Court Internal Mediation – Recommendations based on German Pilot Projects Gerichtsinterne Mediation – Regelungsempfehlungen vor dem Hintergrund der Pilotprojekte an deutschen Gerichten
Volume 74 (2010) / Issue 4, pp. 781-793 (13)
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For a number of years, judges at several German courts having jurisdiction over civil, employment, administrative and social welfare matters have been appointed as mediators on a test basis. Cases are allocated to them by the presiding judges for the purpose of mediation. In the event that the mediation fails, the case is referred back to the trial judge, the confidentiality of the mediation proceedings being thereby preserved.The tests have proven to be very successful. A settlement is reached in 70–85% of the cases, many of which are very complex. The satisfaction of the parties with the proceedings and the result has been exceptional. Positive influences on the trial practices of the courts have also been identified. However, there are considerable differences between the courts' internal mediation proceedings and out-of-court mediation. The courts cannot generally offer mediation proceedings which involve several meetings nor a comprehensive resolution of personal conflicts.The possibility for a judge who is not presiding over a particular case to conduct confidential discussions with the parties, with the aim of amicably resolving the conflict, should be introduced at all courts. Additionally the courts should suggest out-of-court mediation or an independent evaluation (e.g. expert determination) where appropriate. Certain elements of the mediation process can, however, also be incorporated into the proceedings of the trial courts.An urgent priority should be achieving an amicable resolution to conflicts even before the cases come before the courts.