The jury is still out on the Mediation Act, a Federal statute, with the Mediation Committee (Vermittlungsausschuss) trying to reconcile the approaches of the Upper and the Lower House (Bundesrat und Bundestag) to court-integrated mediation.In the meantime, an initiative has been started in Baden-Württemberg to bin the state Mandatory Mediation Act (Gesetz zur obligatorischen außergerichtlichen Streitschlichtung –
Schlichtungsgesetz).The state Mandatory Mediation Act was passed in 2000. At the time, the federal rules on civil procedure gave federal states the option to introduce such legislation for small claims on a state level. Less then half of the states exercised that option, and those who did devised different rules, resulting in a patchwork of legal regimes across the country.
The Baden-Württemberg law, for example, made prior mediation mandatory before certain low value claims could be brought in court. It applied to monetary claims up to EUR 750, certain neighbour disputes and civil actions based on libel and slander.
I really hope that Baden-Württemberg will follow through on that proposal, and that other states will follow. I had always felt that having these state mediation acts was wrong for a variety of reasons:
First, the requirement of mandatory mediation for small claims put cost pressure on those matters which could least support any additional costs. Secondly, there were so many loop-holes in the laws that only litigants in person would fail to comply. These two elements add up to a serious access to justice issue. Thirdly, empirical data suggested that these laws did not acchive much in terms of reducing the work load in the courts. Finally, in a system of civil procedure that is federal, having a subset of local rules strikes me as a systemic failure.