Implementation of the European Mediation Directive in Germany

In July 2010, the German Federal Ministry of Justice published a draft bill which, if passed into law, will deal with the implementation of the European Mediation Directive (the Directive). The draft bill implements most of the key provisions of the Mediation Directive and in some cases exceeds its requirements, in particular in its application to domestic as well as cross-border disputes, and the enforceability of settlement agreements resulting from mediation.Article 6 of the Mediation Directive provides that Member States must ensure that parties can request that the content of a written settlement agreement resulting from a mediation be made enforceable. However, the Directive also provides that Member States need not make the settlement agreement enforceable if the law of the Member State does not provide for its enforceability. The draft bill goes further than this, providing that such agreements can be declared enforceable even if they contain parts without enforceable content under German law. In addition, it allows the courts to make changes to the content of a settlement agreement in consultation with the parties in order to ensure that the agreement is specific enough to be enforced.

Whilst the draft bill contains no provision dealing with the suspension of limitation periods whilst mediation is ongoing, the German Civil Code already provides for this in wider terms than is required under the Directive (Section 203 of the German Civil Code provides for a suspension where parties are "negotiating" about the claim – a term to be interpreted broadly). The draft bill also determines duties to disclose certain activities of mediators in order to safeguard their independence and impartiality, and empowers courts to recommend mediation proceedings to parties to litigation.