Some great news came up in Germany. The government concluded the draft of a mediation law. Now its up to the parliament to set in in force. It is not to be expected, that the law will be changed now tremendously. It might take until April or May approximately until that law comes in force.
The law is called Mediationsgesetz (mediation law). Alongside there are some crucial changings in some procedure laws.
The mediation law is built on 7 sections concerning the definition, the procedure, the mediator’s tasks, some principles and restrictions, the confidentiality, the education and an outlook on research.
The definition of mediation used in that draft is almost similar to the definition of the EU directive. In that mediation has been defined as broad as possible in order to protect ADR procedures like conciliation and others in general. The intention of EU further on is to cover various kinds of mediation as they are coming up in different countries of Europe. Looking on mediation development all over Europe, it appears that mediation is proceeded slightly different in UK, France, Germany and countries like Latvia, Estonia and others. Although the German draft of law is using that wide definition, German experts define mediation and conciliation as something very different.
There are some minor but principle rules about the procedure. It will be a condition that the clients have to choose who will be the mediator. The mediator has to assure that parties understood what mediation is and how it works. He is neutral and liable to every client the same way. Others than the parties are not allowed to participate except the parties agree. Mediants and the mediator are allowed to cancel the mediation at any time. The mediator will take care that the parties do have all the information needed to make up their conclusion.
There are some duties, the mediator has to respect. He for example has to inform the parties if there is a fact given, that might affect his neutrality. A mediator is not allowed to mediate, after he was in some kind of duties in the same affair before. If a college of the same law firm for example was engaged before, the parties have to be informed and to allow him to mediate their case. As there is no registration of mediators yet in Germany, the mediator has to prove his knowledge and education, if parties want to know.
Of course the mediator has to respect confidentiality. He also has the right to refuse to give evidence. But this right is restricted to civil procedure cases and as far as the so called ordre public or threat of children is not concerned. Of course the mediator has to inform parties about the confidentiality. Pity that the law doesn’t claim he has to instruct parties about their right to stay silent fromally as the mediator might become a part of investigations and an evidence in penal procedures.
Education is mentioned in the draft of law. It makes clear that education will be on the responsibility of chambers and associations. Unfortunately the chambers and associations in Germany are not unique. There are quarrels leading to exclusions, lobby impacts and power plays well known to the government. There is a question coming up, whether democracy on the one hand and the principles of mediation regarding consensus on the other hand will be respected if the establishment of chambers and associations is done selectively.
It is very interesting that this draft of law mentions the intention to finance research in the field of court based mediation. It’s a political outlook when this research will be used for establishing a mediation aid.
Beside that mediation law there are a few crucial paragraphs changing the court procedure law. One of them seems to be very clever. The plaintiff or the lawyer will be forced to mention in his complaint whether a mediation has been tried before the defendant was sued. The political idea behind is that lawyers should be forced to inform parties about mediation. They further on have to declare whether a mediation is possible in future, alongside the court procedure. There is no legal consequence if they do or not.
One of the main manifestations of that draft is the establishment of a so called court internal mediation. Court internal mediation is a court based mediation, where a judge, who is not the sitting judge, will proceed the mediation at court. The use of this way of mediation is disputed. The court becomes a competitor funded by tax money. The quality of mediation is assumed to be lower leveled and the role of a judge is expected not to be out of party’s mind. However justice will broaden its portfolio for sure. The benefit will be, that mediation is coming even more to the awareness of people. The minister of justice explained, that saving costs for justice is not the primary purpose when establishing court internal mediation. But it is the declared intention of justice to enhance their services in order to improve the autonomy of the litigant parties. Seems that justice doesn’t see ways to respect and improve the autonomy of litigant parties in conventional procedures, although there is an example proved, that integrated mediation is achieving this aim the best way in family cases at least.
Not every mediator is happy about that law. Mediation is a procedure respecting the autonomy of parties. Hence it will be the view of the individuals whether they see their autonomy restricted or the mediation institutionalized. In fact German law didn’t have to be changed to make the EU directive fitting. Particularly the right to refuse to give evidence could be established on a contract already. The law doesn’t exceed that right. Therefore the question stays why ruling, what is possible already?