Yesterday, the Mediation Act was passed, by an unanimous vote, in the “lower chamber” of the German parliament, by the Bundestag, in the form previously reported here. The consent of the “upper chamber”, the Bundesrat, representing the Federal States, is still outstanding and not yet certain. The matter is on the Bundesrat’s agenda in February 2012.
Update December 21, 2012:
Today’s Legal Tribune Online features the concept of the conciliation judge (Güterichter), which was introduced to replace court-integrated mediation. (Conciliation judge is a translation that I have come up with myself, as I have not come across any English language literature on the idea yet – please feel free to suggest alternatives).
I personally lack experience with conciliation judges, who already exist in some courts in Bavaria and elsewhere. My current understanding of the concept as it will apply once the Mediation Act is in force, is as follows:
If you commence litigation in the German courts, then, under the regime of the Mediation Act, you first must tell the court in the statement of claim (Klageschrift), whether you considered some form of ADR prior to commencing the litigation.
If the judge to whom the matter is allocated deems it fit for conciliation, the law suits may, with the consent of the parties, be transferred to a conciliation judge. The conciliation judge will then assist the parties in trying to settle the matter. If the conciliation judge is successful, the litigation comes to an end, if not, the matter goes back to the regular judge.
The process itself is fairly straight forward, it is the content of the conciliation judge phase that is somewhat of a black box to me – in which way this will be different from mediation is something I do not yet fully understand. I hope to be able to explore this with the assistance of a conciliation judge in a future post.
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