Mediation

Germany is a member state of the European Union. Therefore, Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters had to be transferred into German law. Directive 2008/52/EC provides minimum standards that had to be considered by the legislator of the German Mediation Code dated 21 July 2012.

Also, the European Code of Conduct for Mediators (http://ec.europa.eu/civiljustice/adr/adr_ec_code_conduct_en.pdf) is relevant to Germany as a voluntary set of principles in mediation.

In addition, the Regulation (EU) No. 524/2013 of the European Parliament and of the Council of 21 May 2013 on Online Dispute Resolution for Consumer Disputes and the Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on Alternative Dispute Resolution for Consumer Disputes have to be transferred into German law.

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The Mediation Code came into force on 26 July 2012. It is now the primary source for mediation in Germany in domestic as well as international cases.

The Mediation Code provides regulations for the following areas:

• section 1: definition of mediation and of the mediator;
• section 2: procedure of mediation, rights and duties of the mediator;
• section 3: neutrality and impartiality of the mediator;
• section 4: confidentiality obligations for the mediator;
• sections 5 and 6: basic and continued education for mediators, and requirements for the certified mediator;
• section 7: research and financial support of mediation; and
• section 8: evaluation of the development of mediation in Germany.

Further, the German Code of Civil Procedure (ZPO) and other statutes have been amended in several provisions, for example, section 253, paragraph 3 ZPO: in the event of commencement of an action, the claimant should declare in the statement of claim whether mediation has been tried beforehand, and if not, the relevant reasons for the refusal of conducting mediation in the given case.

In addition, the court can recommend mediation during the court proceeding; for the time of mediation, the court can stay the proceeding (section 278a ZPO).

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The following provisions of the Mediation Code must be considered as mandatory:

• section 2.1: the parties choose the mediator;
• section 2.2: the mediator has to be sure that the parties understand the principles and the structure of the mediation proceeding and that the parties participate in the mediation voluntarily;
• section 2.3: the mediator must be neutral and has to aid the communication of the parties. He or she has to be sure that the parties are involved in the mediation proceeding in an adequate and fair manner. He or she needs the approval of all parties for private sessions (caucuses);
• section 2.4: third parties can only be involved in the mediation proceeding if all parties agree to it;
• section 2.5: the parties can terminate the mediation at any time. The mediator can terminate the mediation proceeding if he or she is of the opinion that the parties will not reach a settlement or if the parties can no longer communicate in an appropriate way;
• section 2.6: the mediator has to work towards a settlement whose content is understood by the parties. The mediator has to inform the parties who are not represented by advisers that they have the possibility of seeking the advice of external counsel before closing;
• section 3.1: the mediator has to reveal all circumstances that could affect his or her neutrality and impartiality;
• section 3.2: if a person already advised a party, he or she cannot act as a mediator in the same matter;
• section 3.5: the mediator is obliged to inform the parties on their demand about his or her background, education and expertise in the area of mediation;
• section 4: the mediator is obliged to keep confidential all information received in the course of the mediation proceeding; and
• section 5: the mediator is responsible for ensuring his or her own adequate basic and advanced training.

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Mediation remains voluntary even after the enactment of the Mediation Code. The German courts or other official institutions cannot order mediation before or during a court proceeding; they can only recommend mediation and, if the parties agree to mediation during a court proceeding, stay the court proceeding for the duration of mediation proceeding (section 278a, paragraph 2 ZPO).

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The German courts cannot order mediation before or during a court proceeding; they can only recommend mediation, as already mentioned. Only in family cases (divorce, child custody, etc) can the family court order the parties to participate in an information meeting referring to mediation (section 135 of the Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction).

According to section 278, paragraph 5 ZPO, the parties of a court proceeding can be transferred to a conciliation judge. The conciliation judge is a judge different from the appointed judge for the case who has no decision power but tries with the parties to resolve the dispute by means of alternative dispute resolution (ADR). The conciliation judge has discretion regarding the methods of ADR to be applied in a certain case. In practice, predominantly mediation is applied in such cases. If the settlement efforts of the conciliation judge fail, the case continues in court for decision.

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Mediation and arbitration are considered as completely different proceedings. The two proceedings are rarely combined, especially because German arbitrators are used to arranging settlement hearings within the arbitration proceedings (see, for example, section 32.1 of the German Institution of Arbitration (DIS) Arbitration Rules: at every stage of the proceedings, the arbitral tribunal should seek to encourage an amicable settlement of the dispute or of individual issues in dispute). According to section 1053, paragraph 1 ZPO, an arbitral award with agreed terms is a possible option for parties to arbitration proceedings.

If mediation and arbitration are combined, it is either in the way of med-arb - mediation first, arbitration later (if mediation fails to resolve the dispute) - or in the way of a mediation window (a period of time during an arbitration that is set aside so mediation can take place and during which there is no other procedural activity). It is generally understood, however, that a mediator must be different from an arbitrator in the same proceeding. According to section 3.1 of the Mediation Code and section 1036, paragraph 1 ZPO, the concentration of both roles in one person could cause problems in respect of neutrality and impartiality. It is also considered as dangerous for the validity and enforceability of the later arbitral award.

In addition, conciliation is widely used in Germany, especially in certain areas of legal disputes (eg, in collective bargaining between unions and employers, in disputes under public law or in certain labour law disputes). According to the German understanding, in conciliation the neutral’s decision is non-binding for both parties.

Further, adjudication becomes increasingly known in Germany as a method of choice for dispute resolution in the construction industry. The Deutsche Baugerichtstag eV, a German organisation referring to construction disputes, defined in 2010 recommendations for procedures to resolve disputes in the construction industry out of court. In 2013, a legal opinion of Hans-Jürgen Papier, the former President of the German Federal Constitutional Court, confirmed that adjudication is compliant with the German Constitution. In the following year rules for dispute resolution in the construction industry were enacted (AO-Bau/Alpha). In December 2013, the German Association for Dispute Resolution in the Construction Industry was founded.

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Several conciliation committees for consumer disputes exist in Germany, for example, the conciliation committee for public passenger traffic, the conciliation committee for energy and the ombudsman for bank and insurance companies who is responsible for disputes between banks and consumers. In addition, the German Ministry for Food, Agriculture and Consumers supports the establishment of a European Consumer Centre.

There is no significant use of online mediation for the time being. Nevertheless, it should be noted that Regulation (EU) No. 524/2013 of 21 May 2013 on Online Dispute Resolution for Consumer Disputes applies from 9 January 2016. Further, the Code for Settlement of Consumer Disputes entered into effect on 1 April 2016, which transfers the Directive 2013/11/EU of 21 May 2013 on Alternative Dispute Resolution for Consumer Disputes into German law.

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According to section 4 of the Mediation Code, the mediation proceeding is confidential by law for the mediator. The Mediation Code does not cover the confidentiality obligation of the parties as well as of experts or other external persons who are included in the mediation proceeding. Such confidentiality must be agreed by separate contracts or explicit confidentiality declarations.

The exceptions of the mediator’s confidentiality obligations are also governed by section 4 of the Mediation Code. The disclosure of the content of the mediation proceeding is allowed if the following applies:

• it is necessary for the implementation or enforcement of the settlement agreement;
• it is necessary for overriding considerations of public policy, in particular when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person; or
• the disclosure refers to facts that are obvious or that are not sufficiently important to necessitate their remaining confidential.

The disclosure of confidential information by the parties or other persons involved in the mediation proceeding depends on the provisions of the confidentiality agreement or on professional regulations, for example, existing for lawyers or tax advisers.

According to section 4, paragraph 1 of the Mediation Code in connection with section 383, paragraph 1, No. 6 ZPO, all mediators are exempted from the obligation to give evidence in court proceedings or in arbitration. This is applicable for civil cases, however, not for criminal cases. The parties can release the mediator from the duty of confidentiality for civil cases according to section 385, paragraph 2 ZPO, which would lead to the possibility of the mediator giving evidence in court or arbitration proceedings.

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According to section 203 of the German Civil Code, the limitation period is suspended for the duration of the mediation proceeding. As soon as the mediation proceeding is terminated, a grace period of three months starts. After the three-month grace period the limitation period continues.

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The settlement agreement at the end of a mediation proceeding essentially has the character of a contract that is binding between the parties. If the contract shall not be binding, it must be stated explicitly. All statutory regulations of German contract law apply for the mediation settlement agreement. This means that revision, withdrawal or challenge of the final settlement agreement follows the general rules of German contract law.

Such a settlement agreement is not enforceable in the same way as a judgment or an arbitral award. In fact, the enforceability of the settlement agreement requires further efforts and can be achieved in a number of ways, as follows:

• approval by a notary public: section 794, paragraph 1, No. 5 ZPO;
• a court-approved settlement agreement if the mediation was conducted in parallel to a court proceeding: section 794, paragraph 1, No. 1 ZPO;
• transfer of the settlement agreement into an arbitral award with agreed terms: section 794, paragraph 1, No. 4a ZPO; or
• transfer of the settlement agreement into an agreement by the lawyers of the parties and recorded by the responsible district court: section 796a, paragraph 1 ZPO.

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In recent years several mediation organisations and institutions have been founded as private entities. The most prominent institutions are:

Working Group for Mediation of the German Bar Association

Littenstrasse 11

D-10179 Berlin

Tel: +49 30 72 61 52 128

http://mediation.anwaltverein.de

A subcommittee for mediation of the German Lawyer’s Association that supports mediation in the legal profession.

The Federal Association of Mediation eV

Wittestrasse 30 k

D-13509 Berlin

Tel: +49 30 43 57 25 30

www.bmev.de

The largest German mediation association in terms of the number of members, including mediators from all fields of mediation.

The Federal Association for Mediation in Economic and Employment Issues

Prinzregentenstrasse 1

D-86150 Augsburg

Tel: +49 821 58 86 43 66

www.bmwa-deutschland.de

A German mediation association specialising in commercial mediation and mediation in the workplace.

The Federal Working Group for Family Mediation eV

Spichernstrasse 11

D-10777 Berlin

Tel: +49 30 23 62 82 66

www.bafm-mediation.de

The only German mediation association specialising in mediation in family matters.

Centre for Mediation

Verlag Dr Otto Schmidt KG

Gustav-Heinemann-Ufer 58

D-50968 Cologne

Tel: +49 221 93 73 88 21

www.centrale-fuer-mediation.de

A service centre for mediators and parties, providing information on mediation and other methods of conflict resolution and also supporting parties in their search for a mediator.

European Institute for Conflict Management (EUCON)

Brienner Strasse 9

D-80333 Munich

Tel: +49 89 57 95 18 34

www.eucon-institut.com

The leading mediation association for commercial mediation.

The German Institution of Arbitration (DIS)

Beethovenstrasse 5-13

D-50674 Cologne

Tel: +49 221 28 55 20

www.disarb.org

The DIS offers not only support for arbitral proceedings but also for other procedures of ADR, especially for mediation.

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The settlement of disputes has a long history in Germany. The German Code of Civil Procedure and former procedural laws focus on the task of judges to achieve a settlement between the parties in court.

Historical documents show that Alvise Contarini, an Italian diplomat, was appointed as mediator to negotiate the Peace of Westphalia as finalised in Münster and Osnabrück on 15 May 1648 and 24 October 1648 respectively to end the Thirty Years’ War (1618-1648).

However, mediation in its modern form started in Germany at the end of the 1970s. One first initiative regarding mediation was made in the field of legal sociology, at a conference held in 1977, and later published in the Yearbook of Legal Sociology and Legal Theory. In 1979, the President of the Federal Constitutional Court pointed out the limited resources of the legal system (Bender, German Judges’ Newsletter (1979) p. 357). The President of the Federal Court of Justice also concluded that there was a need for more efficiency in the judicial system, which mediation in particular could provide (Pfeiffer, International Journal of Legal Policy (1981) p. 121).

Until the late 1990s the general interest in non-adversarial ADR methods was relatively modest in Germany. Mediation was quite rare and its use mostly confined to the fields of divorce and environmental disputes.

Effective from 1 January 2000, the federal legislator introduced their new section 15a EGZPO (Introductory Law to the German Rules of Civil Procedure), which authorised the German federal states to establish conciliation for possible cases with a monetary value of up to €750 and certain types of minor disputes (eg, disputes between neighbours). In addition, the federal legislator amended a provision in the Code of Civil Procedure by providing for court referrals to ADR with the consent of the parties (section 278, paragraph 6 ZPO).

Further, the Ministry of Justice in Lower Saxony initiated a pilot programme to promote voluntary mediation based on this provision in several courts. In the context of this programme, judges referred cases mainly to judge-mediators who were not assigned to the particular case. The project started in January 2003 and was extremely successful. The success rate of this kind of court-annexed mediation was 79 per cent.

The German Bar Association in the meantime established a committee on ADR, as well as a section for mediation with several hundred members. In September 2008, the Annual National Conference of Lawyers, which is an important lobby for all legislative initiatives, dealt with mediation as a special topic.

Today, there is a significant body of German literature on mediation and the subject can frequently be found on the agenda of conferences and congresses in all business areas and branches. Meanwhile, thousands of lawyers and other professionals have been trained in mediation and offer their services as mediators. The Mediation Code, effective from 26 July 2012, is another milestone in the development of mediation in Germany.

Recently, the Federal Ministry of Justice enacted the Statutory Instrument on the Initial and Further Training for Certified Mediators of 21 August 2016. It introduces a two-tier system of certified and non-certified mediators.

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In Germany, mediation can be applied in all cases where a settlement is legally possible. Although mediation is traditionally applied in family disputes, it is increasingly used for commercial disputes and disputes related to environmental matters as well as in the public sector. Mediation is also applied in the area of intellectual property (eg, trademark or copyright licence cases) but cannot be applied for the granting of patents. Further, mediation is increasingly chosen for resolving workplace disputes (eg, disputes between employer and employees or between employer and works council).

Mediation cannot be applied in criminal cases, apart from cases of misdemeanour. For such cases, ‘victim-offender mediation’ can be ordered by the prosecutor or the court, given the consent of the victim.

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According to section 1, paragraph 1 of the Mediation Code, the mediation proceeding must be structured. No further legal requirements are included in the Mediation Code or in the Civil Procedure Code. Nevertheless, mediation proceedings follow a logical structure as follows:

• opening statement;
• fact-finding and topics relevant for solutions;
• moving from the parties’ positions to a discussion of their interests;
• collecting ideas for solutions and evaluating these ideas; and
• drawing up a final settlement agreement.

Whether parties must prepare for mediation depends on the needs of the mediator and on the case in dispute (complex or straightforward). There is no explicit legal requirement for the parties to prepare for the mediation proceeding.

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In commercial cases prior meetings are often arranged to discuss organisational issues of place, timing and schedule as well as the content of the mediator’s agreement or confidentiality issues. In workplace disputes, prior meetings with the employees involved in the conflict are arranged in order to clarify the details of the situation as well as the willingness of the employees to mediate. In family cases prior meetings are also permitted and used.

Depending on the mediator’s approach and the complexity of the case, prior statements of the parties and a summary of the parties’ positions are usual and permitted, especially in commercial cases. Prior statements are less common in family cases.

The most common structure of a mediation proceeding as practised in Germany is as follows:

• opening statement of the mediator; clarification of the assignment and expectations of the parties; explanation of the main characteristics of mediation and of the mediator’s role; establishment of ground rules in order to frame the boundaries of the mediation proceeding. According to section 2, paragraph 2 of the Mediation Code the assurance by the mediator is necessary that the parties participate voluntarily in the mediation proceeding and that the parties understand the characteristics and process of mediation;
• fact-finding and identification of the issues for which the parties need a solution;
• from positions to interests; clarifying common and contrary interests and objectives of the parties;
• identification of options (brainstorming); search for objective criteria; discussion, analysis and evaluation of the proposed solutions; and
• discussion and recording of the final settlement agreement; according to section 2, paragraph 6 of the Mediation Code, the mediator has to inform the parties that they can seek external advice (eg, a lawyer’s opinion) before the closing of the settlement agreement.

The typical time frame for a mediation proceeding in commercial matters is one to two days in disputes between companies. In commercial cases referring to workplace disputes the number of mediation sessions is regularly higher and includes several meetings with the parties in private sessions. The same applies in family or environmental cases.

In respect of international mediation proceedings, intercultural and language matters are considered regularly. Such mediation proceedings are mainly conducted in English, often with intercultural co-mediators.

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Traditionally, a mix between facilitative and evaluative mediation is used, especially in commercial mediation proceedings.

In general, German mediators prefer joint sessions focusing on the interests and needs of the parties. However, private sessions (caucuses) are increasingly used in all areas of mediation.

The mediator is responsible for the structure and the procedure of the mediation. He or she works with the parties on three levels: process, facts and relationship. In commercial cases, German mediators are often willing - preferably in private sessions - to advise the parties, to undertake risk assessment or a ‘best alternative to a negotiated agreement’ analysis.

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Co-mediation and team mediation are used in certain cases. Co-mediation is used predominantly in family disputes, whereas in commercial cases it is more common for single mediators to be assigned. Team mediation has been reported for large environmental cases.

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In commercial cases party representatives, especially lawyers or tax advisers, are regularly included in mediation proceedings. Depending on the case in question, experts or witnesses can be called if all parties agree to it (section 2, paragraph 4 of the Mediation Code). According to this provision, lawyers are considered as third parties, therefore, the inclusion of lawyers also needs the prior approval of all parties.

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In the past few years, the public interest in conflict management and mediation has increased significantly. In May 2008 the ‘Round Table Mediation and Conflict Management of German Major Enterprises’ was established. SAP AG, E.ON Kernkraft GmbH, Audi AG, Bombardier Transportation GmbH, Deutsche Bahn AG, EnBW AG, Fraunhofer Gesellschaft and Siemens AG were founding partners. The Round Table is guided by the Institute for Conflict Management of the Viadrina European University regarding scientific research and evaluation. So far, regular quarterly meetings and conferences have been organised by the Round Table. Major topics were the optimisation of conflict analysis, choice of procedure and documentation of cases. Further concepts and the implementation of mediators as well as measurements for conflict management systems have also been discussed.

In addition, several studies exist that refer to ADR methods and conflict management systems (see PricewaterhouseCoopers (PwC) studies ‘Commercial Dispute Resolution’ 2005 and 2007, PwC study ‘Conflict Management - From the Elements to the System’ 2011, PwC study ‘Conflict Management as an Instrument of Value-Oriented Management’ 2013; see www.pwc.com and KPMG study ‘Cost of Conflicts - The Costs of Friction Loss in Industrial Enterprises’ 2009; see www.kpmg.de).

Insurance companies dealing with legal expenses not only recommend mediation for all suitable cases, but also offer mediators and mediation services (eg, shuttle mediation on the phone).

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Mediation clauses are increasingly included in commercial contracts, mainly in the form of multi-tiered clauses. If a mediation clause is included in a contract, the attempt to find a settlement in mediation has been considered as mandatory in few court cases, for example, the Federal Constitutional Court decided in 1977 as well as in 1983 and 1998 that the attempt to settle a case is inadmissible if conciliation is agreed in the Articles of Association of a company or in a contract. In a decision of 2008, the Federal Constitutional Court considered a conciliation clause as a precondition to litigation. On the other hand, the Federal Labour Court rendered a decision in 1999 regarding an agreement to call an ecclesiastic conciliation committee, which - according to the view of the judges - does not exclude the recourse to litigation. Finally, the District Court of Heilbronn referred in 2010 to a mediation clause and concluded that such clause cannot be interpreted as a preliminary waiver of action in state courts because mediation can be terminated by the parties at any time. However, the decision of the District Court Heilbronn was discussed in the legal literature and considered as fundamentally wrong.

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According to the Mediation Code, no formal requirements exist in respect of the agreements between mediator and the parties or between the parties themselves. The mediator and the parties are, therefore, completely free to agree on the content but also regarding the form of the mediation agreement. Such agreements are commonly in writing and include provisions referring to the rights and duties of the mediator as well as referring to the rights and duties of the parties (trilateral contract).

Common provisions for such trilateral contracts between the mediator and the parties are, inter alia, as follows:

• preamble with a short description of the dispute;
• assignment of the mediator and the mediator’s duty to conduct the mediation in person;
• description of the main characteristics of the mediation proceeding: decision-making power remains with the parties, mediator does not act as a decision-maker, amicable solution as the goal of the mediation proceeding, etc;
• assurance of the mediator’s neutrality and impartiality, also according to section 1, paragraph 2; section 2, paragraph 3; and section 3 of the Mediation Code;
• confidentiality agreement, especially linked to parties and referring to section 4 of the Mediation Code;
• assurance of the voluntary nature of the parties’ participation; also according to section 2, paragraph 2 of the Mediation Code;
• right of the mediator and the parties to terminate the mediation proceeding with immediate effect, also considering section 2, paragraph 5 of the Mediation Code;
• right of the mediator to call for caucus and correspondent approval by the parties according to section 2, paragraph 3 of the Mediation Code;
• provisions referring to time, place and structure of the mediation proceeding;
• if court or arbitration proceedings are already commenced: agreement on the stay of such proceedings for the duration of the mediation;
• agreement on the prolongation of legal or contractual deadlines or limitation periods, if legally allowed;
• fee of the mediator and costs of the mediation proceeding; and
• joint and several liability of the parties for costs and expenses related to the mediation proceeding.

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The mediator’s fees are not regulated by law and are, therefore, free for negotiation. Only in cases of administered mediation do some mediation organisations determine a fee scale. In commercial cases the mediator’s fees range from €150 to €450 per hour plus VAT, depending on the expertise of the mediator and on the volume of the case in dispute. In family cases, the hourly fees are lower. In workplace disputes, daily rates are also common. Often, a flat fee is agreed for the preparation and the follow-up work.

The parties usually split the mediator’s fees and agree on joint and several liability.

The administration fees of mediation organisations are as follows:

German Institution of Arbitration (DIS)

• Procedural fee amounts to €250;
• the fee for nomination of a mediator by the DIS amounts to €250; and
• fees of a mediator amount to €300 per hour, unless agreed otherwise.

All fees are subject to VAT.

EUCON

There is no legal aid or other financial support by the state for mediation proceedings if parties cannot afford to pay the mediator. However, German courts are willing to include the costs for mediation proceedings into the general assessment of costs if the mediation has been conducted as court-annexed mediation.

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At present, no specific regulation for the professional title ‘mediator’ exists. However, as mentioned above, the Federal Ministry of Justice enacted the Statutory Instrument on the Initial and Further Training for Certified Mediators of 21 August 2016 (the Statutory Instrument), which stipulates requirements for qualification as a ‘certified mediator’. Still, even in regard to the certified mediator, there is no regulatory body that issues a certification. It is the sole duty of the mediator to ensure that he or she fulfils the requirements to carry this title. Competitors could sue for unfair competition if the requirements are not met.

There are no regulations or limitations regarding the basic profession of a mediator, nor are there regulations regarding having a certain university degree level. In respect of immigration or tax issues or regarding the work of foreign mediators, no special regulations exist. Rather, the general regulations of immigration or tax law apply.

Referring to the rights and duties of a mediator, the Mediation Code provides some regulations that have been described above (see especially questions 2, 3, 8 and 15).

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According to section 5, paragraph 1 of the Mediation Code, mediators have to ensure their own adequate training and continued education. Mediators also have to ensure that they are sufficiently skilled in theory and in practice to guide the parties in a competent manner through the mediation proceeding.

An adequate training should especially convey the following elements:

• the basics of mediation as well as of the procedure and the frame conditions;
• negotiation and communication techniques;
• conflict competence;
• legal aspects of mediation and the role of law in mediation; and
• practical exercises, role play and supervision.

In regard to the ‘certified mediator’, section 2, paragraph 1 of the Statutory Instrument stipulates that a person must only carry the title of certified mediator after completing training for certified mediators. This includes a minimum of 120 hours’ initial training. Further, the certified mediator must conduct a mediation or co-mediation during the training or up to one year after the training, followed by individual supervision. Within two years of finishing the initial training, the certified mediator must partake in four more individual supervisions following a mediation.

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See question 24. No credit point system for the continued education of mediators exists at present. The ‘certified mediator’ must partake in professional education courses, which must cover 40 hours of training during a four-year period. Suitable courses must match a minimum quality standard.

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Following on from questions 23 and 24, it can also be said that it is completely open at the moment as to which organisation (private or official) will be responsible in the future for the certification of mediators. A kind of accreditation system that refers to training organisations is intended.

In the future, a two-tier system of certified mediators and non-certified mediators will exist (see sections 5 and 6 of the Mediation Code). It can be assumed that the certified mediators will be better positioned in the market and will be considered as the better qualified and more experienced mediators. This will be supported by the requirement that certified mediators will be forced to provide evidence regarding practical experience and mediation cases.

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Regarding the duties of a mediator, the Mediation Code provides some regulations that have been described in questions 2, 3, 8 and 15.

In the event of the violation of such duties the mediator could be liable for damages according to the rules of the Civil Code or, very rarely, accused of criminal behaviour according to the Criminal Code. There are no special civil or criminal provisions, sanctions or disciplinary measures for mediators in cases of misconduct, poor performance, etc.

Most German insurance companies offer professional indemnity insurance for mediators, although it is not obligatory.

According to section 2, paragraph 5 of the Mediation Code, the parties can end the mediation proceeding in cases of misconduct or poor performance of the mediator. In such cases, the parties could also refuse the payment of the mediator according to the general rules of the Civil Code and the relevant rules of contract law.

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Section 2, paragraph 1 of the Mediation Code literally says: ‘The parties choose the mediator.’ This is also the general way to appoint a mediator in Germany. Courts can only propose mediation and are very hesitant to propose mediators because no official lists of mediators exist.

If the parties agree to an administered mediation, the corresponding mediation organisation (eg, DIS or EUCON) can appoint mediators according to their rules and regulations (see, for example, section 4 of the DIS Mediation Rules (the English version can be found at: www.dis-arb.de/en/16/rules/dis-mediation-rules-id31) and section 3 of the EUCON Rules of Procedure (the English version can be found at www.eucon-institut.de/wp-content/downloads/pdf/EUCON_Mediation_1_Verfahrensordnung_English.pdf.

The mediator has to undertake a conflict check and must inform the parties about a possible conflict as follows:

• section 3.1 of the Mediation Code: the mediator has to reveal all circumstances that could influence his or her neutrality and impartiality;
• section 3.2 of the Mediation Code: if a person has already advised a party, he or she cannot act as a mediator in the same matter. Such case cannot be subject to approval by the parties; and
• section 3.3 of the Mediation Code: the mediator has to inform the parties if one of his or her colleagues has advised a party in the same matter. In such case and after such information, the parties can agree on the service of the mediator according to section 3.4 of the Mediation Code.

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Because mediation is considered as strictly confidential, there are only a few publications describing mediation cases.

Some well-known mediation cases that have been published are as follows:

• Mediation Airport Frankfurt am Main related to the extension of another landing runway in 1998 (www.forum-flughafen-region.de/fileadmin/files/Archiv/Archiv_Mediation-Dokumentation/Dokumentation_Mediation_Frankfurt_Leitfaden_2000.pdf);
• Mediation Stuttgart 21 related to the reconstruction of the railway station in Stuttgart in 2010 (www.sueddeutsche.de/politik/stuttgart-mediation-ist-kein-zauberwerk-1.1010315);
• Mediation in the trade dispute Deutsche Bahn (German Railways) v Trade Union GDL in 2007 (www.manager-magazin.de/unternehmen/artikel/0,2828,499541,00.html);
• the German Federal Constitutional Court decided on 14 February 2007 (1 BvR 1351/01) regarding the question of whether it is in accordance with the German Constitution to require conciliation/mediation as a first step before an action in court is admissible and stated literally: ‘to resolve a disputable state of a problem by an amicable solution takes […] principle preference over a judicial decision’; and the German Federal Court of Justice decided on 14 January 2016 (I ZR 98/15) that a legal expenses insurance provider may contractually stipulate that the insured party must attempt mediation before covering any further legal expenses.

* The information contained in this chapter is accurate as of October 2016.

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