 10 VSBG).
4. confrontation of judge, arbitrator, mediators with the mediator
After we have Overview of the basic structures of the third party in general and the Tasks and competences of the dispute mediator in particular we will now move on to categorising the mediator as a third party to the conflict. This is no easy task if you bear in mind that the mediator can take on different roles depending on the procedure chosen. The hybrid third party, but how much judge, arbitrator and mediator is there in the dispute mediator? Where are the similarities and differences?
a. Similarities with the mediator
The various third parties are all subject to the Neutrality and impartiality. For the judge, this arises from the rule of law, for the mediator from Section 1 (2) and Section 3 (1) sentence 1 Mediation Act (possibly derived from Section 18 VSBG). The same applies to the various mediation regulations. The neutrality of the mediator results, for example, from the three-year distance requirement from companies and associations regulated in Section 6 (3) VSBG and from the application of consumer law.
§ Section 7 (1) sentence 2 VSBG also stipulates that the mediator must offer a guarantee of impartial dispute resolution. In the case of judges, the requirement of impartiality relates primarily to the result, i.e. the judgement. As the dispute mediator cannot make a final decision, the provision aims to ensure equal treatment in the respective dispute resolution procedure.
Also the The imperative of independence applies to all third parties. Judges must be independent in accordance with Art. 97 Para. 1 GG, mediators in accordance with § 1 Para. 2 MediationsG. This is regulated for the mediator in Section 7 VSBG. However, independence (and the associated freedom from instructions) has two dimensions here: On the one hand, it concerns the relationship between the dispute mediator and the parties. On the other hand, it also concerns the relationship between the dispute mediator and the consumer dispute resolution body. In principle, the dispute mediator should be able to conduct the proceedings without interference from the dispute resolution body. In this respect, there are recognisable similarities to the relationship between the judge and the judiciary.
b. Differences to the mediator
However, what clearly distinguishes the dispute mediator from the judge is their lack of decision-making authority. The hybrid mediator is able to take on different procedural roles. Nevertheless, they cannot don the robes of a judge. Like the mediator or arbitrator, the dispute mediator is not authorised to make (legally) binding decisions. This is ensured by Section 5 (2) VSBG, which prohibits arbitration boards from conducting such proceedings "which impose a binding solution on the consumer or which exclude the consumer's right to appeal to the courts". At most, the mediator can make suggestions for settling the dispute, cf. section 19 VSBG.
A further decisive difference becomes apparent when one considers the framework and limitations within which the respective third party operates. The judge is "subject only to the law" (Section 25 DRiG). The mediator is also bound by the contractual agreements in the mediation contract.
And the mediator? They are "subject to a special „law", namely the consumer protection laws. Consumer law is always the guiding principle of the dispute mediator's work, even if he conducts mediation, as provided for in Section 18 VSBG. (This applies in any case if one follows the view on § 18 VSBG, as we have presented it here in the last blog post have explained).
This is because mediation in the context of the VSBG follows special rules, e.g. that the mediator must grant the parties a right to be heard - as in court (Art. 103 Para. 1 GG).
c. Interim position of the mediator by law
Up to now, the specific role holders in practice have drawn on the toolbox of the other third parties, even if only for individual cases. It is not uncommon for mediators, for example, to be asked to come up with concrete proposals for solutions - after all, it is often assumed that they have the most experience with conflicts. Even the judge, who tries to mediate in the process, uses borrowings that are not directly attributed to his role. But how else, he may think to himself, will the parties find a good end if they do not find a solution for themselves; in any case, it is unlikely to be the legally based judgement.
The VSBG dispute mediator is a new way of organising the role of the third party, even if it can be derived from the basic structures. What is particularly unusual and new is that the legislator has created this role and, for the first time, incorporated judicial and mediative elements in an alternative dispute resolution procedure. The extent to which this mediator will be successful in practice remains to be seen.
Quite officially and formally, a hybrid type of procedure has been created with "consideration for the diversity of conceivable alternative conflict resolution procedures" (according to the "explanatory memorandum to the law"), which combines several role models.
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