10 facts about the Mediation Act – and a few tips

25 Basics of mediation (1)

The first article of the 25 basics deals with the German Mediation Act, which has been in force since July 2012.

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1. history of origin

The German Mediation Act came into force as Act on the Promotion of Mediation and Other Forms of Extrajudicial Conflict Resolution in force on 26 July 2012.

However, as early as 1999, the European Council called on its member states - including Germany - to standardise alternative dispute resolution procedures in law. As a result, Austria introduced a mediation law for civil law matters in 2003. However, other countries did not follow suit. A corresponding EU directive (2008/52/EC) was therefore issued on 21 May 2008, which obliged the member states to formulate national provisions. However, this directive related exclusively to cross-border matters. Germany saw the implementation of this directive as an opportunity not only to regulate cross-border cases, but also to establish out-of-court dispute resolution methods for national matters. However, this led to delays, with the result that the German Mediation Act was only signed by the Federal President on 21 July 2012 and officially came into force a week later.

2. changed framework conditions for lawyers

The Mediation Act has nine articles and is pleasantly narrow in scope. Article 1 formulates the essential mediation-specific issues in nine paragraphs. The Article 2 to 8 change the standards affected by this in the various court procedure laws. The legal promotion of mediation has an impact on the different procedural rules of the other court channels. For example, the Labour Court Act and the Code of Civil Procedure had to be amended accordingly.

This has an impact on the practice of lawyers (and judges). For example, if a lawyer files a civil action, the amended Code of Civil Procedure requires her to explain whether an attempt was made to resolve the conflict by means of mediation (or another out-of-court conflict resolution procedure) before the action was filed.

But that alone is not enough for the legislator. Lawyers must also explain (and judges must pay attention to this) what reasons currently stand in the way of such proceedings, so that a civil action appears necessary. Corresponding regulations can also be found in proceedings in family matters and in voluntary jurisdiction.

In practice, however, lawyers seem to be doing what they do best - dealing with social conflict in legal disputes, at least if it is true that the legal requirements of the Mediation Act have merely led to new text modules in lawyers' statements of claim. However, this is neither surprising nor tragic. That's quite a lot to start with.

3. mediation-specific standards of the law

Article 1 contains the mediation-specific, material requirements for mediation. In addition to the paragraphs on evaluation, authorisation to issue ordinances, scientific research projects and transitional provisions (Sections 6-9 Mediation Act), Paragraphs 1-5 contain the Core regulations on mediation and mediator training to find.

§ Section 1 defines the terms mediation and mediator. § Section 2 sets out the main duties and rights of the mediator. Sections 3 and 4 contain the duties and prohibitions of activity.

4. open regulatory regime, but it must be voluntary and confidential!

The mediation process is not regulated by the Mediation Act. This openness recognises the variety of ways in which parties to a conflict can mediate. The German legislator has shown exemplary restraint in this respect. According to Section 1 of the Mediation Act, the procedure must only Confidential, voluntary and Structured take place.

The Confidentiality is an important pillar of the mediation process. (You can find out more about confidentiality in this article.) As a rule, the content and events of mediation proceedings are not published. Confidentiality is a Central, but not a constitutive element of mediation and has always been handled in this way. The Mediation Act merely declares this principle. Confidentiality is an important reason why mediation is requested and used by conflict parties as an alternative procedure in the first place. In Business disputes trade secrets can also remain secret in this way. Disputes in which a high Risk of losing face can be dealt with appropriately in mediation and a suitable solution found.

The second important pillar of the mediation process is its Voluntariness. This means that every party to the conflict (as well as the mediator!) is free to end the process at any time. However, this did not require the Mediation Act. Voluntariness has always applied to mediation and is practically an identity criterion. For many mediators, voluntariness is the "gateway" par excellence to dealing with the conflict through mediation. The risk of losing something is generally low if the process can be terminated at any time.

Nevertheless, voluntariness means not necessarily free from pressure. Parties to a conflict often find themselves in a situation of enormous pressure, which is why they do not always perceive mediation as voluntary. In many cases, they feel compelled to carry out or at least start mediation. The "costs“ of non-participation in mediation can be shied away from, as they are sometimes higher or more significant than those of participation. For example, the consequences of non-participation may include sanctions by the employer, a negative press report by the client or the dissolution of the marriage.

In my practice as mediator external to the organisation It sometimes happens that employees confuse the voluntary nature of the procedure with freedom from pressure: Being allowed to end the mediation process at any time does not mean that this step is without consequences. Of course, cancelling mediation has an impact on the further course of the conflict (often escalation!). This is all the more true if additional interests, e.g. of the organisation as a whole, are involved in a mediation process. Team mediation must be observed.

5 Successful balancing act by the legislator?

With the Mediation Act, the legislator has introduced a Dilemma have to master: On the one hand, mediation should not be deprived of its breathing space with a thicket of regulations, as it requires a variety of forms and is still in great need of development in many areas. On the other hand, mediation urgently needed minimum standards that could increase public acceptance.

For this reason, the legislator has done well not to place mediation solely in the hands of lawyers. Mediation is not legal counselling with solution finding.

Ultimately, no professional groups have been excluded from carrying out mediations. And the requirements for mediation (e.g. through the creation of a new professional profile) have not been set so high that only a few are allowed to act. Rather, the legislator's aim was to create open standards that would safeguard the subjective rights of the parties to the conflict. The Mediation Act provides them with a certain degree of protection in that the (certified) mediators have undergone appropriate training and understand the basics of their craft.

6. statutory duties of the mediator to provide information – and what else he should do

Mediators are neutral, independent and impartial. According to the law, they must disclose all circumstances that could cast doubt on their neutrality. They may not act as mediators if they have already acted for a party in this dispute. This provision should only apply to lawyers.

(Anyone who has worked as a therapist for one of the parties is certainly likely to accompany any disputes in the context of mediation, provided they have mediation training. However, this question does not seem to have occurred to the legislator. As far as can be seen, the prohibition of activity in Section 3 (2) Mediation Act is only read to apply to lawyers. On the other hand, I doubt whether it is advisable to accept, for example, the therapist of the other party as a mediator. Of course, it is a different matter if individual therapy turns into couples therapy. But that is not mediation either).

It is also important to mention here that mediators are required by law to ensure that the parties have understood the principles and procedure of mediation and are participating voluntarily.

In addition, mediators are obliged, if the parties involved (want to) reach an agreement, to endeavour to ensure that the parties involved reach an agreement in full knowledge of the facts. However, the law does not seem to have given any thought to what this means in practice. As a result, the mediator's duties are shrouded in darkness. Mediators should therefore always inform the parties that they can, if not should, discuss and review their agreement with external advisors. This reduces the possibility of unjustified accusations and liability risks.

I therefore recommend that mediators document their efforts to clarify matters and generally have them confirmed in writing by the parties involved.

7 When can you call yourself a certified mediator?

The Mediation Act establishes the seal of quality of a "certified mediator", cf. section 6 Mediation Act. To obtain this legal To be allowed to use the title, mediators require training and further training, which is set out in more detail in the ZMediatAusbV (since 01.09.2017) by the authorisation of § 6 MediationsG.

This regulation stipulates that in order to hold the title, you must complete a training programme that comprises at least 120 hours of attendance time and deals with the specific content (see annex to the ZMediatAusbV).

Prior to this ordinance, the legal requirements for the use of this title were unknown and it was therefore not allowed to be used. This even applied to training courses that went far beyond the expected legal requirements and were completed with a certificate (e.g. from a federal association).

However, there is no obligation to bear this title. It is merely a Seal of qualitynot an official authorisation requirement. Furthermore, the use of the simple title "mediator" (including any additions of any kind) remains possible and permitted. In other words, anyone can call themselves a mediator and clients are free to check for themselves whether the mediator in question fulfils their own requirements.

Tip: In the preliminary discussion with the mediator of your choice, talk about the training you have completed, ask about current further training and above all - whether Professional supervision on the respective mediation cases. These are a sign of quality and guarantee that you will be spared the „personal favourites ’of your mediator.

8 Knowledge of the Mediation Act alone is not sufficient.

Mediation requires a certain amount of legal knowledge, for which the mediator is of course not must have studied law. This knowledge is less relevant to the subject matter of the dispute, which even legally trained mediators would not have a detailed overview of.

Important for mediators are, on the one hand, the legal framework of the brokerage activity itself. The Mediation Act only covers part of this. It is important for mediators to have an overview of any professional regulations. For example, there are professional regulations (e.g. for lawyers and psychotherapists) that must be observed.

On the other hand Regulations independent of mediation directly into mediation activities. Knowledge of such legal matters is essential for mediators. For example, it is important to acquire in-depth knowledge of the criminal law provision on the betrayal of secrets, § 203 StGB. Ultimately, this means that mediators must also observe the regulations that always apply to everyone. However, the mediator's work does not only take place in the "regulatory court" of the legal provision, but also concerns its regulatory core.

9. will the court of arbitration effectively expand the state's offer? 

The law now expressly gives judges in various branches of court the option of referring the parties to a further judge who is not authorised to make decisions, the so-called "conciliation judge". Alternatively, the judges can also suggest out-of-court mediation or another out-of-court dispute resolution procedure to the parties. The provision is highly controversial within the "mediation scene" because it does not harmonise the requirements for the further education and training of arbitrators with the level of certified mediators. Court practice will show to what extent the conciliation judge model will promote mediation. I will certainly return to this topic in future blog articles.

10. merit of the Mediation Act?

So what about a summarised assessment of the Mediation Act?

No effective protection of intensively trained mediators through title protection and high training standards, no effective consumer protection, mere "seal of approval solution", the controversial arbitrator model etc… what merit does the law have if its training standards could even lead to the elaborate training programmes being "geared downwards"?

However, the mere existence of the Mediation Act should bring this conflict resolution procedure more to the attention of "affected parties". In view of the positive experiences with this procedure, which the mediants have largely learnt to appreciate, this awareness effect should not be underestimated. As a result, more and more parties involved in the conflict could increasingly turn to this confidential procedure, which is usually less expensive, carried out voluntarily and characterised by a high degree of personal responsibility. The risk is manageable, the gain promising. The signs that can be seen in our mediation practice in Leipzig and throughout Germany give me a positive outlook for the future of mediation.