The German mediation bill has long been a source of debate and disagreement between the German Parliament’s two chambers. Indeed, disagreement over the terms of the bill was referred to mediation deploying provisions under the German Constitution providing for resolution by mediation of disputes between the two chambers. As a result of a successful mediation, the bill was signed by the President of the Federal Republic on 21 July, published in the Federal Gazette, and came into law on 26 July 2012.
The two biggest bones of contention between the chambers were the use of court-annexed mediation with judges acting as mediators, and the concept of a conciliation judge. As a result of the mediation, both issues were approved and integrated into the Act.
Other regulations in the Mediation Act include:
- Financial incentives to encourage mediation, which is unique in German. Unlike the English court’s right to make adverse costs orders against parties who refuse to mediate, in Germany, individual states can reduce or even waive court fees, if matters are settled through mediation or other means of ADR.
- Introduction of the title of a “certified mediator,” who has to complete at least 120 hours of intensive training. Prior to the Mediation Act, German mediators did not have to meet any specific educational standards required by law. This requirement introduces quality control and monitoring not seen in other jurisdictions.
- Suspension of the statutes of limitation during mediation proceedings.
- Enforceability of settlement agreements reached through mediation as if they are court orders.
Many of the provisions give effect to the Mediation Directive (which should have been implemented in Germany by 20 May 2011.). Germany, although late with implementation, has opted to ‘super-apply’ the terms of the Directive, which strictly only applies to cross-border mediations. In applying its requirements to domestic mediations also, Germany stands apart from the majority of EU member states.