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 MediationsG provides different regulations for qualification as ’mediator’. According to section 5, paragraph 1 of the MediationsG, mediators have to ensure their initial 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. Adequate training must 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.
No credit points system for the continued education of mediators exists at present.
In contrast, the special qualification of certified mediators exists according to sections 5 and 6 of the MediationsG. Certified mediators are subject to continuing professional development requirements, which include mandatory training, a minimum number of mediation proceedings conducted as a mediator or co-mediator that must be supervised after the initial training.
The Department of Justice enacted a legal ordinance, which stipulates that somebody must only describe oneself as a ccertified mediator, if a training programme comprising of at least 120 hours and specific training content is completed. Further, the legal ordinance sets forth that a certified mediator has to conduct at least five mediation proceedings within two years of the training, followed by supervision.
There are no regulations or limitations regarding the basic profession of mediators, nor are there regulations regarding a certain level of education (eg, a university degree).Liability
What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?
With respect to the duties of a mediator, the MediationsG provides some regulations that have already been described in earlier questions. In the event of the violation of such duties, the mediator could be liable for damages according to the rules of the German Civil Code (BGB) or, very rarely, accused for criminal behaviour according to the German 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. Therefore, no minimum level of insurance is required for German mediators.
According to section 2, paragraph 5 of the MediationsG, 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 BGB and the relevant rules of contract law.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?
According to the MediationsG, 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. In commercial mediation, 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 trilateral contracts between the mediator and the parties are, inter alia:
- a preamble with a short description of the dispute;
- assignment of the mediator and the mediator’s duty to conduct the mediation in person;
- a description of the main characteristics of the mediation proceeding: decision-making power remains with the parties, the mediator does not act as a decisionmaker, 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 MediationsG;
- a confidentiality agreement, especially linked to parties and referring to section 4 of the MediationsG;
- assurance of the voluntary nature of the parties’ participation; also according to section 2, paragraph 2 of the MediationsG;
- the right of the mediator and the parties to terminate the mediation proceeding with immediate effect, also considering section 2, paragraph 5 of the MediationsG;
- the right of the mediator to call for caucus and correspondent approval by the parties according to section 2, paragraph 3 of the MediationsG;
- provisions referring to the 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;
- an agreement on the prolongation of legal or contractual deadlines or limitation periods, if legally allowed;
- a fee for 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.
How are mediators appointed?
Section 2, paragraph 1 of the MediationsG stipulates literally: ‘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, 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).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?
The mediator has to undertake a conflict check and must inform the parties about a possible conflict as follows:
- section 3.1 of the MediationsG: the mediator has to reveal all circumstances that could influence his or her neutrality and impartiality;
- section 3.2 of the MediationsG: if a person has already advised a party, he or she cannot act as a mediator in the same matter. Such a case cannot be subject to approval by the parties; and
- section 3.3 of the MediationsG: the mediator has to inform the parties if one of his or her colleagues has advised a party in the same matter. In such a case and after such information, the parties can agree on the service of the mediator according to section 3.4 of the MediationsG.
As mentioned above, in the event of the violation of such duties the mediator could be liable for damages according to the rules of the BGB.Fees
Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?
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 €500 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 liabilities.
The administration fees of mediation organisations are as follows.German Institution of Arbitration (DIS)
- Procedural fee amounts to €250;
- fee for nomination of a mediator by the DIS amounts to €250; and
- fee for a mediator amounts to €300 per hour, unless agreed otherwise.
All fees are subject to VAT.EUCON
Value of the dispute
Hourly rate for the mediator
up to €100,000
up to €1 million
up to €10 million
more than €10 million
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 in the general assessment of costs if the mediation has been conducted as a court-annexed mediation.