Despite the many attempts to breathe life into mediation in the past, the role it has played in Germany has been marginal. Today, however, it is once again the focus of attention on the market. The essential underlying ideas have long been well known, at least since the 1879 Code of Civil Procedure (Zivilprozessordnung, ‘ZPO’) which contained provision for an “attempt at reconciliation”. As the parties were under no obligation to put in an appearance, such attempts all too often proved fruitless. Around 1920 ‘mandatory conciliation proceedings’ were introduced, although as this applied only in minor cases, this approach was also doomed to fail. In 1950, judges throughout Germany were given the duty of working towards an amicable settlement. Subsequent revisions of the ZPO have also attempted to promote conciliation proceedings.

None of these legislative efforts have resulted in a breakthrough for mediation. With the constant regularity of a pendulum, mediation swings into the focus of public attention and is lauded as the optimal tool for dispute resolution – only to swing back into oblivion a short time later.

Maybe this time – current legislation

Things will be different this time. At least that is what German lawmakers hope will be achieved by the Mediation Act (Mediationsgesetz), passed last July to transpose an EU Directive into national law. This is the first time mediation has been regulated in separate legislation.

Oct-Dec 2013 issue

White & Case LLP