1. www.izo.uni-frankfurt.de Seite 1 China-EU School of Law, Beijing November 7, 2012 The New German Act on Mediation (Mediationsgesetz) Prof. Dr. Moritz Bälz, LL.M.

2. Seite 2 Overview A.Background of the Reform B.Advantages and Disadvantages of Mediation C.Key Features of the New German Law D.Critique and Remaining Issues

3. Seite 3 A. Background of the Reform I.Access to justice as integral part of the rule of law / Rechtsstaat II.Variety of possible dispute resolutions instruments: Judgment by public courts v. alternative dispute resolution (ADR) III.Misconception of court judgment as the “normal” way to resolve legal disputes. Cf. von Jhering (The Struggle for Law, 1872): “The end of law is peace. The means to that end is war.” => Research Focus in Frankfurt on "Extrajudicial and Judicial Conflict Resolution”

4. Seite 4 A. Background of the Reform IV.A Simple Categorization State CourtOther Third PartyNo Third Party Binding Decisionjudgmentarbitral award Non-Binding Proposal conciliation (Schlichtung) Facilitated Agreement in-court/ court-related mediation (usually by judge other than the judge seized with the case) out-of-court mediation (facilitated by lawyer or non- lawyer out-of-court) => Mediation Act Agreementsettlement (may be assisted by judge seized with the case) settlement (assisted by arbitrator etc.) settlement

5. Seite 5 A. Background of the Reform V.Mediation under the Mediation Act (MA) 1.“Confidential and structured proceeding in which the parties, voluntarily and on their own responsibility, seek an amicable settlement of their dispute with the assistance of one or more mediator(s)” (§ 1 MA) 2.Third party’s role focused on facilitating communication and a mutual agreement “Mediator is an independent and neutral person without power to decide who shall be guiding the parties through the mediation process.” (§ 2 MA)

6. Seite 6 B. Some Advantages and Disadvantages of Mediation I. Pros 1.Reduced burden on the courts 2.Easier access to justice 3.Flexible and comprehensive dispute resolution 4.High acceptance of the results II. Cons 1.Risk of further protracted proceedings 2.Tensions with the rule of law? 3.Need to protect the weaker part 4.Difficulties in ensuring the quality of mediators

7. Seite 7 C. Key Features of the New German Law I.Aims 1.Establishing for the first time a legal framework for mediation 2.Promoting and strengthening mediation and other forms of ADR 3.Transforming EU directive 2008/52/EC on certain aspects of mediation in civil and commercial matters into German law (though going considerably further than required by directive)

8. Seite 8 C. Key Features of the New German Law II.Key Provisions 1.It should be declared in any statement of claim whether ADR has been considered (§ 253 Code of Civil Procedure) 2.Key definitions (§ 1 MA, see above) 3.Selection and role of mediator(s) (§ 2 MA) Judges will no longer be allowed to serve as mediators, but may use mediation techniques when acting as conciliatory judges (Güterichter) 4.Disclosure requirements, restrictions on other activities (§ 3 MA)

9. Seite 9 C. Key Features of the New German Law 5.Confidentiality (§ 4 MA) 6.Training and certification of mediators (§§ 5, 6 MA) Mediators are obliged to make sure they have adequate knowledge and experience (for attorneys in addition professional restrictions) Label of “certified mediator” after a minimum of 120 hours of training, continuing education obligation (future ordinance) 7.Financial incentives may be introduced on state-level (§ 7 MA) 8.Evaluation within five years (§ 8)

10. Seite 10 D. Critique and Remaining Issues I.What can we realistically expect from mediation? II.To what extent does regulating mediation make sense? III.How should we design the interface between ADR and the judicial system? IV.Who will / should typically serve as mediator in the future? V.Need for additional measures?

11. www.izo.uni-frankfurt.de Seite 11 Thank you very much for your attention!