New German Mediation Law…Sent for Mediation

Today’s post comes from one of the JAMS International panelists, Judge Sabine König. Judge König is a pioneer of ADR in Germany. A co-founder of the German section of Groupement pour l'Enseignement Supérieur sur Mesure Médiatisé (GEMME, European Judges Association for Mediation), she served on the board for several years and is currently a vice general secretary.

On February 2, 2012, the German Bundesrat -- the equivalent of the United States Senate or UK House of Lords – announced a further twist in the long-running discussion over German’s first mediation law. Following two years of hearings and legislative proceedings, the German government issued a draft of the German Mediation Code dated January 12, 2011, prompted by the requirements of the 2008 EU Directive on Mediation. Prior to the Directive, Germany had no specific mediation law. The new Mediation Code had multiple aims: to strengthen mediation in all areas of law; protect confidentiality of mediation proceedings; protect mediators’ right to refuse to give evidence; ease enforcement of mediation agreements; support court-annexed mediation; evaluate cost savings in family matters; and to extend the court‘s power to refer matters to mediation.

At the time of writing, Germany has yet to comply with articles in the Directive calling for enforceability of agreements, ensuring mediators’ rights to refuse to give evidence and ensuring quality of mediation.

One sticking point has been a difference of opinion between the Bundestag – the equivalent of the United States House of Representatives or UK House of Commons – and Bundesrat on the subject of court-based mediation. In February 2012, the Bundesrat announced that the inconsistencies in legislation are to be mediated. The process is to be managed by Germany’s Mediation Committee, a constitutional institution comprising 16 members from German Bundestag and 16 members from German Bundesrat. The committee’s purpose is to find agreement between the Bundestag and Bundesrat where legislation passed by the bodies is inconsistent.

The principal cause of division has been that the Bundestag eliminated court-based mediation from the new mediation law.  The Bundesrat is persuaded that court-based mediation has proven advantages, especially for resolving large and complex disputes.

Data suggests that court-based mediation has been effective in resolving all manner of disputes in Germany, including simple, complex and high-value disputes. In such programs, judges who are not involved in the underlying case serve as mediators. Reported settlement rates in court-based mediation programs have ranged from 66 to 80 percent. These settlement rates in some instances include complex cases which have already been considered in court. In addition, participants in court-based mediations have been very positive in their assessment of the program, with 91 percent saying they were satisfied with the process and 84 percent with the result of mediation.

German mediators are watching with interest to see how the conflict will be resolved by the Mediation Committee.