Mediation under German Law
Mediation is a confidential and structured process in which parties, through one or more mediators, strive voluntarily and independently to resolve disputes by mutual agreements. Before long and extensive Court proceedings with an unknown outcome, it may be useful to use an out-of-court “solution of the conflict” e.g. through mediation. Even in an already existing court procedure, mediation can offer an opportunity to go toward a legal agreement by discussing the subjects of the legal disputes.
The mediation procedure is voluntarily carried out by the parties of the dispute. Even judicial mediation (a judge who is not involved in the proceedings as a mediator) is possible in some countries. In mediation, the parties must agree on a mediator who will lead the mediation process and lead through the oral proceedings.
A mediator is an independent and neutral person without decision-making authority, which leads the parties through mediation. Mediators are often judges or lawyers. However, this vocational training is not always necessary (but it is helpful in complex legal situations).
The mediator is equally committed to all parties. It promotes the communication of the parties and ensures that the parties are adequately and fairly involved in the mediation. He may have separate agreed conversations/discussions with both parties. The mediator must disclose to the parties all the circumstances which may affect his judiciary independence and neutrality. In the event of such circumstances, he may act only as a mediator if the parties expressly agree to it. The mediator is not allowed to work for a party that has been previously involved in a case of the mentioned mediator.
A person may not act as a mediator if another person associated with him in the same professional or office community has worked for a party before the mediation in the same case. Such other person shall also not be allowed to act on behalf of a party in the same case during or after mediation.
The parties are entitled to choose the mediator. The mediator is obliged to inform the parties, at their request, about his professional background, his education and his experience in the field of mediation.
The mediator makes sure that the parties have understood the principles and the course of the mediation process and that they are both willing to voluntarily participate in the mediation.
Third parties may be included in mediation only with the consent of all parties. The parties may terminate the mediation at any time. The mediator can terminate the mediation, especially if he considers that a self-responsible communication or an agreement of the parties is not to be expected.
In the event of an agreement, the mediator shall ensure that the parties are aware of the consequences and understand the content of the agreement. He has to advise the parties, who are involved in mediation without technical advice, on the possibility to have the agreement reviewed by external consultants, if necessary.
With the consent of the parties, the agreement reached can be documented in final agreement documentation.
Duty of confidentiality of the mediators
The mediator and the persons involved in the implementation of the mediation procedure are obliged to maintain secrecy unless otherwise specified by law. This obligation relates to everything that has become known to them in the exercise of their activity. Notwithstanding other legal provisions on the obligation of secrecy, it shall not apply to the extent that
1. the disclosure of the content of the obtained agreements implementation is necessary,
2. or if overriding considerations of the public order are provided, for example for a child´s well-being or for serious impairment of a person´s physical or psychological integrity, or
3. or there are facts which are manifest or do not require any secrecy.
The mediator shall notify the parties on the extent of his obligation of secrecy/ duty of confidentiality.
Arbitration procedures, conciliation procedures and legal proceedings
The mediation procedure is not an arbitration procedure (there is no arbitration), not a conciliation procedure (no conciliation) and not a court proceeding (there is no judicial decision).