The German Mediation Act 2012
By Dr. Karl Friedrich Dumoulin, FPS Rechtsanwälte & Notare
The German Mediation Act 20-12, which has been in Force since 26 July 2012 (hereinafter referred to as "the Act"), not only regulates the mediation of cross-border disputes between EU member states (thereby implementing EU Directive 20o8/52/EC) but also the mediation of domestic disputes.
The Act seeks to strengthen mediation as an alternative tool for settling disputes on an amicable basis. lt defines the terms "mediation" and "mediator". Moreover, it contains provisions regarding procedure, the mediator's obligations to disclose any information impairing his or her independence and neutrality ("conflict of interest") as well as both the mediator and the involved parties' obligations to treat any information disclosed by either party in the course of the mediation proceedings as strictly confidential (subject to statutory duties or reasons of ordre public).
The Act also provides the essentials regarding standards for the training and acknowledgement of "certified mediators" (to be regulated in detail by secondary legislation yet to be enacted).
The Act has been accompanied by changes to the German Code on Civil Procedure ("the Code"). The Code authorises civil courts to refer a case to a judge — delegated and without decision-making power — for a conciliation hearing and further attempts at conciliation. The judge may use all methods of dispute resolution, including mediation. Additionally, the court may propose mediation proceedings to the parties and, if the parties agree to mediation, the court may order the suspension of proceedings. lt goes without saying that a judge involved in mediation is excluded from deciding the case. The Code also provides for the right of the mediator to refuse to give evidence in court with regard to any information disclosed to him or her in mediation proceedings if called as a witness. The Code does not implement provisions on the access to execution.
The legislator considered the already existing provisions to be sufficient (declaration of enforceability of settlement agreements by a court or a notary) as was also the case for the issue of time limitation (see the general provisions of the German Civil Code on the suspension of the limitation period due to negotiations).
Dr. Karl Friedrich Dumoulin, Patner
FPS Rechtsanwälte & Notare, Dusseldorf, Germany
T: +49 211 30 20 15 14
Dr. Karl Friedrich Dumoulin is Vice Global Chairperson of the GGI International Dispute Resolution Practice Group and partner at FPS in Dusseldorf. His areas of expertise cover the entire range of corporate and commercial law including litigation and dispute resolution, very frequently in an international context.
FPS Rechtsanwälte & Notare is one of the largest fully independent German law firms with offices in Berlin, Dusseldorf, Frankfurt/Main and Hamburg. FPS currently employs over 120 lawyers and notaries. One of the firm's core areas of expertise is national and international litigation as well as dispute resolution.
published: January 2014