The German Mediation Act
The original wording of the German Mediation Act, as passed on 26 July 2012: <link http: www.gesetze-im-internet.de mediationsg index.html _blank external-link-new-window external link in new>www.gesetze-im-internet.de/mediationsg/index.html
Commentary on the Individual Articles of this Act from Dr. Michael Gross
What advantages do the Mediation Act and other changes provide companies?
1. The Mediation Act creates an understandable framework for mediation outside of arbitration and government courts
- Terminology: The terms "mediation"(confidential and structured procedure; with the help of one or more mediators, parties seek freely and of their own authority a mutual settlement of a conflict) and "Mediator" (independent and neutral person without the authority to make a decision who leads the parties through the mediation) are now officially defined (<link http: www.gesetze-im-internet.de mediationsg __1.html _blank external-link-new-window external link in new>§ 1 Mediation Act)
- The procedure and responsibilities of the mediator are defined (the parties have the unrestricted right to select the mediator(s) and also have unrestricted control of the procedure with regards to initiation, the process itself, the topics addressed and conclusion; no third-party involvement as in arbitration or government courts) (<link http: www.gesetze-im-internet.de mediationsg __2.html _blank external-link-new-window external link in new>§ 2 Mediation ActRe)
- Quality control of the mediator regulated by law: the mediator must share all circumstances which may affect his neutrality; the mediator may not represent any of the parties before, during or after the mediation without their consent;
when so requested by the parties, the mediator must inform them of his knowledge/abilities in the field, his education and his mediation experience (<link http: www.gesetze-im-internet.de mediationsg __3.html _blank external-link-new-window external link in new>§3, <link http: www.gesetze-im-internet.de mediationsg __5.html _blank external-link-new-window external link in new>§5, <link http: www.gesetze-im-internet.de mediationsg __6.html _blank external-link-new-window external link in new>§6 Mediation Act) - Non-disclosure obligation of the parties and the mediator: the mediator must inform the parties of the extent of both his and the parties' non-disclosure obligation (<link http: www.gesetze-im-internet.de mediationsg __4.html _blank external-link-new-window external link in new>§ 4 Mediation Act)
2. Mediation is also possible in court
- The government judge can send the case, without (!) any additional cost, to a so-called "arbitrator" who is not(!) authorized to make a decision (<link http: www.gesetze-im-internet.de zpo __278.html _blank external-link-new-window external link in new>§ 278 Par. 5 sent. 1 of the German Civil Procedure Code)
- The arbitrator can use "all methods of conflict settlement including mediation" to come to a mutual settlement of the conflict (<link http: www.gesetze-im-internet.de zpo __278.html _blank external-link-new-window external link in new>§ 278 Par. 5 sent. 2 of the German Civil Procedure Code)
3. The "Gerichtsnahe Mediation am Landgericht München I" (Mediation by the Courthouse at District Court I in Munich) Project for pending economic cases
- The Munich Bar Association and the Munich Chamber of Commerce and Industry have created shared offices which administer mediation, inform interested parties about the mediation process and can provide a selected list of competent economic mediators >>> www.rak-muenchen.de > "Mitgliederservice bzw. Aktuelles" (the website also has a flyer about the pilot project and there is a questionnaire available which can be used to add yourself to the mediator list)