Comparative Research for the Regulation of Mediation Rechtsvergleichende Erfahrungen für die Regelung der Mediation
Volume 74 (2010) / Issue 4, pp. 841-881 (41)
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The history of mediation is a history of comparative and interdisciplinary learning. Using comparative research for the implementation of the Mediation Directive is a promising endeavour. However, foreign legal rules may not blindly be copied. Instead, differences in legal cultures and institutions have to be taken into account.For the regulation of mediation in civil and commercial matters in Germany, a comparison of laws does not yield a preference for extensive or restrictive regulation. In cases of doubt about the necessity of regulation it is recommended to abstain from regulation. Similarly, those types of legal rules should be used which interfere only as far as necessary with the freedom of the persons involved (e.g. non-mandatory rules should be preferred to mandatory rules if possible).In principle, agreements to mediate should be enforceable both in substantial and procedural law. To a large degree this is already the case under the current legal regime. However, following the English example procedural cost sanctions should be introduced statutorily in cases where parties do not comply with the agreements to mediate they entered into.The regulation of the confidentiality of mediation should assume a comprehensive starting point as regards persons, contents and items affected. Then, however, the scope of protection should be limited in the interest of the public, third persons and to avoid an »escape into mediation".To prevent uncertainty of law, mediation should be introduced in section 204(1) BGB (German Civil Code) as an event triggering the extension of the limitation period of claims. An equivalent rule should be formulated for cut-off periods in substantive law to prevent mediation from being burdened with the threat of their expiry.The exequatur procedure in sections 796a et seqq. ZPO (German Code of Civil Procedure) should be used as a model to regulate the enforceability of settlements reached in mediation. Following the example set in the Netherlands, it is recommended to introduce mediation coordinators at the courts as well as mediation self-tests complementing the court's recommendation to use mediation.With a view to overcoming both detrimental habits in dealing with conflicts and information deficiencies, mediation should be encouraged by the introduction of financial sponsorship and legal aid for mediation.The core of mediation is to be kept free of mandatory regulation, since this procedure rests on the freedom and personal responsibility of the parties. The professional law of mediators should be regulated by implementing an incentive model (instead of an admission or market model). As regards the further development of mediation, the success factors are: cost and time efficiency as classical strengths, anchoring mediation institutionally in substantive and procedural law as well as information of the relevant persons.