Mediators

Accreditation

Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?

The legal mediation landscape in Austria is rather inhomogeneous. There are essentially four ways in which mediations can be conducted:

  • with a mediator who is listed on the roster of mediators administered by the Austrian Ministry of Justice (enjoying the privileges granted under the Austrian Mediation Act, see question 18);
  • with a mediator who is not listed on the roster of mediators administered by the Austrian Ministry of Justice;
  • with a mediator in accordance with the provisions of the Austrian EU Mediation Act; and
  • with a professional who may not even be qualified as a mediator but who has the trust of the parties.

Mediators trained in accordance with the requirements set out in the Austrian Mediation Act can apply to be listed on the roster of mediators administered by the Austrian Ministry of Justice. It is not compulsory to be listed on the roster. However, non-listed mediators do not enjoy the benefits expressly granted under the Austrian Mediation Act (eg, automatic interruption of prescription periods, protection of confidentiality beyond the scope of the mediation).

To be listed on the roster of mediators administered by the Austrian Ministry of Justice, candidates must fulfil the following criteria:

  • submission of a written application;
  • minimum age of 28 years;
  • qualification as mediator;
  • extract from police records or disclosure;
  • professional liability insurance (minimum coverage: €400,000); and
  • information as to where the mediator will offer his or her services.

Candidates will be considered qualified if they:

  • have completed relevant training;
  • display knowledge and skills in mediation; and
  • have completed basic legal and psycho-social training.

Training is considered ‘relevant’ if completed with registered training institutions, including universities. The Austrian Ministry of Justice keeps a list of those training institutions. The content of the training is laid down in section 29 of the Austrian Mediation Act and in the respective By-Law. Any listing on the roster is limited to a period of five years. Listed mediators may apply for the extension of their listing for a period of a maximum of 10 additional years.

Liability

What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?

There are no specific rules that govern mediator liability. A mediator may, however, be held liable in accordance with the relevant provisions of Austrian civil law (eg, claims for damages) for any conduct that is not in accordance with best practice standards or recognised methods. Professional liability insurance is compulsory for all professionals listed on the roster of mediators administered by the Austrian Ministry of Justice. The minimum level of insurance required is €400,000.

Mediation agreements

Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?

Although there is no express legal requirement, it is indeed customary for the parties to enter into a written mediation agreement with their mediator. The main terms of the written mediation agreement would usually be the mediator’s and the parties’ mutual rights and obligations, the mediator’s fees, administrative aspects of the procedure (in particular, the place of the mediation, its prospective duration, the language to be used) and references to the basic principles governing the mediation process, in particular confidentiality, voluntariness and the without-prejudice nature of the negotiations.

Appointment

How are mediators appointed?

Mediators are usually appointed by the parties in dispute. If mediation is recommended or directed by a court, the parties are usually referred to experienced professionals directly by the sitting judge. If a commercial mediation is commenced under the auspices of the VIAC, the institution may, upon the parties’ request, assist in the process of selecting the neutral by providing lists of suitable candidates.

Conflicts of interest

Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?

There is no legal (mediation specific) rule that obliges mediators to disclose possible conflicts of interest. However, disclosure is regularly a necessity that flows from the requirement that mediators have to be independent and assist the parties in a neutral manner. Professionals listed on the roster of mediators administered by the Austrian Ministry of Justice must not act as mediator in any dispute in which they are or were involved as a party, a party representative, a third-party adviser or decision maker (section 16 of the Austrian Mediation Act).

Fees

Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?

As regards the field of commercial mediation, mediators’ fees are not regulated in Austria. Some mediators apply hourly rates, others charge daily rates or enter into lump sum fee arrangements. As mediators’ fees are freely negotiable, it is impossible to indicate a range that would be considered usual with regard to the Austrian market. The ‘Families and Youth’ division of the Austrian Federal Chancellery runs a programme for the promotion of the use of mediation in family disputes (divorce cases). For every mediation conducted (usually by a team of two mediators), the mediators’ fees are capped at €220 per hour with further deductibles depending on the joint net income of the parties and the number of children concerned. There is no overall cap on the costs of such government-aided mediation processes.