ADR in the Upper House: Mediating the Mediation Act, Rejecting Brussels

The Upper House (Bundesrat) of the German Parliament has been active in ADR related matters twice this month:

First, its Legal Committee (Rechtausschuss) sent the Mediation Act, which has been unanimously approved by the Lower House (Bundestag)  to the Mediation Committee (Vermittlungsausschuss). Pardon the pun, but I am using the quasi-official translation for the joint committee of the two Houses, provided for in Art. 77 of the German Constitution.Federal States such as Hamburg, Schleswig-Holstein, Brandeburg and Hessen are not prepared to give up their beloved court-integrated mediation approach and are opposing the new concept of conciliation judges (Güterichter). Hamburg‘s Senator for Justice has expressly states the goal that court-integrated mediation is to be re-instated in the Mediation Act. The matter is on the Mediation Committe’s agenda in early February. Finding a solution does not appear to be easy.

Secondly, its European Committee objected to the EU Initiative on ADR for Consumer Disputes in the Single Market. In its opinion, the European Union is exceeding its powers for the matter and is in violation of the principle of subsidiarity as laid down in Art. 5 of the European Union Treaty. To the extent that the proposals from Brussels also cover purely domestic disputes, the European Union lacks competence for the proposed legislation. In addition, the European Committee does not recognize any impact of domestic disputes on cross-border consumer behaviour in the Single Market.



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