Since 2005, we have in Germany the possibility to enter into mediation in pending court proceedings. This is a new possibility offered by some–not all–regional courts (Landgerichte) in Germany.
In Germany, regional courts (Landgerichte), generally speaking, have jurisdiction in all matters in which the amount in dispute is above EUR 5,000.00.
In connection with a research study carried out by a German University, some German regional courts (Landgerichte) have decided to offer parties in pending disputes the possibility to resolve the dispute in a court mediation.
How Does the Court Mediation Work?
The presiding judge in the pending matter can, at any point in time of the proceedings, ask the parties whether the parties would like to try to settle the dispute in court mediation.
If the parties to the dispute agree on this court proposal, the file is passed on to a mediation judge. These are presiding judges who have passed mediation training and sit not only as judges, but also as mediators in court.
The mediation judge is free as regards the structuring of the mediation itself. However, in all court mediations in which I have represented parties to the disputes, the court mediation worked as follows:
In a first step, the mediation judge invites the parties to describe their view of the pending dispute and their position in position papers which should not go beyond ten pages.
In the next step, the mediation judge agrees with the parties on a mediation hearing. This mediation hearing usually takes place at court--not in a usual courtroom but in a specially equipped mediation room. When I entered for the first time such a mediation room at court, I was astonished what courts have to offer: instead of the bench behind which a judge conducts the proceedings, I found a round conference table. Cookies, coffee, tea and water are offered, and a flipchart can be found in one of the mediation room’s corners.
The mediation hearing starts with a summary of the dispute by the mediation judge. The mediation judge then gives the parties the possibility to express their views. Thereby, the parties are free to express the views either orally or by use of other means, like PowerPoint presentations or flipchart.
After this fact finding session, the mediator judge usually tries to discuss with the parties a possible solution of the dispute. Sooner or later, the mediator judge will give the parties also an impression how the mediator judge would decide the dispute if he were the presiding judge.
If the parties reach an agreement, the mediator judge then may set up a court settlement agreement. This court settlement agreement is, under German procedural rules, an enforceable title on the basis of which claims provided for in this court settlement agreement can be legally enforced. Since the mediator judge is, however, not the presiding judge, it is–as of today–unclear whether such court settlement may be challenged because it has not been reached in the presence of and set up by the presiding judge.
Advantages of Court Mediation
The advantages of the court mediation are obvious. The mediator is a trained judge who may not only assist the parties in finding a possible solution but may give the parties a feeling how the mediator judge would decide the dispute. Further, court mediation is not submitted to strict procedural rules. The parties are completely free to express themselves and their views of the dispute. Finally, it is cost-free.
Place of Court Mediation
The court mediation usually takes place at the court seized. However, I once convinced a mediator judge that the first mediation hearing should take place at the premises of our client. The second mediation hearing then took place in our law firm.
Disadvantages of Court Mediation
One disadvantage is that the parties do not know the mediator judge before the file is passed onto him. There is no possibility to ensure that the matter is passed to a specific judge.
Further, unlike other mediators, mediator judges are not concerned with confidentiality.
Confidentiality
One thing, of course, has to be ensured–which is sometimes overseen by mediator judges: the court mediation has to take place under the agreement of strict confidentiality. By confidentiality, all documents produced in the court mediation and all persons attending the court mediation should be covered as regards the production of documents and the examination of witnesses should the court mediation fail.
Shuttle Diplomacy
What I have, so far, not experienced in court mediation is the so-called shuttle diplomacy: in shuttle diplomacy, the mediator has the right to discuss the matter at hand with one party in the absence of the other. Shuttle diplomacy, therefore, means that the mediator shuttles from one party to the other to identify the specific positions of the parties to the dispute and to thereby elaborate a possible solution of the dispute.
In a mediation in an international dispute, I once had the experience that an English mediator made extensive use of this shuttle diplomacy. A settlement agreement after 14 hours of negotiation was finally reached when the mediator asked the unwilling parties to entitle him to disclose whether the difference between both parties’ positions was more than EUR 1 mill. When the parties, by this technique, were made aware that this was not the case the wall, which blocked a solution until this point in time, fell down.
The only disadvantage to this successful mediation for German counsel was that it took place during the last group game of the German national soccer team in the course of the world championships in 2006. Apart from that–it worked.
All court mediations I attended have been successful. The reason for that is quite obvious: on the one hand, the parties have an experienced judge as mediator. On the other hand, all these proceedings settled in court mediation, were rather complex disputes and the parties were aware that, unless a settlement is reached, this dispute would take them into very long, time-consuming and cost-intensive legal proceedings.
