Delimitation: mediation - arbitration - arbitration
While there is some overlap, the following rule of thumb applies :
- The mediation (English mediation ) is open-ended and serves the approach, whereby at the end there can also be an agreement ( settlement ).
- The arbitration (English conciliation ) aims from the outset on a settlement agreement, which is proposed in part by the arbitrator (also: Gutichter , Arbitrator ).
- In arbitration (English arbitration ) can arbitration ultimately take binding decisions.
The weight of the "impartial" (mediator - arbitrator - arbitrator ) increases from top to bottom.
Arbitration as conflict resolution
Compared to legal proceedings, an arbitration procedure has the advantage that the parties can determine the "timetable" themselves with the help of a mediator. On legally sound ground, the procedure comes before a conciliation office , which also uses the mediation procedure, but offers some legal advantages, such as the suspension of the statute of limitations or the enforceability of the agreement.
An arbitrator uses mediation methods to help the parties negotiate with one another. In contrast to the mediator, the arbitrator also makes suggestions for results if he considers this to be appropriate and - provided he is a lawyer and thus authorized to provide legal advice - can also explain the legal situation in this context. A mediator, on the other hand, has no such influence on the result.
Mediation and arbitration are definitely different terms and methodologically different procedures. Mediation is also a special form of alternative conflict settlement involving a third party. The mediator in a mediation ("mediator") has no authority with regard to the subject of the dispute. He neither evaluates the positions of the parties, nor does he make any suggestions for solutions or compromises. As a procedure, mediation lives from the methodological approach of the mediators. The mediators systematically promote communication and clarification of interests between the parties with the aim of facilitating a solution to the conflict for which they are responsible. Accordingly, Article 1 of the Mediation Act stipulates:
- (1) Mediation is a confidential and structured process in which the parties, with the help of one or more mediators, voluntarily and independently seek an amicable settlement of their conflict.
- (2) A mediator is an independent and neutral person with no decision-making authority who leads the parties through the mediation.
In some federal states there is the possibility that mediators are recognized by the state government as a quality authority and given some powers. The Lower Saxony Ministry of Justice publishes a list of the state-recognized quality control centers in Lower Saxony on its website. With the support of professional mediators, the parties are able to find their own solution or regulation so that a solution is not imposed on them by a third party. It usually turns out that the either / or can be overcome and the parties win - often even beyond the original issue of the dispute - that is, can find a solution or regulation with a view to the future that serves their interests equally and sustainably . A lawyer can also act as a mediator. The bar associations sometimes publish lists of mediators.
Areas of application
In collective bargaining , arbitration is a process agreed between unions and employers to bring stalled collective bargaining to an end without a labor dispute . Arbitration during a labor dispute aims to end it, but is much rarer in Germany. The employers' associations of the private economy like to avoid labor disputes because of the foreseeable sensitive economic disadvantages, and therefore seek mediation. In 1992 there was an arbitration in the public service , but this was rejected by the employers. After a strike, the size of the arbitrator's verdict was ultimately agreed. The last arbitration took place on the occasion of the TVÖD 2010 collective bargaining round. Under the chairmanship of Schmalstieg and Milbradt, the wages should be increased by 2.3%.
Arbitration can be requested by either of the two tariff partners . However, it is only possible if both agree to the arbitration. Arbitration procedures in collective bargaining can be agreed informally on a case-by-case basis; As a rule, a neutral mediator is brought in who, after discussions with both parties to the collective bargaining agreement, makes a compromise proposal. However, individual arbitration procedures are contractually stipulated so that arbitration procedures take place on a firm legal basis. Since the labor dispute of 1974 at the federal level, a binding arbitration agreement has been in force in the public service for wage and collective wage agreements. Under this procedure, either side can request an arbitration within 24 hours of the failure of the collective bargaining. The other side is obliged to participate. The arbitration commission has 20 members: nine representatives of the union, three each from the federal, state and local governments, as well as two impartial chairmen, who are appointed by the collective bargaining parties for a period of two years and who change from arbitration to arbitration in the chairmanship of the negotiations. Only the respective chairperson is entitled to vote. No later than ten days after the start of the arbitration, an agreement recommendation must be available that has at least a simple majority. The arbitrator's verdict must be negotiated; only if no agreement can be reached are the negotiations deemed to have failed. Until then, the peace obligation applies and neither side may start a labor dispute until then.
Arbitration through arbitration boards
The motto of arbitration by arbitration offices (arbitrators, i.e. arbitrators) is: "Arbitration instead of judging". The point is not necessarily to judge which of the two parties is right, but to find a common solution to the legal conflict in which both parties give in ( comparison ) and with which both parties can get along - certainly within the legally permissible framework and legal peace is restored. This can also be a solution that would not be decided in this form by a court.
The settlements before the arbitration offices apply just like the agreements before a conciliation office for 30 years and are - like a judgment - enforceable. However, it must be ensured that the settlements are designed with sufficient precision so that - if necessary - a bailiff could enforce enforcement.
It should be noted, however, that the comparison rate is well over 50% of the cases and very few are not met by the parties. Enforcement is only possible in the event of non-fulfillment.
Arbitration proceedings in other areas
Arbitration occurs in all areas of the legal system, unless the procedure is excluded. In an arbitration system, matters relating to family law or matters relating to bill of exchange and check law etc. are usually excluded. It always comes into play where two parties cannot agree on a contractual arrangement, but want or even have to. In these cases, the arbitrator is called upon to propose an agreement, i.e. a proposal for a contract. Depending on the design of the arbitration procedure, this proposal is binding and therefore sets the contractual agreement (e.g. in the case of the mandatory settlement procedure in works constitution law, in the arbitration procedure in health insurance law according to SGB V ), or the arbitrator can only make a non-binding proposal, which the parties then Accept or reject them (collective bargaining law, but also in the case of German Civil Code (BGB) or in a voluntary procedure before the company arbitration board)
In the Austrian Equal Opportunities for People with Disabilities Act, Article 14 stipulates a mandatory arbitration procedure before any legal action. The results can be looked up in an arbitration database.
According to the rulings of the BFH, the costs for civil proceedings may be deducted from the tax return as an extraordinary burden . This must then also apply to the costs of an arbitration procedure that avoids litigation, the Düsseldorf Finance Court ruled in August 2013 .
- Christoph Besemer: Mediation. Mediation in conflicts. 9th edition. Nonviolent Living Foundation / Workshop for Nonviolent Action, Königsfeld 2002.
- Hellmut Georg Isele : Legal Problems of State Arbitration. Regarding the Rhineland-Palatinate State Law on Compensation and Arbitration in Labor Disputes of March 30, 1949 (= treatises of the humanities and social science class of the Academy of Sciences and Literature in Mainz. Born in 1968, No. 1).
- Arbitration agreement public service dated September 30, 2002 (PDF; 31 kB)
- Arbitration according to the Austrian Disability Equality Act
- Quality control centers in Lower Saxony
- Volker Römermann, Jan-Philipp Praß: Is a mediator (also) a lawyer? - Lawyers are allowed to have second professions (close to lawyers and those who are not lawyers). In: anwaltsblatt-karriere.anwaltverein.de. German Bar Association, November 18, 2013, accessed October 24, 2017 .
- So far, two major strikes in the public sector. In: RP online . June 8, 2000, accessed December 17, 2019 .
- Michael W. Felser: TVÖD tariff result: arbitration public service 2010. In: Felser.de . Retrieved May 30, 2020.
- See for example the arbitration and cost regulations of the Aachener Anwaltverein eV In: aachener-anwaltverein.de. Aachen Bar Association, accessed on October 24, 2017 .
- FG Düsseldorf, communication of December 6, 2013 on judgment 11 K 3540/12 of August 8, 2013. The plaintiff (owner of a two-family house in a former mining area) made legal fees and expert fees in connection with an arbitration procedure in his income tax return for 2010 Arbitration board for mining damage in North Rhine-Westphalia as an extraordinary burden. The plaintiff had made claims for damages against the mining company and finally reached a settlement before the arbitration board. The tax office had refused to deduct the expenses as an extraordinary burden with reference to the lack of inevitability.