Mediation Act

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Basic data
Title: Mediation Act
Abbreviation: MediationsG
Type: Federal law
Scope: Federal Republic of Germany
Issued on the basis of: Article 73.1 no.9,
Article 74.1 no.1, 11 GG
Legal matter: Administration of justice
References : 302-7
Issued on: July 21, 2012
( BGBl. I p. 1577 )
Entry into force on: July 26, 2012
Last change by: Art. 135 Regulation of August 31, 2015
( Federal Law Gazette I p. 1474, 1496 )
Effective date of the
last change: 		September 8, 2015
(Art. 627 of August 31, 2015)
Please note the note on the applicable legal version.

The Mediation Act is Article 1 of the Act to Promote Mediation and Other Out-of-Court Conflict Resolution in Germany. It is a federal law that went into effect on July 26, 2012.

In addition, the Certified Mediator Training Ordinance came into force on September 1, 2017 .

content

The starting point for the creation of the law was Directive 2008/52 / EC (Mediation Directive) of May 20, 2008. It specified certain aspects of mediation in civil and commercial matters from the area of ​​cross-border disputes until May 20, 2011 in German Implement law.

On January 12, 2011, the Federal Cabinet passed a draft law submitted by the Federal Ministry of Justice. The aim of the law was stated to be the promotion of mediation and other procedures for out-of-court conflict resolution, whereby this promotion should go beyond the requirements of the directive. The various forms of mediation, out-of-court, in-court and near-court mediation, were previously unregulated. There were also no legal stipulations regarding the training of mediators.

The draft law for the promotion of mediation and other procedures for out-of-court dispute resolution contained the following structure:

The draft law was passed by the Bundestag on December 15, 2011 in the third reading. However, criticism was voiced from some federal states because the draft law did not provide for mediation by judges, although judges there were already conducting mediation proceedings. The Federal Council then called the Mediation Committee on February 10, 2012 . This was 27 June 2012 on the basis of the adjusted by the Legal Affairs Committee of the German Parliament on 1 December 2011. The draft law proposed resolution, the future should be the legal judge the dispute to a so-called " quality judges can refer." Objectively, this person should then be able to use all methods of conflict resolution, including mediation, and should still be called "judicial mediator" for a transitional period of one year from the entry into force of the Mediation Act. The recommendation for a resolution was accepted by the Bundestag on June 28, 2012, whereupon the Bundesrat decided on June 29, 2012 not to lodge an objection.

The Mediation Act (Article 1 of the Act to Promote Mediation and Other Out-of-Court Dispute Resolution) has the following content:

  • § 1 Definitions
  • § 2 procedure; Duties of the mediator
  • § 3 Disclosure Obligations; Activity restrictions
  • § 4 Confidentiality
  • § 5 Education and training of the mediator; certified mediator
  • § 6 Authorization to issue ordinances - authorizes the BMJV to issue an ordinance on training and further training to become a certified mediator as well as the requirements for training and further training institutions
  • § 7 Scientific research projects; financial promotion of mediation
  • § 8 Evaluation - provides for an evaluation report by July 26, 2017
  • § 9 Transitional Provision

criticism

Criticism of the draft law was voiced at an early stage in the professional associations of lawyers and judges. The area of internal court mediation , for which the judge is now designated, was discussed as problematic . From the point of view of the out-of-court mediators, the argument of a distortion of competition on the supplier side was used against the ongoing in-court mediation - now resolved by the law - : "The legislature will have to decide whether to disregard this state subsidization of mediation at the expense of professional groups who Require fees for their services, want to continue or not. "

On the other hand, the federal states had emphasized to the mediation committee that in-court mediation in particular had developed into a successful instrument of dispute settlement and should therefore not be ruled out as an effective alternative procedure for those seeking justice.

After the compromise between the Bundesrat and the Bundestag was reached, the professional associations also partly abandoned their critical stance. Michael Plassmann, chairman of the BRAK's Extrajudicial Dispute Settlement Committee, emphasized that the Mediation Act still gives priority to extrajudicial dispute settlement. At the same time, he welcomed the guilty party model and agreed that the judiciary had made an important contribution to the establishment of consensual procedures in recent years. The judge's internal judge is allowed to make a legal assessment and also suggest concrete solutions to the conflict to the parties; he may not call himself a mediator, but still use all mediation methods. A further difference is pointed out with regard to the free judge proceedings: A judge with whom the legal dispute is pending can unilaterally refer the parties to the judge, but only suggest an out-of-court mediator. Some specialist media emphasized that the law was finally able to come into force after long negotiations, and it was to be expected that free mediators would benefit from the new law despite the mercy judge model.

Even after the Mediation Act has come into force, innovations are required to strengthen out-of-court mediation as an interdisciplinary field of activity. Criticism is sparked by the competition with the free judge proceedings, the insufficiently differentiated training and certification of mediators, the lack of mediation aid and insufficiently justified access restrictions.

Evaluation report

As provided for in the Mediation Act, an evaluation report was submitted within five years on July 19, 2017. In the report, which was commissioned by the Federal Ministry of Justice and Consumer Protection, it was concluded that mediation is still underutilized as an alternative instrument for conflict resolution in Germany.

Web links

literature

  • Martin Ahrens : Mediation Act and Judges - New legal regulations for judicial and extrajudicial mediation. In: Neue Juristische Wochenschrift (NJW), 2012, issue 34, pages 2465–2474.
  • Reinhard Greger and Hannes Unberath : Mediation Act. Right of alternative conflict resolution. Comment . CH Beck publishing house. Munich. 2012. ISBN 978-3-406-61709-6
  • Gerrit Horstmeier : The new mediation law. Introduction to the new mediation law for mediators and mediands . CH Beck publishing house. Munich. 2013. ISBN 978-3-406-64353-8
  • Arthur Trossen (Ed.): Mediation (un) regulated. A textbook commentary on mediation law . Win-Management GmbH - publisher. Altenkirchen 2014. ISBN 978-3-9813854-3-4

Individual evidence

  1. ↑ BMJ press releases of January 12, 2011 with a link to the draft text ( Memento of August 27, 2011 in the Internet Archive )
  2. ^ Resolutions of the Bundestag from December 14th to 16th
  3. ↑ Solving the problem of mediation judges. Haufe, July 23, 2012, accessed July 23, 2017 .
  4. ↑ [1]  ( page no longer available , search in web archives )@1@ 2Template: Toter Link / www.bundesrat.de
  5. ↑ Press release of the Legal Affairs Committee on the hearing of experts ( Memento of November 6, 2011 in the Internet Archive ) of May 25, 2011
  6. ↑ http://anwaltsblatt-karriere.anwaltverein.de/mediation-2009.html
  7. ^ Federal Council press release  ( page no longer available , search in web archives ) of June 27, 2012@1@ 2Template: Toter Link / www.bundesrat.de
  8. ↑ Press release of the Federal Bar Association of June 28, 2012
  9. ↑ a b Article on the Mediation Act on Familienrecht.de
  10. ↑ Interview: “The state competes with private mediators for free”. In: haufe.de. August 4, 2012, accessed April 18, 2019 .
  11. ^ Friederike Jung, Klaus Peter Kill: One year mediation law. The benefits and disadvantages for providers and consumers . Conflict Dynamics, Volume 2, No. 4/2013, pp. 312–318, Online ( Memento of the original from April 2, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. ISSN 2193-0147 . In it: p. 317 @1@ 2Template: Webachiv / IABot / www.klett-cotta.de  
  12. ↑ Adopted today: Evaluation report on the Mediation Act. In: mediationaktuell.de. Wolfgang Metzner Verlag, July 19, 2017, accessed on July 23, 2017 .