Law in the Making: Update on the German Mediation Act

This is an update to my earlier post on the progress made on the Mediation Act, which I had characterized as “much ado about nothing”. The draft version of the Mediation Act on which the all-party consensus in the Legal Committee (Rechtsausschuss) of the Bundestag is based is not yet available online; you can find it here.

Jürgen Klowait, one of the Co-Founders of the Round Table Mediation & Conflict Management of the German Economy did not agree with my assessment and has kindly shared his comments on the changes:

“Compared to the draft dated April 2011 there will be some significant changes. To mention just two:

  • The approach of court internal mediation (mediation conducted by judges) has been deleted in the current draft (which has not been published officially yet);
  • Mediators can now become “certified mediators” if they meet certain criteria regarding their mediation education (like e.g. at least 120 h of mediation training).”

On December 16, 2011 the draft will be dealt with by the “lower house” of the German parliament (Deutscher Bundestag). The “upper house”, comprising the representatives of the Federal states (Bundesrat), will have it on the agenda on February 10, 2012. The Mediation Act could come into force, ideally, in February or March 2012.

 “Much ado about nothing”, that was my initial assessment of the changes that have been made between the first draft in April and now. It was rather harsh – but perhaps my expectations were too high. But still, from my point of view, neither of the two changes mentioned above make the Act really live up to its full title: It is supposed to be not only about mediation, but, more generally, about the “promotion of … other procedures of extrajudicial conflict settlement” (Gesetz zur Förderung  …. anderer Verfahren der außergerichtlichen Konfliktbeilegung).  I can not find any other ADR procedures reflected in the Act, nor do I think that there is sufficient promotion of ADR, in whatever form.

I could come up with a long list of things I would have liked to see in the Act, such as

  • legal aid (Prozesskostenhilfe) for ADR, at a time where even the the legal expenses insurance industry (Rechtsschutzversicherungen) is increasingly covering the cost of mediation;
  • cost incentives to engage in ADR (such as lower court fees, if one has tried mediation before); and/or
  • cost sanctions for parties who fail to engage in ADR before commencing legal proceedings.

What I like about the new draft:

  • the option for the Federal states to introduce their own brand of court-integrated mediation is gone. As much as I am in favour of competition, including competition amongst legal systems, I prefer a unified Code of Civil Procedure for the entire country;
  • the distinction between court-annexed, court-integrated and stand-alone mediation is gone. It either is mediation, or it is something else.

What I am not sure whether I like or not

  • the concept of the Conciliation Judge (Güterichter). The concept is as follows: A judge will assist the parties in settlement discussions. The Conciliation judge will not be the one deciding the matter if a settlement is not reached. The Conciliation Jugde clearly is a judge, and not a mediator. But at the same time, the Conciliation Judge may use mediation techniques. It is a concept that has been tested in some states, such as Bavaria, and appears to have been successful.

How has the new draft been received? Predictably: The lawyers liked it, the judges did not, the public at large appears to have taken little notice:

  • The German Federal Bar (Bundesrechtsanwaltskammer) appears to be the first one out with a press release welcoming the result. 
  • The Association of German Judges (Deutscher Richterbund), who were to quick to come out with their support last time when matters appeared to move in their direction on court-integrated mediation, have remained silent so far. Their rival, the New Judges’ Association (Neue Richtervereinigung) saw things coming, in its press release on 29 November 2011, but could not save court-integrated medation, at least for now.

 

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