Gerhard Wagner

Basic Structures of a German Act on Mediation Grundstrukturen eines deutschen Mediationsgesetzes

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1. The EU Directive on Certain Aspects of Mediation in Civil and Commercial Matters is limited to cross-border disputes and deals with problems of minor importance only. The Directive covers not a single issue that is indigenous to international disputes. Therefore, the German government is well-advised in its decision to go beyond the Directive and to include domestic disputes into the scope of its implementing legislation. If this is done, the Directive may instigate a major step towards placing mediation on an equal footing with the traditional modes of dispute resolution.2. Art. 8 of the Directive, stipulating that limitation and prescription periods must be suspended whilst the parties mediate, does not require the German legislature to act. § 203 BGB already works to this effect. However, the lawmakers should facilitate institutional mediation by drafting rules equivalent to §§ 204 (1) (No. 11) BGB, 1044 ZPO which deal with the same issue in the area of arbitration.3. Art. 6 of the Directive calls for a mechanism that ensures mediation settlement agreements can be enforceable at the parties' request. The current legal framework includes a number of instruments allowing the parties to create an enforceable title. Among those, the so-called »solicitor's settlement« (Anwaltsvergleich) is rarely used in practice because of the high costs involved. In transposing the Directive, the requirement that both parties to the settlement must be represented by counsel should be dropped. The proposition that at least the mediator must be a lawyer is to be rejected as well. Court control over the exequatur-proceedings suffices to guarantee the indispensible minimum of fairness as well as compliance with public policy.4. The Directive's treatment of the confidentiality problem is disappointing as Art. 7 merely requires that mediators cannot be compelled to give evidence. Much more important than awarding the mediator a privilege is to restrain the parties from exploiting concessions made by the other side in subsequent proceedings in court or before an arbitral tribunal. Therefore, legislators should go further than Art. 7, follow the example of Art. 20 UNCITRAL Conciliation Rules and adopt a comprehensive approach to ensure the confidentiality of mediation.5. Experiments with court-annexed mediation flourish in most German states. However, mediating disputes is different from adjudicating them. Lawmakers should provide mediator-judges with a solid basis for their job by expressly authorizing them to mediate disputes brought to court. There is also a need for some supplementary rules settling the most important issues of court-annexed mediation.6. Under Art. 4 of the Directive, Member States are required to ensure the quality of mediation and to encourage the training of mediators. The drive towards a system where mediators need a licence for offering their services must be resisted. Open access to the market is more important than small gains in terms of quality which would come at high costs. It suffices to enable high-quality mediators to signal their skills by pointing to a certificate which confirms their skills.7. Economic incentives to use mediation must be strengthened. The courts should be authorized to impose cost sanctions, at their discretion, where an otherwise successful party had unreasonably refused to mediate. It is also desirable to include the costs of mediation into legal aid schemes.8. Lawmakers should abstain from going beyond economic incentives and making mediation mandatory.

Gerhard Wagner Born 1962; holds the Chair for Private Law, Business Law and Law and Economics at Humboldt University of Berlin.