In last night’s session of German Parliament’s Mediation Committee (Vermittlungsausschuss), a compromise was finally reached on the Mediation Act (Gesetz zur Förderung der Mediation und anderer Verfahren der außergerichtlichen Konfliktbeilegung). In some respects, it looks like the final legislation is back to where it all started. But at least, Germany is now ready to implement the EU Mediation Directive.
We have been tracking the long and winded road of the German Mediation Act in the blog. Here’s the story so far in a nutshell: The draft legislation started out with express acknowledgement of the concept of court-integrated mediation and judges as mediators. Then the Lower Chamber of German Parliament (Bundestag) unanimously passed the Act and in doing so kicked out the concept of court-integrated mediation, and introduced a novel idea, the conciliation judge (Güterichter) – much to the chagrin of those federal states who were heavily advocating court-annexed mediation and did not want to see this being phased out. Led by Hamburg, these states referred the Act to the Mediation Committee, a joint committee of the Lower and the Upper Chamber (Bundesrat).
Here is the compromise they reached this week: First, the concept of conciliation judge (Güterichter) remains in the Act, and the federal states are free to continue with their established models of court-integrated mediation. A pattern of compromise most mediators will recognize.
Second, for the first time, financial incentives are being created to encourage mediation. However, there is some federalisation here, as the individual states are granted authority to create these cost incentives. The states can reduce or even waive court fees, if matters are settled through mediation or other means of ADR. This comes on top of the reduction of court fees already provided for if no judgment needs to be issued.
I think this is a good idea and will help making mediation more attractive – even though I like the idea of UK style cost sanctions better. Creating financial incentives for mediation was really missing from previous drafts. But conceptually, I find it wrong that rules will in the future potentially differ from state to state. Civil procedure, including the costs regime, is federal law, and should remain so – even if there is precedent for such ADR related federalisation, namely the rules on mandatory small claims mediation. Looks like federalisation is the price to pay for political compromise. And it remains to be seen how generous the individual states are in creating these incentives, as they come of of their budget.
On the point of the conciliation judge, I really have not made up my mind yet – some more thinking and research required, and we will come back to that.
Cartoon (c) and courtesy of Stu Rees; www.stus.com