At the present time, labour law jurisdiction already strives even more than other jurisdictions to resolve disputes by trying to procure a settlement between the parties. In the course of the "draft bill to promote mediation and other extrajudicial conflict-resolution proceedings" now unanimously adopted by all fractions of the German Bundestag at its session on 30 November 2011, this will be reinforced in future by the possibility of mediation. Since the new statutory provisions are expected to have a direct effect upon judicial proceedings with the entry into force of the act, may we explain several key factors here:
- Mediation is practised in three forms: internal court mediation, mediation closely related to court proceedings and extrajudicial mediation. Internal court mediation has also already been practised as a rule in labour law proceedings.
- In the newly created Mediation Act the bases of mediation will be regulated; in particular the role of the mediator will be clarified in terms of the minimum requirements (cf. Draft Mediation Bill [Mediationsgesetz-Entwurf, MediationsG-E]).
- To be specific, in future the labour court can suggest during labour court proceedings that extrajudicial mediation or mediation closely related to the court proceedings be conducted. Should the parties decide in favour hereof, the proceedings will be suspended for the duration of the mediation; after three months the court is obliged to recommence the proceedings unless both parties state that they envisage the conclusion of a settlement (sec. 54a para. 1 and para. 2 German Labour Courts Act, new version [Arbeitsgerichtsgesetz neue Fassung, ArbGG nF]).
- In future, mediation in labour court proceedings shall not only encompass individual proceedings, but also court order proceedings (e.g. between employer and works council) (Sec. 80 para. 2 sentence 1 ArbGG nF).
The practical effects can be described in such a way that, in
case of expected future court disputes, one will always have to
consider how a court mediation proposal should be handled. On the
one hand such mediation can procure the final resolution of the
conflict, on the other side, however, it requires far greater time
and expense even if it fails. Incidentally, the draft bill does not
address the question of the mediator's remuneration; more often
than not the employer will be expected to assume the costs. In
court order proceedings which end in a mediation, it is evident
that the costs are certainly to be borne by the employer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.