Mediation Act

  • 1 Terminology

(1) Mediation is a confidential and structured process by which parties voluntarily and on their own responsibility strive to find a mutually acceptable resolution of their conflict with the assistance of one or more mediators.

(2) a mediator is in independent and neutral person with no decisional authority who guides the parties through the mediation process.

 

  • 2 Procedure; duties of the mediator

(1) The parties select the mediator.

(2) The mediator assures himself that the parties have understood the fundamentals and the course of the mediation process and are participating voluntarily in the mediation.

(3) The mediator is equally obligated to all parties. He promotes communication of the parties and guarantees that the parties are appropriately and fairly integrated into the mediation. He may have ex parte discussions if all parties consent.

(4) Third parties may be brought into the mediation process only with the consent of all parties.

(5) The parties may terminate the mediation process at any time. The mediator may terminate the mediation in particular if he is of the view that independent communication or agreement of the parties cannot be expected.

(6) Where there is agreement, the mediator works to ensure that the parties reach their agreement with awareness of the facts and understanding of their content. He is required to inform the parties who participate in the mediation without factual expertise of the possibility of engaging external advisors as required to review the agreement. With the consent of the parties, the agreement reached can be documented in a closing agreement.

 

  • 3 Duties to disclose; restrictions on engagement

(1) The mediator must disclose to all parties all circumstances that might bear on his independence and neutrality. Where such circumstances exist, he may act as mediator only if the parties expressly consent.

(2) A person who has represented one of the parties in the same matter prior to the mediation may not act as mediator. During the mediation process the mediator may also not represent one of the parties in the same matter.

(3) A person may not act as mediator if prior to the mediation another professionally affiliated person or person who shares office space with such person has represented one of the parties. Such other person may also not represent a party in the same matter during the mediation process.

(4) The restrictions of Subsection 3 above do not apply if in an individual case the affected parties after being fully informed declare themselves in agreement and there are no countervailing legal propriety concerns.

(5) At the request of the parties, a mediator shall inform them concerning his factual expertise, his education and his experience in the area of mediation involved.

 

  • 4 Duty of confidentiality

The mediator and persons involved in the mediation process are bound to confidentiality unless otherwise provided by law. This duty relates to everything that is learned in the course of their activity. Notwithstanding any other statutory rules concerning the duty of confidentiality it shall not apply if

  1. the content of the agreement reached in the mediation procedure must be disclosed to implement or execute such agreement,
  2. the disclosure is required on supervening public policy grounds (ordre public) in particular in order to prevent endangerment of the welfare of a child or a grave impairment of the physical or psychological integrity of a person, or
  3. it concerns matters that are obvious or whose significance requires no confidentiality. The mediator shall inform the parties concerning the scope of his confidentiality duty.

 

  • 5 Education and continuing education of the mediator; certified mediator

(1) The mediator shall ensure on his own responsibility through suitable education and regular continuing education that he has both the theoretical knowledge as well as practical experience needed to lead parties through the mediation process in an objective manner. Suitable education should impart the following:

  1. knowledge of the fundamentals of mediation as well its process and framework conditions,
    negotiation and communications techniques,
    conflict competence,
    knowledge about mediation law and the role of law in the mediation process as well as
    practical exercises, role-playing and supervision.

(2) A person who has completed the educational requirements for mediator corresponding to the requirements of the rules promulgated pursuant to § 6 may hold himself out as a certified mediator.

(3) The certified mediator is required to complete continuing education as required by regulations under § 6.

 

  • 6 Rulemaking authority

The German Justice Ministry is authorized to promulgate more detailed regulations concerning the education of certified mediators and the continuing education of certified mediators as well as requirements for educational and continuing education institutions without the consent of the Bundesrat. Rulemaking authority pursuant to sentence 1 can include in particular the following:

  1. Detailed regulations concerning the content of education by which an education leading to certification as mediator shall impart the educational content set forth in § 5 paragraph 1 sentence 2 and concerning required practical experience;
    Detailed rules concerning the content of continuing education;
    Minimum number of hours for education and continuing education;
    The time intervals for required continuing education;
    Requirements on instructors at basic education and continuing education institutions
    Rules requiring continuing educational institutions to certify participation in basic education and continuing education and how they will do so, and;
    Rules concerning the conclusion of education;
    Transition rules for persons who have acted as mediators prior to the entry into effect of this Act.

 

  • 7 Scientific research projects; financial subsidies for mediation

(1) German Federal and state governments may agree on scientific research projects to determine the results of financial subsidies to mediation for the states.

(2) Subsidies can be authorized as part of research projects upon application of a litigant if, given his or her personal and economic relationships, such person is unable to bear the costs of mediation or only a portion thereof or only in installments and the legal remedy sought or legal defense appears not to be arbitrary or capricious. The court with jurisdiction over the proceedings shall decide the application if a research project is being carried out at that court. The decision is final and un-contestable. Details will be governed by the agreements reached between the federal and state governments pursuant to paragraph 1 above.

(3) Following the conclusion of scientific research projects the Federal government (Bundesregierung) shall report to the German Parliament (Bundestag) concerning the collective experiences and knowledge gained.

 

  • 8 Evaluation

(1) The German government shall report to the German legislature by 26 July 2017 – including consideration of local authority granted to the states on costs – concerning the effects of this Act on the development of mediation in Germany and concerning the state of basic and continuing mediator education. In particular, the report will examine and assess whether additional legislative measures in the area of basic and continuing mediator education are necessary for reasons of quality assurance and consumer protection.

(2) If it appears from the report that legislative measures are needed, the German government shall propose same.

 

  • 9 Transition rules

(1) Mediation during a court proceeding in civil matters by an arbiter without decisional authority that was offered to a court prior to 26 July 2012 may continue to proceed under the previous designation (court mediator) through 1 August 2013.

(2) Subsection 1 above applies correspondingly to mediation in the administrative courts, social courts, tax courts and labor courts.