The evaluative mediation style (2\/4) – The legality of evaluative mediation activities<\/h1>\nGerman mediation law also permits evaluative mediation activities<\/h2>\n<\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/div><\/div>Blog series on evaluative mediation<\/strong><\/em><\/pre>\n\n- Evaluative mediation services. Evaluative and proven activities of mediators in mediations<\/em><\/a><\/li>\n
- Legality of evaluative mediation activities.\u00a0<\/em><\/strong><\/li>\n
- Mediation appropriateness of evaluative mediation activities. Mediation principles as a framework for evaluative mediation services.<\/em><\/a><\/li>\n
- Opportunities and risks of evaluative mediation services. Do it!<\/em><\/li>\n<\/ol>\n<\/div>
Introduction<\/strong><\/h3>\nEvaluative mediation services, as I explained in the first part of this short series, can be condensed into four activities:<\/p>\n
\n- represent guard rails within which the closing agreements must operate<\/li>\n
- Correcting the conflict parties' misconceptions about guard rails<\/li>\n
- Present solutions (show ways forward)<\/li>\n
- Present ideas for solutions - make suggestions (identify goals)<\/li>\n<\/ol>\n
To what extent these activities in mediations are lawful – in view of the German Mediation Act – will be explained in the following blog post.<\/p>\n<\/div>
European Directive 2008\/52 EC<\/strong><\/h2>\nThe German Mediation Act came into force as\u00a0Act on the Promotion of Mediation and Other Forms of Extrajudicial Conflict Resolution<\/i>\u00a0in force on 26 July 2012.<\/p>\n
However, as early as 1999, the European Council called on its member states - including Germany - to standardise alternative dispute resolution procedures by 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.<\/p>\n
The European Directive 2008\/52 EC is the basis and historical starting point for the question of how the legal basis for mediation should be understood.\u00a0<\/strong><\/p>\n\nThe complete Directive 2008\/52 EC is available in German here<\/a> viewable.<\/strong><\/em><\/p>\n<\/blockquote>\nThe Directive defines the terms \"mediation\" and \"mediator\" in Article 3 of Directive 2008\/52 EC. \"Mediation is a structured procedure independent of its <\/em>Term in which two or more parties to a dispute are mediated with the help of a mediator.\u00a0<\/em>on a voluntary basis to try to reach an agreement on the settlement of their\u00a0<\/em>Achieving disputes\"<\/em>.<\/p>\nNote: The European Code of Conduct for Mediators<\/strong>which was adopted by the European Commission in 2004, has already explained this formulation in its preliminary remarks. The Directive adopts this wording word for word.<\/p>\n\nThe Code of Conduct is original here (E-Justice Europe)<\/a> and here (Centre for Mediation)<\/a> viewable and downloadable – and in German translation here<\/a>.<\/strong><\/em><\/p>\n<\/blockquote>\nThe decisive factor is – unsurprisingly – the Right to self-determination of the conflict parties<\/strong>who negotiate in mediation. They and their wishes are decisive for the limits of permitted mediation activities. A mediator, it can already be stated here, may not act against the will of the parties to the conflict or mediation.<\/p>\nThe counterpart here is the statutory judges.\u00a0<\/strong><\/p>\n\n- On the one hand its decision is binding on the parties to the dispute<\/strong> even if they do not agree with the content.<\/li>\n
- On the other hand, the difference is even more evident in the fact that one of the two court parties was subjected to this judicial decision-making power even against its will in these state court proceedings! This is because only one party needs to bring an action against the other party before the court – and then the other „has been dragged before the cadi“. This limitation of the defendant's right to self-determination, which is admittedly desirable in view of the principle of the rule of law, is, so to speak, the „absolute counterpart“ to the mediation procedure.<\/li>\n<\/ul>\n
In this context, if we consider the Figure of the referee<\/strong> If we consider an arbitration tribunal that both parties to the dispute have voluntarily and independently selected and that has the power to make binding decisions, it becomes clear what the provision in Art. 3a para. 2 of the Directive means: \"It includes mediation\u00a0<\/i>by a judge who does not have jurisdiction to hear the dispute\u00a0<\/i>is. This does not include efforts to resolve the dispute by the court or judge seised during the legal proceedings concerning the dispute in question\".<\/i><\/p>\nProcedural reference<\/strong><\/h3>\nAccording to the European understanding of the directive, mediation does not exist if the statutory judge decides on the matter in state court proceedings, even if, for the sake of clarity, he acts in a benevolent, empathetic, impartial, neutral and independent manner and endeavours to reach an amicable settlement<\/p>\n
On the other hand, the Directive also makes it clear that mediation can still take place even if the dispute is heard by an arbitral tribunal(!) and thus of course also by an arbitrator or mediator, regardless of their stylistic orientation.<\/p>\n
Role and task reference<\/strong><\/h3>\nThe Directive refers to the mediator in Art 3 b) as follows: „\"Mediator\" [means] a third person who is requested to conduct a mediation in an effective, impartial and competent manner, irrespective of his or her title or profession in the Member State concerned and of the manner in which he or she has been appointed or entrusted to conduct the mediation;<\/em><\/p>\nHere, too, there is no recognisable limitation to a particular style of mediation; mediators are not authorised to decide on the matter, even if they are supposed to act in an expert manner, but it is not ruled out that they can be assigned this authorisation by the parties to the conflict by mutual agreement and on their own responsibility.<\/p>\n
European law<\/strong> in any case does not preclude mediators from acting in an evaluative manner, <\/strong>be it through<\/p>\na) Presentation of guard rails within which the closing agreements must operate,<\/p>\n
b) Correcting the guard rails of misconceptions of the conflict parties,<\/p>\n
c) Presentation of possible solutions (showing ways forward) or<\/p>\n
d) the presentation of ideas for solutions and thus the submission of concrete proposals for solutions (identifying objectives)…,<\/p>\n
with which the parties to the conflict can then continue to work.<\/p>\n<\/div>
Blog series on evaluative mediation<\/strong><\/em><\/pre>\n\n
- Evaluative mediation services. Evaluative and proven activities of mediators in mediations<\/em><\/a><\/li>\n
- Legality of evaluative mediation activities.\u00a0<\/em><\/strong><\/li>\n
- Mediation appropriateness of evaluative mediation activities. Mediation principles as a framework for evaluative mediation services.<\/em><\/a><\/li>\n
- Opportunities and risks of evaluative mediation services. Do it!<\/em><\/li>\n<\/ol>\n<\/div>
Introduction<\/strong><\/h3>\n
Evaluative mediation services, as I explained in the first part of this short series, can be condensed into four activities:<\/p>\n
\n
- represent guard rails within which the closing agreements must operate<\/li>\n
- Correcting the conflict parties' misconceptions about guard rails<\/li>\n
- Present solutions (show ways forward)<\/li>\n
- Present ideas for solutions - make suggestions (identify goals)<\/li>\n<\/ol>\n
To what extent these activities in mediations are lawful – in view of the German Mediation Act – will be explained in the following blog post.<\/p>\n<\/div>
European Directive 2008\/52 EC<\/strong><\/h2>\n
The German Mediation Act came into force as\u00a0Act on the Promotion of Mediation and Other Forms of Extrajudicial Conflict Resolution<\/i>\u00a0in force on 26 July 2012.<\/p>\n
However, as early as 1999, the European Council called on its member states - including Germany - to standardise alternative dispute resolution procedures by 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.<\/p>\n
The European Directive 2008\/52 EC is the basis and historical starting point for the question of how the legal basis for mediation should be understood.\u00a0<\/strong><\/p>\n
\nThe complete Directive 2008\/52 EC is available in German here<\/a> viewable.<\/strong><\/em><\/p>\n<\/blockquote>\n
The Directive defines the terms \"mediation\" and \"mediator\" in Article 3 of Directive 2008\/52 EC. \"Mediation is a structured procedure independent of its <\/em>Term in which two or more parties to a dispute are mediated with the help of a mediator.\u00a0<\/em>on a voluntary basis to try to reach an agreement on the settlement of their\u00a0<\/em>Achieving disputes\"<\/em>.<\/p>\n
Note: The European Code of Conduct for Mediators<\/strong>which was adopted by the European Commission in 2004, has already explained this formulation in its preliminary remarks. The Directive adopts this wording word for word.<\/p>\n
\nThe Code of Conduct is original here (E-Justice Europe)<\/a> and here (Centre for Mediation)<\/a> viewable and downloadable – and in German translation here<\/a>.<\/strong><\/em><\/p>\n<\/blockquote>\n
The decisive factor is – unsurprisingly – the Right to self-determination of the conflict parties<\/strong>who negotiate in mediation. They and their wishes are decisive for the limits of permitted mediation activities. A mediator, it can already be stated here, may not act against the will of the parties to the conflict or mediation.<\/p>\n
The counterpart here is the statutory judges.\u00a0<\/strong><\/p>\n
\n
- On the one hand its decision is binding on the parties to the dispute<\/strong> even if they do not agree with the content.<\/li>\n
- On the other hand, the difference is even more evident in the fact that one of the two court parties was subjected to this judicial decision-making power even against its will in these state court proceedings! This is because only one party needs to bring an action against the other party before the court – and then the other „has been dragged before the cadi“. This limitation of the defendant's right to self-determination, which is admittedly desirable in view of the principle of the rule of law, is, so to speak, the „absolute counterpart“ to the mediation procedure.<\/li>\n<\/ul>\n
In this context, if we consider the Figure of the referee<\/strong> If we consider an arbitration tribunal that both parties to the dispute have voluntarily and independently selected and that has the power to make binding decisions, it becomes clear what the provision in Art. 3a para. 2 of the Directive means: \"It includes mediation\u00a0<\/i>by a judge who does not have jurisdiction to hear the dispute\u00a0<\/i>is. This does not include efforts to resolve the dispute by the court or judge seised during the legal proceedings concerning the dispute in question\".<\/i><\/p>\n
Procedural reference<\/strong><\/h3>\n
According to the European understanding of the directive, mediation does not exist if the statutory judge decides on the matter in state court proceedings, even if, for the sake of clarity, he acts in a benevolent, empathetic, impartial, neutral and independent manner and endeavours to reach an amicable settlement<\/p>\n
On the other hand, the Directive also makes it clear that mediation can still take place even if the dispute is heard by an arbitral tribunal(!) and thus of course also by an arbitrator or mediator, regardless of their stylistic orientation.<\/p>\n
Role and task reference<\/strong><\/h3>\n
The Directive refers to the mediator in Art 3 b) as follows: „\"Mediator\" [means] a third person who is requested to conduct a mediation in an effective, impartial and competent manner, irrespective of his or her title or profession in the Member State concerned and of the manner in which he or she has been appointed or entrusted to conduct the mediation;<\/em><\/p>\n
Here, too, there is no recognisable limitation to a particular style of mediation; mediators are not authorised to decide on the matter, even if they are supposed to act in an expert manner, but it is not ruled out that they can be assigned this authorisation by the parties to the conflict by mutual agreement and on their own responsibility.<\/p>\n
European law<\/strong> in any case does not preclude mediators from acting in an evaluative manner, <\/strong>be it through<\/p>\n
a) Presentation of guard rails within which the closing agreements must operate,<\/p>\n
b) Correcting the guard rails of misconceptions of the conflict parties,<\/p>\n
c) Presentation of possible solutions (showing ways forward) or<\/p>\n
d) the presentation of ideas for solutions and thus the submission of concrete proposals for solutions (identifying objectives)…,<\/p>\n
with which the parties to the conflict can then continue to work.<\/p>\n<\/div>
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