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Resolving disputes

Mediation

A third person guides the conversation and decides nothing. That is precisely why the result tends to hold afterwards

Key points at a glance

  • Mediation is a confidential, structured procedure in which the parties look for an agreement themselves.
  • The mediator is neutral and has no power to decide, as the German Mediation Act states.
  • Everyone involved can end the mediation at any time.
  • Unlike an arbitral award, a mediation binds only what the parties agree themselves.

In numbers

5

phases in the procedure

from setting the terms to the agreement

0

decision-making power

the mediator has none, by law

2012

Mediation Act in force

since 26 July

How to get to a mediationAfter the German Mediation Act

  1. Check willingness

    First the question whether both sides are willing in principle. Mediation is voluntary, nobody can be obliged to agree.

  2. Find a mediator

    The term mediator is not protected, the addition “certified” is. Professional associations, courts and consumer bodies can refer you.

  3. Agree the fee

    There are no fixed fees. Best agree the fee and how the costs are shared in writing before the first session.

  4. Sessions

    Several meetings over weeks, confidential. Each side can end the mediation at any time without giving a reason.

  5. Check the agreement

    The settlement can be recorded in a final agreement. Anyone who comes without their own adviser can have it reviewed externally.

Mediation, conciliation and arbitration comparedSources: German Mediation Act, Code of Civil Procedure, Bavarian consumer portal

Mediation

Who decides
the parties themselves
Role of the third person
guides the procedure, without power to decide
How binding
only what the parties agree
Basis
Mediation Act of 2012

Conciliation

Who decides
the parties, based on a recommendation
Role of the third person
hears everyone and makes a recommendation
How binding
consumers can still go to court afterwards
Basis
rules of the body, for consumers the VSBG

Arbitration

Who decides
the arbitral tribunal
Role of the third person
issues an arbitral award
How binding
effect of a final court judgment
Basis
arbitration agreement under section 1029 ZPO
130 hours of training to become a certified mediatorSource: German ordinance on the training of certified mediators (ZMediatAusbV), annex to section 2
  • Introduction and basics18 hours
  • Procedure and framework40 hours
  • Negotiation techniques12 hours
  • Conducting conversations18 hours
  • Conflict competence12 hours
  • Law of mediation6 hours
  • Law within mediation12 hours
  • Personal competence and stance12 hours
Origin
Regulated in Germany by the Mediation Act of 26 July 2012
Where it is used
Family, workplace, neighbourhood, business, environmental and building projects
What it takes
Several sessions over weeks, voluntary and abandonable at any time
Third party
An impartial third person with no power to decide
Two young women stand facing each other, a further person beside each of them, an audience seated in front of tall windows behind
An exercise at a conflict resolution workshop: two sides face each other while two more people accompany the conversation.Photo by the Center for the Study of Europe, Boston University, 2016, Wikimedia Commons, CC BY-SA 2.0

What is mediation?

The German Mediation Act defines mediation as a confidential and structured procedure in which the parties, with the help of one or more mediators, voluntarily and on their own responsibility seek an amicable settlement of their conflict.

The mediator is independent and neutral and has no power to decide. They guide the procedure, make sure both sides are heard, and propose no solution they could then impose.

That sets mediation apart from every procedure in which somebody decides: from a court, from arbitration, and from a manager settling the matter. The parties stay responsible for the result, which is both the strength of the procedure and its precondition.

How does a mediation run?

In five phases: setting the terms, collecting the topics, clarifying the interests behind them, looking for solutions, putting the agreement in writing. The order is not decoration but the core of the method.

The third phase carries the procedure. As long as two sides speak in positions, there is usually a choice between two outcomes. Once the interests behind them are on the table, solutions appear that were not visible before.

A mediation usually runs over several sessions across weeks. It is voluntary, either side can end it at any time, and what is said stays confidential. Those three conditions are why things are said in a mediation that nobody would say in court.

When does mediation fit?

When the parties will go on dealing with each other. Separated parents, neighbours, colleagues, business partners, club boards: a judgment ends the case, not the relationship, and a result both sides carried holds longer in daily life.

It also fits where the matter itself cannot be fully decided in court. Courts decide questions of law; a large part of what people argue about is not a question of law.

And it fits where confidentiality has value. A public procedure produces positions that are hard to clear away afterwards, because somebody heard them.

Where are the limits of mediation?

The most important limit is an imbalance of power. Mediation assumes both sides can state their interests openly. Where one side is dependent, intimidated or affected by violence that is not the case, and a result that merely looks voluntary would be none.

The second limit is voluntariness. Whoever does not want to, need not, and nobody can be obliged to agree. The procedure can end without a result, and then time has passed without anything being decided.

The third limit concerns questions of principle. Where a point of law has to be settled because other cases depend on it, a judgment is the right instrument. Mediation settles one case; it creates no binding interpretation.

How do you start with mediation?

With the question whether both sides are open to it in principle. Proposing mediation is itself a signal, and it is more likely to be accepted when it does not have to be read as a concession.

Then comes finding a suitable person. In Germany the title of mediator is not protected, while certified mediator is tied to training under a regulation. Professional associations keep lists, and courts and consumer bodies also refer people.

For smaller matters there are lower thresholds: municipal arbitration boards, conflict offices of associations, trained peer mediators in schools. Not every dispute needs a formal procedure, but every one benefits from an orderly sequence.

The core

Whoever found the solution themselves does not have to enforce it against themselves. That is the whole difference from a judgment.

Sources

All methods

The steps

  1. Set the termsBoth sides settle with the mediator what the dispute is about, how the procedure runs and what rules apply. Voluntariness and confidentiality are agreed here, not assumed later.
  2. Collect the topicsEach side names what belongs to the matter. Everything is collected first and without judgement, so that nobody can say afterwards that their concern was never raised.
  3. Clarify interestsBehind every position comes the question of what it is actually about. This is the step where the task often changes, because interests exclude each other less often than demands.
  4. Look for solutionsOnly now are options collected, first without evaluation and then examined. The order is deliberate: evaluating too early produces fewer options.
  5. AgreementThe result is put in writing, concretely enough for implementation to be checkable. Who does what by when, and what happens if it does not happen.

More in this series

Frequently asked questions about mediation

What does a mediation cost, and who pays for it?

The German Mediation Act sets no fixed fees. The parties agree the fee with the mediator, and they also decide who pays which share. It is best to put this in writing before the first session. The Act provides for public funding only within research projects that the federal government and the states may agree, for people who cannot pay the costs or only in instalments. There is therefore no general right to have the costs covered.

What is the difference between mediation, conciliation and arbitration?

The difference lies in who decides in the end. In mediation the parties reach an agreement themselves; the mediator guides the conversation and decides nothing. In conciliation a conciliation body hears all sides and makes a recommendation the parties can accept. In arbitration an arbitral tribunal decides, which the parties agreed on beforehand in an arbitration agreement. Under section 1055 of the German Code of Civil Procedure its award has the effect of a final court judgment between the parties.

Is an agreement reached in mediation binding?

It is as binding as the parties make it. With their consent the agreement can be recorded in a final settlement. The mediator has to make sure both sides understand its content and has to tell parties without their own advisers that they can have the agreement checked externally. If it is to be enforceable, there are separate routes, for example a settlement between lawyers under section 796a of the Code of Civil Procedure, when both sides are represented and submit to immediate enforcement.

Who may call themselves a certified mediator?

The German Mediation Act does not regulate the title mediator, but it does regulate the addition “certified”. Only someone who has completed training under the ordinance on the training of certified mediators may use it. This includes a course of at least 130 hours of attendance, of which up to 40% may take place virtually, and five supervised mediations within three years of the course. Only then does the training institution issue the certificate. Further training remains mandatory afterwards.

What is the aim of a mediation?

The Act describes it in one sentence: the parties voluntarily and on their own responsibility seek an amicable settlement of their conflict. The German Federal Agency for Civic Education adds what matters in the procedure: clarifying the interests and needs behind entrenched positions and working out solutions independently. Because the mediator does not propose solutions of their own, the people involved own the result. The aim is not a ruling on right and wrong but an arrangement both sides can live with.

Can a mediation be stopped?

Yes, at any time. Section 2 of the German Mediation Act allows the parties to end the mediation without giving reasons. The mediator can also end it, in particular when they no longer expect self-responsible communication or an agreement. Stopping does not rule out other routes, such as conciliation or court proceedings. What was discussed in the mediation stays protected, because under section 4 the mediator is bound to confidentiality.

From a procedure to a mission of your own

Every one of these methods was developed by people who had a dispute in front of them and wanted to handle it differently. The same stance is what it takes on a small scale: in a neighbourhood, a school, a club.

Find your peace mission