Mediation in Member States - Germany
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Rather than going to court, why not try to settle your dispute through mediation? This is an alternative dispute resolution (ADR) measure whereby a mediator assists those involved in a dispute to reach an agreement. In Germany, public authorities and legal professionals are all aware of the benefits of mediation.
Whom to contact?
There are a number of organisations offering mediation services. Please see below for a non-exhaustive list of some of the larger associations:
- Federal Association for Family Mediation (BAFM: Spichernstr. 11, 10777 Berlin)
- Bundesverband Mediation e.V. (Federal Association of Mediation) Wittestr. (30K, 13509 Berlin)
- Bundesverband mediation in economics and working life e.V. (BMWA: Prinzregentenstrasse 1, 86150 Augsburg)
- Centrale für Mediation GmbH & Co.KG (CfM: Gustav-Heinemann-Ufer 58, 50968 Cologne)
- German Lawyers’ Association (Arbeitsgemeinschaft Mediation in the German Lawyers’ Association, Littlestraße 11, 10179 Berlin)
These associations support parties who wish to use a mediator to find a suitable mediator.
In which areas is recourse to mediation admissible and/or particularly common?
Generally speaking, when there is no formal legal requirement that a particular kind of dispute or matter must be dealt with in court, mediation is always permitted. The most common areas for mediation are family law, inheritance law and commercial law.
Are there specific rules to follow?
On 26 July 2012, the Mediation Act (Mediationsgesetz), Article 1 of the Act to promote mediation and other procedures for out-of-court dispute settlement of 21 July 2012, published: bundesgesetzblatt I ¸ p. 1577, entered into force in Germany. This was the first piece of legislation to formally regulate mediation services in Germany. The Act also transposes the European Mediation Directive into German law (Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, published: OJ L 136, 24.5.2008, p. 3). The scope of the German Mediation Act exceeds the requirements of the European Directive; The Directive only applies to cross-border civil and commercial disputes. However, the Mediation Act applies to all mediation conducted in Germany, irrespective of the nature of the dispute and the place of residence of the parties.
The German Mediation Act lays down only essential principles. Mediators and parties should have wide scope for manoeuvre in the conduct of mediation. The Act initially defines the terms ‘mediation’ and ‘mediator’, to differentiate mediation from other forms of dispute settlement. According to the Act, mediation is a structured process whereby the implicated parties voluntarily and autonomously seek a form of mutual dispute settlement with the help of one or more mediators. Mediators are independent and impartial persons, without decision-making power, who guide the parties concerned through the mediation procedure. The Act deliberately avoids establishing a precise code of conduct for the mediation procedure. However, it does set out a number of disclosure obligations and restrictions on activity, to protect the independence and impartiality of the mediator profession. Moreover, legislation formally obliges mediators to maintain strict client confidentiality.
The Act promotes mutual dispute settlement by including a number of different incentives in the official procedural codes (e.g. the Code of Civil Procedure, Zivilprozessordnung). Henceforth, for example, when parties bring an action in a civil court, they will have to say whether they have already sought to resolve the issue via out-of-court measures, such as mediation, and whether there are specific reasons for not considering this course of action. The court may furthermore suggest that the parties try to settle the conflict via mediation, or another form of out-of-court settlement; if the parties refuse to apply this option, the Court may choose to suspend the proceedings. Legal aid for mediation is not envisaged for the time being. In accordance with Section 278 (5) of the Code of Civil Procedure, the court may refer the parties for the purpose of the negotiations and for further quality tests to a judge appointed for that purpose and not empowered to take the decision. The Güter-writer can use all methods of conflict resolution, including mediation.
By its report of 20 July 2017, the Federal Government complied with its legal obligation to report to the Bundestag five years after the entry into force of the law on the effects of the law. The report is available here. It shows that mediation is not yet used as an alternative tool for conflict resolution in Germany to an extent that it would be desirable. The report does not provide for immediate legislative measures. However, on the basis of the findings of the report, the Federal Government will examine how the mediation law’s objective of promoting mediation can be better achieved.
Information and training
General information can be obtained from the website of the Federal Ministry of Justice and Consumer Protection (http://www.bmjv.de/).
There is no legislation defining the professional profile of a mediator. Similarly, access to the profession is not restricted. Mediators are themselves responsible for ensuring that they have the necessary knowledge and experience (through suitable training and further development courses) to reliably guide parties through the mediation process. German law establishes the general knowledge, competencies and procedures that should be covered by suitable prior training. Any persons meeting these criteria may work as a mediator. There is no set minimum age, and no requirement for example that a mediator must have followed a university-level course of study.
The Federal Ministry of Justice and Consumer Protection has made use of its authorisation to issue a regulation by means of the “Regulation on the training of certified mediators” and laid down more detailed rules on the training of the certified mediator and on the training of the certified mediator, as well as requirements for training establishments.
No formal initiative is envisaged for the time being.
Mediator training is currently offered by associations, organisations, universities, companies and individuals.
How much does mediation cost?
There is a charge for mediation. The payment shall be agreed between the private mediator and the parties concerned.
There is no legislation governing fees for mediation, nor are there statistics on the costs. It is realistic to assume that hourly fees may range approximately from EUR 80 to EUR 250.
Can an agreement resulting from mediation be enforced?
In principle, a mediation agreement can be enforced with the help of a lawyer (as a comparison by law) or notary (as a public notarial deed § § 796a to 796c, Article 794 (1) (5) of the Code of Civil Procedure).
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Last update: 30/08/2019