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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
April 2015 saw the reshaping of family-friendly leave with the birth of Shared Parental Leave (SPL). Can employers offer enhanced contractual pay to mothers/primary adopters but not to fathers/partners?
Eine zum 1. Oktober 2016 in Kraft tretende Gesetzesänderung kann einen erheblichen Einfluss auf die Standard-Arbeitsverträge vieler Unternehmen in Deutschland haben.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).