German statutory law doesn’t specifically define conciliation & ADR. It’s understood that ADR is an all-embracive term describing all non-litigation methods of settling disputes through mediation in the state of Germany. Conciliation, in its turn, is defined as a method of settling disputes whereby mediators facilitate the resolution of disputes by mediation in the state of Germany by suggesting various settlement variants.
Dispute settlement in Germany (particularly resolving commercial disputes) involves making use of a combination of evaluative & mediation methods. Normally, mediators hold meetings with their clients during which they try to understand their needs & interests. They’re responsible for working out a structure & adhering to the mediation procedure. While settling a commercial dispute in Germany, mediators tend to hold closed meetings, during which they conduct a risk evaluation & advise parties.
Germany: Resolving Disputes Through Mediation
If permitted by law, mediation may be used in cases calling for the resolution of disputes in the state of Germany. Cases involving criminal offences, except for cases of misconduct, can’t be resolved by way of mediation. In cases like these, prosecutors may issue orders requiring offenders & victims to settle their differences by mediation. Resorting to mediation is purely voluntary; hence, instead of ordering mediation, courts in Germany may only recommend it. Due to an extremely confidential nature of mediation, information on the total number of medication cases is unavailable.
Even though mediation is used mostly for resolving family disputes in the state of Germany, it’s also a preferred way of settling commercial & environmental disputes in Germany. It’s also resorted to for resolving IP disputes in the state of Germany (including disputes in the public sector). Apart from this, mediation is also a popular method of settling disputes between German employers & employees.
Selecting a Mediator
German legislation requires mediators to be sufficiently experienced to ensure competent guidance of parties throughout the entire process of mediation.
The mediation process can be terminated & a mediator’s fee withheld if a mediator conducts themselves improperly or unduly performs their duties. There’s no formal requirements for concluding a mediation agreement in the state of Germany; hence, parties & mediators are at liberty to select its form & content. Agreements pertaining to commercial mediation are normally concluded in written form & contain information concerning obligations & rights of mediators.
Mediation may only be suggested by courts; however, they’re very reluctant to do so due to non-availability of mediators lists. Should parties choose to resolve a dispute through mediation in the state of Germany, a mediation organization can appoint mediators for them.
Procedure for amicable resolution of disputes in the state of Germany should be structured like this:
- introductory speech;
- discussion of decision-related topics;
- discussion of parties’ positions & interests;
- discussion of solutions;
- signing a settlement agreement in Germany.
Under German legislation, mediators are required to maintain strict confidentiality regarding the mediation procedure. However, this requirement doesn’t apply to parties, nor to experts or other individuals taking part in mediation. Disclosing sensitive information is governed by confidentiality agreements or rules for tax advisors or solicitors.
Unless otherwise indicated, settlement agreements are binding on both parties. They’re governed by statutory provisions of German contract law; hence, their content defines whether they must be concluded in written form or notarized.
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