Mediation, Court-annexed Mediation and Judges as Mediators

The European Commission is launching its next ADR initiative at a time when Germany’s implementation of the first one, the EU Directive on certain aspects of mediation in civil and commercial matters is overdue. “Member States shall bring into force the laws, regulations, and administrative provisions necessary to comply with this
Directive before 21 May 2011”, the Directive says.

Having watched the legislative process as an interested bystander, things appeared to be more or less on track up and until the expert hearing on 25 May 2011. By then, a Draft Act for the Promotion of Mediation and other Procedures of Extrajudicial Conflict Settlement (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung), Mediation Act for short, had been published.

The Draft Mediation Act does not distinguish between mediation of cross-borders disputes, which fall within the scope of the Mediation Directive, and purely domestic disputes, but created a unified set of rules for both international and domestic disputes. In most other respects, the Draft Mediation Act takes a minimalistic approach. It covers the areas that are mandatory under the Mediation Directive, but does not go beyond that scope. In the Act’s first paragraph, three types of mediation are defined, distinguishing between

1. mediation which is independent of any pending judicial proceedings (außergerichtliche Mediation);
2. mediation that occurs during pending judicial proceedings, but outside the court (court-annexed mediation; gerichtsnahe Mediation) and
3. mediation carried out by judges during a pending court matter, but outside their capacity as judges (court-integrated mediation; gerichtsinterne Mediation).

It is the court-integrated mediation that appears to be the bone of contention. The headline of official press release following the experts’ hearing in May read “Experts fight over Draft Law to Promote Mediation”. From the reports about the hearing, it appears that the bone of contention is the role that judges are to play in the mediation landscape.

After a couple of months of relative silence, with newspaper articles here (Burkhard Hess, “Die Regierung erschwert die Mediation durch Richter”, Frankfurter Allgemeine Zeitung, 11 May 2011, available only to subscribers) or there ( „Güterichter sind kein Ersatz“, Frankfurter Allgemeine Zeitung, 7 September 2011, available only to subscribers) to support judges as mediators, there has recently been some activity. The Conference of Ministers of Justice (Justizministerkonferenz) is the forum were the ministers representing the federal states meet and discuss these issues. Their annual conference was held in November 2011, and they came up with a fairly short but broadly worded resolution supporting “mediation performed by judges” (richterliche Mediation), but avoiding – at least that is my interpretation – to use “court-integrated mediation. The Association of German Judges (Deutscher Richterbund) the very next day issued a press release welcoming, in many more words, this resolution. My reading of all of this is that the stumbling block to getting the Mediation Act underway, quite ironically for an ADR tool, is the role of courts and judges in the process.

Reinhard Greger, a leading autority on procedural law and ADR in his capacity both as a law professor and former federal judge has put it this way: “Mediation is thriving – but in a place where it doesn’t belong” (“Mediation boomt – aber dort, wo sie eigentlich nicht hingehört.” AnwBl. 2008, 570).

I tend to agree with that statement. My own experience with court-integrated mediation has not been great and has reinforced my prejudice that judges remain judges, even if they try to mediate. But I must acknowledge that my experience is limited, and therefore, my findings are statistically irrelevant. In addition, the entire debate about court-integrated mediation has diverted public attention and legal resources away from more meaningful, bolder approaches to promote mediation as a means to resolve disputes out of court. And it may perpetuate a perverse incentive for parties to commence court proceedings in order to access court-integrated mediation, which is provided “for free”. But as we all know, there is no such thing as a free lunch, nor a free mediation.