Extrajudicial Mediation: Experiences with the Austrian Act on Mediation Gerichtsexterne Mediation, Erfahrungen mit dem österreichischen Mediationsgesetz
Volume 74 (2010) / Issue 4, pp. 759-780 (22)
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With the Federal Act on Mediation in Civil Matters, in effect since 1 May 2004, Austria has created a widely-observed dispute resolution regulation which allows the extrajudicial consideration of court disputes. Key elements of the law include: the voluntary nature of mediation, mediator neutrality, the confidentiality of mediation proceedings and, further, a mandate on the Ministry of Justice to both maintain a list of registered mediators and create official centres for their training and education. Individuals wishing to be registered as mediators must: be at least 28 years old, hold a professional qualification, be trustworthy and possess the necessary professional liability insurance. Initial registration is valid for 5 years; upon continuing satisfaction of all prerequisites, subsequent re-registrations are valid for 10 years. Inclusion in the Ministry of Justice list effectively provides the mediator with a »seal of approval«: it ensures the quality of the mediator as well as the official legal framework in which mediation occurs. Registration is, however, not a requirement for offering mediation services. As of February 2010, 3,254 individuals were registered in the state list.Survey of mediators and members of the Ministry of Justice's mediation council indicate that the legal framework created by the Act on Mediation has been fundamentally welcomed and contributed profoundly towards promoting the quality of mediation services in Austria. Critics, however, have noted that the mediator listing created by the Act has not had the desired effect whereby registered mediators would increasingly be called upon to perform mediations. An overall increase in the implementation of mediation proceedings – hoped for by many mediators – has failed to materialize. According to the opinion of those surveyed, the initiation of specific procedural law mechanisms and, above all, a more intensive campaign promoting the benefits of mediation will be necessary to create a greater impact in practice. The coming implementation of the EU Mediation Directive may serve as a forum for such considerations and initiative.