INKOVEMA Podcast „Well through time“

#11 – The Mediation Act and its white spot. The failure of the German legislator in 2012. In conversation with Reinhard Greger

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

Reinhard Greger, Former judge at the Federal Court of Justice and retired professor at the University of Nuremberg-Erlangen, explains the background to his narrow understanding of the law on the Concept of mediation as well as the consequences that this has for the Clarification assistance and the Telephone shuttle mediation has. He also talks about his disappointments in the course of the Mediation Act, which has hardly led to the Promotion of out-of-court dispute resolution methods (beyond mediation) and with the institute of the court of arbitration „in the rucksack“ no new out-of-court procedure was established. Oh yes, and what all this has to do with the Liability for road accidents in road traffic is not missing either.

Contents:

  • Personal path by the judge and professor of civil procedure law on the methods of out-of-court dispute resolution, including mediation.
  • Functions and tasks of the state court system
  • Dissolution of boundaries in both directions: The ideas of out-of-court dispute resolution methods find their way into the range of state conflict resolution services and vice versa, state law intervenes – with the Mediation Act – in the mediation understanding of private mediators (Juridification, legalisation)
  • Further opening up and expansion of the state court system? No, there is a real obligation on the state to support out-of-court conflict management/dispute resolution methods.
  • Courts must set the course.
  • Understanding mediation
    • Consequences of the legal definition of mediation
    • Mediation Act: Opening up the playing field and limiting it at the same time.

The Mediation Act has not only opened up the legal playing field for mediation, it has also limited it.

It is no longer possible to speak of mediation outside of the Mediation Act.

  • Failure of the legislator to promote out-of-court dispute resolution methods beyond mediation instead of establishing a judicial legal institution that takes up the ideas (arbitrator).
  • Sense of the narrow understanding of the legal concept of mediation: Conceptual clarity!
  • Consequences of incorrect designation by conflict counsellors: Consequences of liability!
  • Liability for road traffic accidents: also an area that has now been legalised, currently with an increasing number of lawsuits

literature discussed:

  • Greger, R., Flying a false flag. On the misuse of the concept of mediation and its consequences, ZKM 2015, 172 ff;
  • Prior, Chr., Clarification assistance meets mediation law..., ZKM 2016, 105.

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