Mediation in Germany

Fritz Digmeyer, Lawyer, int. Expert and Mediator explains the state of mediation deveolpment in Germany before the mediation act comes in force.

First Part: Theory and Practice of Mediation in Germany

1          Introduction

Mediation is by now a well established and acknowledged legal institute in Germany as an alternative method to solve conflicts. “Alternative” method means without going to court, without using the state institution court. Although it is stated, that still the advantages of mediation are not commonly known[1].

It was in the United States of America where this technique was developed first[2]. Due to shortcomings and deficits of American civil procedure law (long procedures, high costs, unpredictable decisions by jury trial courts, possibility of penal fines in a civil case (punitive damages), absence of a rule, that the party losing the case has to bear all costs, etc.) there was a high pressure to develop an alternative to the decision of legal conflicts by courts[3].

This is the reason, why since already since now three decades alternatives to the decision of conflicts by court (Alternative Dispute Resolution- ADR[4]) were developed and used in the USA. Among these alternative method one –maybe the most wide-spread and known-  is called “mediation”[5].

In Germany such a strong need for development of alternative dispute resolution methods did not exist. Decision of civil cases according to German Civil Procedure Code of January 30, 1877 is quite satisfying and efficient.

So the beginning of mediation in Germany was mainly based on pure academic interest of law- sociologists and other scientists, studying the phenomenon of deciding conflicts without going to court, that gained more and more popularity especially in the USA.

Of course mediation elements were used during all ages and by all nations, especially in diplomacy and state law[6]. Nevertheless a profound scientific basis and systematic approach was developed only in the 20th century in the US at Harvard University[7]. Results and practical use of mediation in the US served as model for Germany and many other countries worldwide.

A leading role in the development of mediation played family (law) mediation. Here the advantages and effectiveness of mediation showed first. Problems in family affairs are mostly deep and highly emotional, that a judge, just applying formal legal regulations, very often cannot find satisfactory and good solutions[8].

Next to family (law) mediation as well other fields of law became subject to mediation in Germany, like environment law, neighbor law, labor law, corporate law, etc.

In contrast to for example Sweden[9] mediation in penal law cases plays only a limited role in Germany[10].

Especially lawyers discovered mediation as an alternative work field. The reconciliation of the parties of a dispute was considered as their genuine task. However as well judges refer to § 278 Sec II German Civil Procedure Code[11] and argue, that it is actually their professional task to reach amicable settlements of parties going to court. In general judges reacted extremely skeptically towards the new instrument mediation. This reaction is normal, since the use of mediation implies acknowledging failure and weaknesses of traditional dispute resolution by courts, means is criticism of the work of judges[12].

This shows that the institution of mediation is still highly emotionally discussed in Germany by different groups of contradicting opinions. Nevertheless the institution mediation has become already wide-spread in Germany. On European initiative by EU-Guidelines on Mediation a draft law on mediation is being prepared at the moment in Germany and is discussed very intensively[13].

Summary:

Mediation developed in Germany not primarily due to weaknesses of conventional court procedures but as useful alternative to conventional court proceedings.

Due to its specific approach of mediation is clearly the more efficient vehicle for certain types of (legal) conflicts. Everywhere where the conflict parties have long-running or even close relations (family, neighbors, permanent business partners, employees and employer, etc.), the method of mediation often achieves better, that means more satisfactory and sustainable results than conventional dispute decision by a court (by one or several professional or lay judges) or by an arbitration commission or court (arbiter).

Mediation in Germany developed without any directives of Government or government agencies. It is the product of an active civil society, of citizen taking their fate in their own hands, if the institutions or procedures, provided by the state, prove insufficient. Only after the process of developing the new institute was finished, the state accepted and acknowledged its usefulness and efficiency.

More and more countries started to elaborate and enact a legal framework (law) for mediation. However the national legislators seldom acted as initiator or pusher of this new instrument[14]. Usually the legislator lags behind autonomous developments in civil society and tries to put into certain legal frames only afterwards what has been already developed.

2 What is mediation? (or “The magic of mediation”)

In the following text I want (to try) to give the basic understanding of mediation.

The basic feature of mediation is “achieving a dispute resolution by the parties of the dispute themselves with help of a third person, not having authority to decide the conflict itself”.

Mediation has its origin in negotiation techniques, has similarity with arbitration and reconciliation, but is not fully identical with the mentioned techniques. Mediation is using parts of the mentioned techniques, however is more than the mentioned techniques and in certain regards different.

So it is more than just negotiation, but is using negotiation techniques[15], is not arbitration, because the essence of arbitration is, that an arbiter (“Schlichter”, “Schiedsrichter”) makes his own proposals for solving the conflict and tries to convince the both parties to accept his proposal. Mediation tries to reach reconciliation by (unvisibly) guiding the parties to discover the (genuine) roots of their conflict and to elaborate a lasting solution strictly by themselves.

Thus the mediator governs only the procedure, not the contents.

Of course the definition of mediation is not fixed. Mediators often use partly other techniques as negotiation, reconciliation, compromising etc.

In France for example, the term “médiateur“ is soften used for institutionalized bodies, having the task to help solve conflicts between citizen and public agencies. There are for example “médiateurs da la rue”, a “Médiateur de la Republique Francaise”, a “médiateur culturel” and the state owned railway system (SNCF) has its mediators to solve problems of unsatisfied customers with the railway. Here the term mediator is used in the sense of an “ombudsman”, solving problems between state and citizen[16].

So there are many ways of dispute resolution used in history and used today as conflict solving instruments and institutions. To a certain extent they include mediation techniques, which are applied today.

One example of an historical element used in modern mediation is ”compensation”, means balancing the interests of the parties. Since ancient times it is a common legal principal to compensate the suffered damages or injustice by money or other compensation means. That is the tradition of the Codex Hammurabi, the Codex Diocletian[17] and for example old Germanic law tradition[18], like legal traditions of other nations like the “Bij Courts” in ancient Kazakhstan[19].

In the Middle Ages it was a constitutive part of political negotiations between states and rulers, that a compensation had to be granted to reach a compromise and to end the conflict[20].

Especially in penal law historically legal institutes providing compensation were used to achieve a reconciliation between offender and victim and – most important- to provide a basis for future peaceful relations between the respective parties[21].

This element of compensation is used in modern mediation. By providing compensation (and this not only can be done in financial form) reconciliation is reached, which is the necessary for a future peaceful co-existence, may it be between states or between offender and victim, who might be for example neighbors.

In modern German (Penal) Law this principle is widely used and called “Täter-Opfer-Ausgleich” (TOA), compensation between offender and victim[22].

On the basis of historic experience the modern institute of mediation, being developed in the USA, however shows certain distinguishing features and techniques, which make mediation unique and make mediation so surprisingly successful.

Once more: The decisive element, as above already mentioned, is, that a mediator does not decide himself, does not give concrete solutions how to solve the conflict himself.

The task to find a solution is left up totally to the parties of the conflict. This is the crucial characteristic feature of mediation, at the same time it is the key to its success and the reason why mediation in certain cases often works a lot better than any court procedure or arbitration procedure (the “magic of mediation”).

A second decisive feature is that mediation does not limit itself to solve a dispute only on basis of legal positions, like for example a court or arbitration tribunal does.

In the course of history the ideas of facilitation of a compromise and reconciliation got lost by an increased legal position thinking, a total legalizing (Verrechtlichung) of all areas of life. So the conviction became dominant that all conflicts could be and should be solved by a judge, deciding on legal positions (only) and using a pure legal procedure (like civil procedure code).

So the second characteristic feature of mediation is, that it is not taking into account the legal positions, it goes far deeper. Whereas in a court emotions and feelings are excluded and considered not appropriate in a court proceeding, where coldly existing or not existing legal positions are discussed and where the judge has to decide who of the parties of the conflict has the better legal position, the key to a successful mediation is, that it allows, even stimulates, that the parties search for deep-rooted, often hidden, reasons of the conflict.

Thus mediation does not stay on the surface of just legal position. It goes a lot deeper and tries to discover and evaluate and utilize eventual emotional reasons of the conflict.

Since a human being is not only composed of a (cold) intellect, but of feelings (emotions) as well, the percentage of emotional reasons for conflicts is surprisingly high.

Since mediation allows to “dig out” deep-rooted emotions, allows to “dwell” in emotions and tries to analyze them, it has a lot broader basis for a potential solution of the conflict than any court procedure could provide[23].

This as well means that a mediator does not only have to know the law, he primarily has to know how ti handle people, how to make the talk, how to make them open up. So he needs to a certain degree the abilities and techniques a psychologist, a social worker, a wise old man (or woman) is using.

On the basis of the parties opening up, a broad basis for potential solution alternatives can be found.

The task of the mediator is to make the parties talk, to make them open up, dig out deep-rooted emotions and hidden reasons of the conflict by making the parties talk. The found emotions and reasons have to be sorted. Potential solution alternative have to be sorted and evaluated.

In this whole process, sometimes exhausting and painful, the mediator only guides the procedure, organizes the process of talking with each other of systematizing potential reasons and potential solutions.

The mediator is only a medium, he only helps the parties in this process, he himself shall strictly stick out of any interpretation, evaluation, solution-finding, he “only” has to guide, to provoke, to organize the parties to do all that by themselves. They themselves have to find an autonomous decision, that will be most appropriate for them, reaching a sustainable solution, that will last.

Final remarks:

Although mediation has its roots without doubt in historical attempts of dispute resolution by the parties using negotiation, using a mediator to facilitate solutions, reaching a reconciliation by fair distribution of burden, by equalizing caused damage, etc., the characteristics and background of modern mediation are twofold:

a)     Parties started to be unsatisfied with the conflict resolution procedures and institutes, provided by the state. Although historically a great achievement to bring the solution of conflicts in a regulated frame, controlled by the state in the form of court proceedings, later split up between prosecution and decision, thus ending private efforts to provide justice (“Selbstjustiz”, “Fehde”), the development of legalizing everything, means just thinking in legal positions, and the expectation, that someone else, the state in form of courts, will solve all problems, all conflicts, led to growing dissatisfaction with this method. Mediation does not make courts and state intervention superfluous. There will be always many cases, where the decision of a judge, state activity, like investigating, accusing, executing the court decisions, will be necessary. There are howver conflicts[24], where a judge just following legal positions, will not be able to find a sustainable satisfying solution for both or even one party. That is the potential field for ADR by mediation.

b)     Mediation is the product of a grown civil society and a democratic state[25]. The key issue is a self-confident citizen, who takes care of his interests and rights himself. The citizen themselves are responsible for shaping the conditions of their life (“Eigenverantwortung”), including solving potential conflicts. The times are over when a sovereign, a leader, the state had to take care of the fate and wellbeing of the citizen. Since French and other civil revolutions there is the guideline (Leitbild) of an independent, self-conscious citizen, taking his life in its own hands and not leaving everything up to a higher instance, to the state, to a court. Of course this is an ideal and in many cases a citizen might need support and help by the state, by a court – but in a growing number of cases he should feel himself responsible for shaping his living conditions, including finding ways of conflict resolution. Thus mediation is the result of growing self-consciousness of citizen and democracy.

3 Fields of application of mediation

Mediation is not the answer to all (legal) conflicts. It is however a useful tool for dispute resolution, when the conflicting parties are in long-run and close relation, maybe even live together.

So mediation was initially developed and applied in family (law) conflicts in Germany.

Family law is a typical area, where mediation can be used successfully and potentially and often shows better results than court proceedings. This can be easily understood. The family judge is a distant third person, who does not know all the nuances of the family life of the parties. As well he is judging only on basis of legal rules, legal positions, thus not always touching the true reason of the conflict. His decision might be not satisfactory for even both parties. Here the new institute mediation gets into the picture. Applying the above mentioned principles mediation will lead the parties to deeply analyze the reasons of the conflict and to work themselves on potential resolutions. If this works – and it works quite often –the found solution – elaborated by the parties themselves on basis of mutual insight and consent- will be more satisfactory and more sustainable than any court decision.

Another popular area of application of mediation are conflicts between neighbors (neighbor law), conflicts within work process, i.e. among employees and especially between employees and employer (labor law), permanent goods or services supply relations (civil law and economic law), etc.

An area where mediation is used a lot is consumer law. This as well is developed in Kazakhstan already.

What is called environment mediation concerns the relation between state (agencies) and citizen regarding planning and projecting big facilities like nuclear plants, etc. Here especially in the USA, but as well in European countries a movement developed, where the citizen are more and more participating in decision process. Court decisions often showed to be poor and not matching the interests of the sometimes many participating parties. Here very often by negotiation and mediation a more sustainable and acceptable solution can be found[26].

A very famous example of environment mediation is the mediation regarding the Vienna airport Schwechat. Plans to enlarge it and build a further starting/landing lane caused a lot or turmoil and protest and led to a blocked situation, where nothing moved ahead. By means of mediation finally a solution was found in 2005, to which all participants could agree. An excellent example how positively mediation can work[27].

As well in corporate (business) law mediation becomes more and more used. On the one hand mediation between corporations can economize millions of EUR (or USD)[28]. On the other hand mediation within a corporation became an important tool for solving conflicts within corporations (between employees, between management and staff, between different departments, etc.). Mediation became part of good corporate governance. It is very astonishing and positive that today as well in Kazakhstan mediation is widely used already by and within big corporations[29].

Summarizing it can be stated, that mediation in business (between corporations and business partners) became very popular in Germany[30], is widely spread and accepted even or especially by very big (international) corporations[31]. It is the most popular form of all Alternative Dispute Resolution (ADR) procedures[32] and is a clear alternative to court proceedings.

As well mediation within corporations (companies) nowadays is the most effective instrument for modern “conflict management”[33]. Conflicts in huge business organizations are normal and have to be handled/managed. Conflicts very often are accompanied or even based on emotional reasons. Mediation is the most appropriate modern instrument, to deal with conflicts in corporations, since mediation does not limit itself to legal solutions or just concrete work issues, but goes deeper and covers emotional problems as well[34]. So mediation is becoming more and more used within corporations as part of corporate (conflict) management.

4          Mediation: alternative to court proceedings or integrated in court proceedings

Initially mediation was developed as an alternative to court proceedings. This means mediation was considered as kind of a competitive tool with regard to conventional decision of conflicts in court proceedings. The general attitude of judges and other legal professions was very negative, skeptical and refused acceptance of this new instrument.

So mediation developed outside of the judiciary, even against the conventional judiciary. The conservative jurists did not want to accept this new approach, pretended that mediation is “nothing new”, that reconciliation was always done and tried by all conventional approaches to solve conflicts.

But actually mediation reflects a total different approach. The axiom is that people/citizen should decide their issues themselves, autonomously. That means primarily it is not the state, that has to care about the affairs of the citizen, it is the citizen themselves, who have to take care of their affairs, and this principally includes (peaceful) settling of conflicts.

So mediation is based on the concept of civil society. If you go deeper in theory of state and law, it is the realization of the right of self-determination of the citizen. This right is not given by any state, it arises independently from any state order from the inalienable rights of people[35].

So mediation developed in Germany separated from the state sphere on basis of civil society. The many NGO’s founded in this sphere initially had a clear concept against any state interference.

After a while this picture changed. After initial rejection and criticism by conservative lawyers, judges and prosecutors, mediation gained more and more popularity and acceptance. With this growing acceptance mediation started to be integrated into the state system of courts and the so-called “court-mediation” was born. Court mediation means, that the new instrument of mediation was in a certain way combined and used with conventional court proceedings.

By now all Federal States of Germany have introduced pilot projects dealing with mediation within courts[36].

That means judges themselves learn to perform mediation. The ordinary court proceedings before the “normal” judge are suspended, the case given to another judge with special training, who does the mediation (according all principles of mediation). If successful, the ordinary court proceedings are discontinued, if not they continue.

On the results and experiences of the pilot project in Berlin, especially at the Landgericht Berlin, will be reported below (under 6).

5 Mediation and Penal Law

Referring to the above mentioned historical way of dispute resolution by reconciliation in criminal cases[37] mediation gained a certain limited importance in Germany in criminal law proceedings as well.

Under the term “Täter-Opfer-Ausgleich”, German abbreviation TOA, (offender-victim-reconciliation) in German Penal Law since 1990 was introduced a procedure to reach a reconciliation between the victim and the offender usually with support of a neutral third person (mediator) in the way of negotiating, means mediation.

Initially this was introduced in juvenile penal law (Jugendstrafrecht). If minors are subject to criminal proceedings to a large extent punishment is avoided, if the juvenile reaches an agreement, reconciliation with the victim in a certain form, mainly by compensation of the damage in any kind of form[38]. If a sentence is given its content can be the court order to reach a TOA and render compensation, although this contradicts the basic principle of voluntariness of mediation[39].

This instrument, also strongly disputed, can have positive effects for the victim, for the offender, for society in general and especially for criminal justice[40].

For the victim it gives the possibility to cope with the psychological damages of the crime. The conventional criminal procedure often leads to a deep disappointment of the victim, since the process pivots around the offender only (to prove his criminal responsibility). Through the instrument of TOA (mediation) the hurt feelings of the victim are eventually healed, if for example the offender formally excuses himself or compensates the damage in any kind of form.

As well for the offender the encounter and discussion (negotiation) with the victim in form of a mediation (although painful) can provide, that he is not only blocking against all state procedures (by police, investigating officers, prosecutors, judges), but gains a deep insight in his wrongdoing, thus opening to eventual consequences and most important accepting them. This is very important for his re-integration into society and future life without crime, means avoiding recidivism.

Relevance for criminal justice.

Regarding criminal justice the TOA is a revolutionary new approach to deal with crime.

Instead of only repressive measures used before, the mediation approach refers to the autonomy of the parties (even offender and victim) and uses their readiness to resolute the (criminal) dispute by themselves. Also many conservative jurists are tempted not to accept this approach, in German practice it shows a lot of success. Also it is still difficult to get statistical data, data collected by Prof. Kerner (University of Tübingen) show, that in 87% of the cases the participants (offender and victim) are willing to enter into negotiations/talks/mediation and in around 82,1 % a successful agreement was reached[41].

Despite arguments that the mediation approach is too soft on the offender and the task of prevention of crime is endangered, the new instrument shows a lot of advantages not only for the participants of the criminal procedure, but as well for criminal justice proceedings and the society as whole.

Criminal justice organs (investigating organs, prosecutors, courts) usually are overloaded with work, TOA reduces this work load.

Society gains, because by successful mediations in criminal cases future legal and social peace and stability of society is achieved.

As well on European Level the use of mediation in penal matters is recognized. There is a Recommendation No. R (99) 19 of the Committee of Ministers to member States concerning mediation in penal matters of SEP 15, 1999[42], which will be discussed in more detail in part two[43] of my speech.

6. Organizations and Figures

6.1       Organisations

In Germany within the last 20 years very many organisations were founded, which deal with and perform mediation. Since mediation movement is an alternative to state court proceedings it is natural that these are especially non-government organizations.

But in some European countries as well the Government at a very early stage supported the mediation movement, especially in the Netherlands[44].

Some selected organizations in Germany and Europe are:

-       Centre for Effektive Dispute Resolution (CEDR), GB, www.cedr.com

-       EUCON, Europäisches Insitut für ConflictManagment, Germany, www.eucon-institute.de

-       Nederlands Mediation Institute, NL, www.nmi-mediation.nl

-       Förderverein Mediation im öffentlichen Bereich, Bonn

-       Arbeitsgemeinschaft Mediation des deutschen Anwaltvereins, Germany

-       Integrierte Mediation, Altenkirchen   www.in-mediation.eu

-       Scientific and Methodological Center for Mediation, Moscow           www.mediationandlaw.ru

-       Deutsche Gesellschaft für Mediation (DGM), Hagen, Germany          www.dgm-web.de

-       Bundesverband für Mediation (BM)

-       Bundesarbeitsgemeinschaft für Familienmediation (BAFM)

6.2       Figures on mediation in general

To get an exact number of cases solved by mediation in Germany is very difficult, last not least due to the confidentiality principle. As well there is no official reporting obligation for conflicts solved by mediation (so not coming to court).

There is an estimation[45] of around 2000 -2500 cases in one German Federal State, so multiplied with 16 makes around 40.000 cases a year. If you compare with the 1,8 million civil court proceedings per year in Germany, this amount of mediations seem to be marginal.

Estimated are 10.000 -15.000 family law (divorce) cases a year. Of the annual 30.000 TOA (offender-victim-reconciliation) cases around 50% are solved by mediation.

It has to be taken into account however, that there is a huge number of cases are performed on a more informal basis in schools, in institutions of municipalities, etc. As well sometimes the definition as mediation is not quite clear, there might be mixed conflict resolution forms, especially in social institutions and churches.

As well regarding the cases solved within corporations- a very big part- there are no official reports and statistics yet.

Since mediation is still a new phenomenon and has two faces/branches. One branch is mediation as part of social work, trying to mediate and solve conflicts especially of weak (vulnerable) groups more in social environment. The other branch is the just growing commercial branch of professional mediators, earning their living by performing mediations or dealing with mediation, like training, publishing, etc.

But despite low figures mediation seems to be such a fascinating phenomenon especially in the USA and Europe that the number of persons and institutions dealing with mediation is constantly growing.

6.3 Report on Court Mediation in Berlin

It is easier to give exact figures regarding the institutionalized court mediation (so far in pilot projects). According to a report “Evaluation of Court Mediation in Berlin”[46] 2008 – 2010 in all civil courts of Berlin 5474 cases were dealt with by mediation.

AG       673

LG       4613

KG[47]    188

From the mediation cases relevant at LG Berlin 2/3 of the cases were turned back to the ordinary court proceedings (because parties did not agree on a mediation). In 1/3 of the cases a mediation procedure was performed, with in 63,8 % positive results, this means reaching a mediation agreement.

The pilot project is supported by Ministry of Justice of Berlin. Positions for judges performing mediations were created at the court. The training of judges as mediators is financed by court budget. Especially the President of the Landgericht Berlin is very supportive towards this new tool.

Until 2012 the basis for a decision has to be found, whether public financing of organization and performance of mediation within the courts is justified, since mediations could of course be performed out of courts as well by mediators, who are not judges.

In general the reaction to mediation performed within courts by judges as mediators is very positive[48], the reason might be the high public prestige of judges and respect of courts in Germany. However there are critical voices as well, that criticize the quality of mediations within courts, especially the qualification of the judges, performing mediations. Judges tend to understand mediation in the sense of reaching an amical agreement according to § 278 Abs, 2 ZPO, that means just try to reach an agreement between the parties as they did before, without using the basic elements of mediation (autonomy of the parties, opening up to emotional roots of conflicts, leaving the task and responsibility to find a solution strictly to the parties, not commenting the contents, just leading the procedure of a mediation). The critics argue that the concept of mediation is an alternative to court proceedings, so should be kept out of court[49].

Without commenting these two positions, the pilot projects show the popularity of mediation and intensions to institutionalize mediation even within in courts financed by court budgets. That proves that the times of hostile and sceptical position towards mediation is over in Germany and mediation maybe will be incorporated in the judiciary system as an effective instrument for dispute resolution.

7          Draft law on mediation in Germany

So far mediation in Germany is not regulated by a special law.

Since 2008 a draft law on mediation is discussed in Germany. Extensive scientific expertise was performed as basis for the draft law. At the moment the draft law in the version of a draft of referents of the Ministry of Justice (“Referentenentwurf”) is submitted to the Federal States and different interest groups for discussion[50].

Goal of the draft law is to enhance the use of mediation and other forms of ADR. It regulates confidentiality obligations for mediators and improves enforcement of mediation agreements. Minimum standards for mediators are introduced, the use of mediation within courts regulated uniformly (so far individual practice in all Federal States). No special regulations for mediations in penal cases (TOA- offender-victim-reconciliation) are included, since the instrument of TOA is already regulated in § 46 a Penal Code.

With regard to the fact, that a final version of the draft law on mediation in Germany is still not reached, a detailed report will be given later.

Second part:

European Regulations and Initiatives

1               EU – Mediation Directive

On European level there is a Directive 2008/52/EC of the European Parliament and of the Council of May 21, 2008 on certain aspects of mediation in civil- and commercial cases[51]. Despite initial intentions this Guideline is applicable only to trans-border mediations, see Art 1 and 2[52]. It contains definitions of “mediation” and “mediator” in Art. 3. In Art 4 it regulates a self-commitment of the EU member states, that voluntary codes of conduct (and other quality control mechanisms) will be developed and followed by mediators and their organisations. Member states shall encourage initial and further training of mediators to provide a high professional level of mediators (Art. 4 Sec 2). The Directive encourages courts to recourse parties to mediation. In case of obligatory use of mediation by national law[53], to which the Directive is without prejudice, the right of access to justice should not be violated.

Furthermore the Directive demands ensuring enforcement of mediation agreements by courts (Art. 6), confidentiality of mediation (Art. 7). It ensures that mediation does not prevent initial judicial proceedings by expiry of limitation of prescription periods (Art. 8).

The Directive will be transformed into national law in 2011[54].

2               European Code of Conduct for Mediators

On European level agreement was reached, that there should be no obligatory rules for mediators in Europe, in order to support the solution of several member states, to provide as much as possible freedom for mediators and mediation[55].

So the European Code of Conduct for mediators of July 2, 2004[56] is not obligatory for mediators in EU member states. However mediators and their organizations can on a voluntary basis commit themselves to apply the regulations of this code of conduct and get registered with the European Commission.

The code regulates professional competence of mediators (Art. 1.1) and appointment by the parties (Art. 1.2). Fees have to be transparently agreed before start or the mediation (1.3). Promotion is allowed – “in a dignified way” (1.4).

As important basic principles independence (2.1), impartiality (2.2) and  confidentiality (4) are regulated. Art. 3 covers the mediation procedure, by postulating basic rules for professional behavior of mediators, like the duty to provide full understand of the parties of the mediation process, to ensure fairness. Partie are given the right to withdraw from mediation any time (3.3).

The code stresses its self-regulatory character and contains appeals for self-commitments of mediators in Europe.

3               Recommendations of Council of Europe (Committee of Ministers)

The Council of Europe has issued four recommendations[57], regulating principles for family mediation, mediation in penal matters, administrative matters (alternatives to litigation between administrative authorities and private parties) and in civil matters.

Family Law[58]:

The recommendation stresses the importance of reconciliation in family matters and states that especially mediation is a good method to reach such a reconciliation. It enumerates a number of basic principles:

-       voluntariness

-       providing a guaranteed quality level

-       impartiality and neutrality of the mediator

-       procedure should not be public

-       mediator should not be judge

-       possibility to adjourn (interrupt) any court procedure for performing a mediation

-       Penal Law[59]:

The recommendation states:

-       Same principles as above under family law

-       compensation between offender and victim is primarily in the interest of the victim

-       How the results of a mediation (TOA) are considered in the criminal proceedings is conceded to the law of the individual member state of EU

Mediation as instrument for reconciliation is as well mentioned in the Recommendations of the Council of Europe regarding Juvenile Delinquency of September 24. 2003[60].

Recommendations on mediation in administrative[61] and civil[62] matters:

These two recommendations refer to the same basic principles above and appeal to introducing mediation in the court procedures of EU member states

All those recommendations show the commitment and intention of the Council of Europe to strengthen use of mediation in Europe.

4               EU Project “European Network of Mediators for Cross Border Dispute Resolutions”(June 2011- November 2012), Professional Association of Mediators in Bulgaria PAMB, IM Integrierte Mediation e.V. and GEMME (European Association of Judges for Mediation)

5               OECD

Main concern of OECD as an international organization of states is the settlement of conflicts between states.

However since 1979 OECD established an alternative dispute resolution procedure – with mediation elements-  regarding multi-national enterprises. According to the OECD-Guidelines for Multinational Enterpries[63] national contact points are established, at which governments but as well private persons can file complaints against multinational enterprises violating the OECD guidelines.

Task of the national contact points is to try to reach an agreement between the applicant and the multi-national corporation. In case no agreement is reached the national contact point has to publish a statement on the case[64].

Fritz W. DigmayerLawyer, Mediator and Real Estate Expert ,

Deputy Team Leader of EU Project: “Support to Judicial and Legal Reform in the Republic of Kazakhstan”


[1] Heussen, in Handbuch Mediation (in German) , 2nd ed. Munich 2009, § 10 „Die Auswahl des richtigen Verfahrens“ (The choice of the proper procedure ), note 6;

[2] Although there is the wide-spread opinion, that “mediation” was used already since more than 2000 years, giving ancient Greek philosophers’ approaches or negotiations techniques used in the middle ages as examples, see Hehn, in: Haft/Schlieffen, Handbuch Mediation (in German), 2nd ed, Munich 2009, § 8 “Development and situation of mediation- a historical overview”, note 12 (Greek examples), note 13 – 19 (negotiation techniques in International Public Law (Völkerrecht) since the middle ages). However he notes, that “mediation” should not be mistaken with “negotiation” or “arbitration” (note 11). It is widely recognized that mediation in the modern understanding, means as scientifically based method, was initially developed and used in the US, see notes 33 ff. and 49. Especially the Harvard University (Boston, Massachusetts) played the leading role in developing the scientific basis for mediations already in the 70ies of 20th century, see: Fisher/Ury/Patton, “The Harvard Concept”, this universal concept for negotiation can be considered as the theoretical basis of modern mediation; see as well: Haft in Haft/Schlieffen, Handbuch Mediation, 2. Auflage München 2009, § 2, Rn. 12, referring to the speech of law Professor Frank Sander, held at Harvard University 1978, on “Varieties for Dispute Processing”, in a Conference organized by America Bar Association, which is considered as starting point for the development of Alternative Dispute Resolution (ADR) methods in the US and worldwide.  Haft, ibid, note 10 pp, uses as well the term “rebirth of mediation” and refers as well to ancient Greek examples (Solon) and middle ages examples, mentioning that even the term “Mediator” was already used for example by Pope Urban VIII. (1634 -1644), sending “mediatores pacis” to end the 30-year-war;

[3] Haft in Haft/Schlieffen, Handbuch Mediation, 2. Auflage München 2009, § 2, note 13;

[4] Arbitration, Negotiation, Mediation;

[5] The word mediation comes from the Latin word “mediatio” which means “conciliation”; the Latin word mediation may come from Greek “medos”, which means “middle”, so a mediator tries to orientate to find a solution in the middle of the positions, see Hehn, ibid, note 6; for more information on the development of mediation in the USA see Prof. Douglas H. Yarn, in: Handbuch Mediation, § 53 Mediation in the USA;

[6] See note 2;

[7] Compare the information given in note 2 and as well Fisher/Ury, “Getting to Yes- negotiation an agreement without giving in” 1977;

[8] So my teacher of mediation, Mr. Arthur Trossen, is by profession a family court judge (Familienrichter), now successful mediator, trainer of mediation and an important stakeholder in mediation movement in Germany.

[9] See Rüssel in: Handbuch Mediation, § 54 „Mediation im übrigen Europa“, Rn 65  on Sweden;

[10] In the framework of the institute of “Täter-Opfer-Ausgleich” (offender-victim-compensation), that will be discussed in detail below;

[11] The title of this article is: “Amicable settlement of a dispute, amicable court proceedings, amicable settlement” (Gütliche Einigung, Güteverhandlung, Vergleich);

[12] Maybe for this reason a position paper of the author on mediation, presented in a Round Table of the Supreme Court of the Republic of Kazakhstan in Astana in May 2010, was not published in “Zanger”, the official bulletin of the Supreme Court of the RK.

[13] More on this topic below.

[14] So for example in Austria the enactment of a law on mediation (“Zivilrechtsmediationsgesetz” of June 1, 2003) did not increase the numbers of mediations at all; this shows that development and consciousness in society is more important than the pure enactment of a legal act (Rüssel. Rn 51); an opposite example is the Netherlands, where the Government very early paid attention to ADR and started to support this initiative already 1996, (Rüssel Rn. 37). In NL mediation is highly accepted and introduced by courts and Ministry of Justice, without any law on mediation. Mediation was supported strongly by state legal policy (including for example giving financial support for mediation procedures  for low income persons (Mediationskostenhilfe), Rn 40; such a regulation even the draft law of mediation in Germany of 2010– see below- does not provide;

[15] For example the just mentioned negotiation techniques of the “Harvard Concept”;

[16] Hehn, ibid, note 54;

[17] See Hehn, ibid, notes 20 ff.;

[18] See Deutsche Rechtsgeschichte;

[19] See articles in Kazakh legal journals;

[20] See more details in the literature quoted by Hehn, note 22, Althoff, “Spielregeln der Politik im Mittelalter”(rules of policy in the Middle Ages), Kamp, “Friedensstifter und Vermittler im Mittelalter” (peace makers and mediators in the Middle Ages);

[21] See the institute of “transaction” in the Italian penal law of 14th-16th century and the institute of “Wergeld” used in Germanic law tradition, Saxonian Laws (800), Sachsenspiegel (1209), described at Hehn, ibid, notes 23-24, where a compensation had to be paid to reach reconciliation; see as well: Gerhard Köbler, Deutsche Rechtsgeschichte, page .91;

[22] More details under 3;

[23] See textbook on mediation by Arthur Trossen and Roland Hoffmann and Doris B. Rothfischer, called “Integrierte Mediation- die Grundlagen der Mediation in Theorie und Praxis” (Integrated Mediation- the basis for mediation in theory and praxis) 1st ed.. Altenkirchen;

[24] See below under 3;

[25] Haft, ibid, note 12;

[26] See Hehn, ibid, note 34; Haft, ibid, note 13, referring to the “Alternative Dispute Resolution Act” in the US, according to which agencies have the possibility to negotiate with private parties, whose rights are affected by plans substantially by public plans;

[27] See report on this successful (environment) mediation in the first edition of the Russian magazine “Mediation and Law”, pages 32- 39, issued by the highly reputated mediation institution www.mediationandlaw.ru, headed by Dr. Tsiana Shamlikashvili; an it was her who initiated publication if the first book on mediation in Russia, “Mediation- method to resolute disputes out of court” (in Russian), Moscow, 2006;

[28] According to a survey in 2007 corporations in Great Britain economized one billion Pound Sterling by using mediation, see Rüssel, ibid, § 54, note 25 with reference to CEDR (Center for Effective Dispute Resolution) News of 12.11.2007, www.cedr.com;

[29] According information given by Ms. Saniya Kasabulatova, Director of “Society for Protection of Consumer Rights Taldykorgan” SEP 12, 2011;

[30] See Risse/Wagner, ibid, §23 “Mediation im Wirtschaftsrecht”(Mediation in Business Law);

[31] So in buisness contracts amounting up to hundred of millions of EUR it became common to include a mediation clause, Risse/Wagner, ibid, note 2;

[32] ADR and mediation are not identical; mediation is just one (popular) form of ADR, but there are other methods of Alternative Dispute Resolution like arbitration, mini trial, negotiation, facilitation, etc. , compare Hehn, ibid, note 38 pp and Risse/Wagner, ibid, note 96 pp;

[33] See Ponschab/Dendorfer, ibid, § 24 Konfliktmanagement im Unternehmen (Conflict Management within a company);

[34] See above under 2;

[35] On this legal theory concept see as well: von Schlieffen, ibid, § 9, III Die Zivilgesellschaft (Civil Society), referring to: de Tocqueville, “Über die Demokratie in Amerika” (On the democracy in America); see as well US Declaration of Independence;

[36] „Gerichtsinterne“ oder „gerichtsverbundene“ Mediation, see Hehn, ibid, note 55; in detail Amberger, ibid, § 42 „Mediation und Justiz“ (mediation and judiciary“, as well von Bargen, § 38 „Der Richter als Mediator” (judge as mediator) and Gottwald, “§ 39, ”Gerichtsnahe Mediation- Erfahrungen und Lehren aus dem Modellprojekt in Niedersachsen“ (mediation close to court- experience and results of model project in Lower Saxonia);

[37] See under 2;

[38] See §§ 45 and 47 Jugendgerichsgesetz JGG (Juvenile Court Law);

[39] §10 and § 15 JGG, see Kerner, ibid, § 33, Mediation at the TOA (mediation in connection with offender-victim-reconciliation), note 29;

[40] See to all this in detail Kerner, ibid, notes 11 pp;

[41] Kerner, ibid, note 24;

[42] See under: https://wcd.coe.int/wed/ViewDoc.jsp?id=420059&Site=CM;

[43] See below under Part two, point 3;

[44] See Rüssel, ibid, § 54, 5. Niederlande (Netherlands), note 36 pp.

[45] All estimated figures according to von Schlieffen, ibid, note 7;

[46] Interim report, so far unpublished. Final report will be submitted until March 2012;

[47] AG= Amtsgericht (First Instance Court), LG= Landgericht (First and Second Instance Court), KG Kammergericht (Second Instance Court);

[48] See Greger, „Abschlussbericht zur Evaluierung des Modellversuchs Güterichter“ (Final report on evaluation of the pilot model of judges as mediators),2007; Greger, „Güterichter- ein Erfolgsmodell“ (Judges as mediators- a success story), ZRP 2006, S. 229 ff; von Schlieffen, ibid, note 27;

[49] Risse/Wagner, ibid, § 23, note 108-110;

[50] Text can be found for example under:  www.in-mediation.eu/referentenentwurf;

[51] Text can be found under:  www.eur-lex.europa.eu;

[52] See Art. 1, sec 2 of the Guideline and Sharma, Handbuch, § 51 “Europarechtliche Impulse”, note 27 -32;

[53] Although the obligatory element actually contradicts basic understanding of mediation. Such obligatory procedures for the parties to try to reach reconciliation first, before court proceedings are started, have been common in all judiciaries (for example Soviet law, APK, German § 278 Sec 2 Civil Procedure Code, etc.)

[54] Germany will transform the Directive with its new Law on Mediation, the draft of which is discussed above;

[55] Sharma, ibid, note 17;

[56] http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf;

[57] http://conventions.coe.int/Treaty/GER/v3DefaultGER.asp;

[58] Recommendation No. R (98) 1 of the Committee of Ministers to Member States on Family Mediation, January 21, 1998, www.coe.int/;

[59] Recommendation No. R (99) 19 of the Committee of Ministers to member States concerning mediation in penal matters, September 15, 1999, https.//wcd.coe.int/wed/ViewDoc.jsp?id=420059&Site=CM;

[61] Recommendation Rec (2001)9 of the Committee of Ministers to member States on alternatives to litigation between administrative authorities and private parties, September 5, 2001; https://wed.coe.int/wcd/ViewDoc.jsp?id=220409&Site=COE;

[62] Recommendation REc (2001) 10 of the Committee of Ministers to member States on mediation in civil mattes, September 18, 2002; https://wed.coe.int/wed/ViewDoc.jsp?id=306401&Site=CM;

[64] Sharma, ibid, note 41;

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