Mediation is an out-of-court dispute resolution process. In mediation, the parties agree on a mediator who will provide impartial support for the resolution of their conflict. Unlike other types of proceedings – e.g. conciliation or arbitration – there is no separate adjudicating body to make the decision. It is the parties alone who decide on the solution to their conflict. The mediators moderate the proceedings. Since 21 July 2012 (BGBl. I p. 1577), there has been a Mediation Act (MediationsG) in Germany. The GMAA Mediation Rules have been in place since 2014.
Mediation is carried out if the parties have agreed to it by contract, for example in the form of a mediation clause. Mediation can also take place "ad hoc", if the parties agree to it. When the parties have agreed on a mediator, they conclude a mediation agreement with him/her to regulate the course of the proceedings and the fees.
In principle, conflicts from all areas of business can be submitted to mediation. These include
– for example – company law disputes, complex disputes under ship management and pool contracts, conflicts in connection with any kind of continuing obligation or internal company conflicts. Furthermore, mediation is particularly useful when more than two parties are commercially involved in a conflict. In international commerce, cross-border conflicts are time-consuming and costly and they can damage the business interests of the parties. It is precisely here that mediation offers itself as an effective and sustainable instrument of dispute resolution.
This is difficult to predict, as it depends on the complexity of the conflict and the number of parties involved. In many cases, the mediation hearing itself lasts only a few hours, up to a day.
Yes. The mediators and the persons involved in the conduct of the mediation process, e.g. those assisting the mediators, are bound to secrecy, unless otherwise provided by law. This obligation relates to everything that has become known to them in the exercise of their activity.
If the parties have not agreed otherwise, the suspension of the running of time for time bar purposes in mediation proceedings is governed by the German Civil Code (BGB), provided that the dispute between the parties is subject to German law: if negotiations between the debtor and the creditor regarding the claim or the circumstances giving rise to the claim are pending, the running of time is suspended until one party refuses to continue the negotiations. § 7 of the GMAA Mediation Rules contains a clear rule on the suspension of the running of time for limitation purposes.
Yes, that is possible.
Mediation is a voluntary process. If one party declares the mediation to have failed, it is terminated. Each party then has the right to commence proceedings before a state court or - if an arbitration agreement exists - an arbitral tribunal.
Mediation offers a great opportunity: for a very small investment of money and time compared to court and arbitration proceedings, mediation enables the parties to reach solutions to the conflict quickly. If one considers the usual duration of court and arbitration proceedings, the relatively short time required to attempt mediation tends not to be an issue.
With the consent of the parties, an agreement reached may be documented in a final agreement. A final agreement is not enforceable. If the parties wish enforceability, they must convert the agreement into an enforceable document, e.g. a notarial deed or a lawyer's settlement.
Since the mediator does not decide the conflict, but only manages the process, there is usually no need for special industry knowledge. However, it helps the mediators to structure the conversation between the parties if they can quickly identify the underlying areas of conflict. Therefore, industry knowledge is not necessarily required, but useful.
The costs of the mediation process are not subject to a fixed tariff. Rather, the mediator's fee must be negotiated between the parties and the mediator and - if possible - agreed in advance. Most mediators work on the basis of an hourly rate or daily rate.
Studies show that 70 to 80 % of all mediation proceedings end successfully.
"Any disputes arising out for or in connection with this contract shall be submitted to mediation in accordance with the Mediation Rules of the German Maritime Arbitration Association."
"Any disputes arising out of or in connection with this contract shall be submitted to mediation in accordance with the Mediation Rules of the German Maritime Arbitration Association prior to the commencement of arbitration. Any disputes remaining after the end of the mediation proceedings shall be submitted to arbitration in accordance with the Rules of Arbitration of the German Maritime Arbitration Association."
1.If the parties have agreed that conflicts between them are to be decided according to the rules of the GMAA Mediation Rules, these Mediation Rules shall be applied in the version in force at the time of the initiation of the proceedings.
2.The parties may deviate from the provisions of these Rules of Mediation by mutual agreement. If a mediator has already been appointed, this can only be done in consultation with the mediator.
The party wishing to initiate mediation proceedings (claimant) shall send the other party (respondent) a request in text form (letter, fax or e-mail). The mediation proceedings shall commence upon receipt of the request by the respondent. The request must contain
- the names of the parties
- a description of the conflict and the claims arising therefrom, and
- indicate that the applicant wishes to conduct mediation proceedings.
1. The parties shall agree on the person of a mediator in a timely manner. If this does not succeed within two weeks, either party may ask the chairperson of the GMAA for a proposal or declare the mediation proceedings terminated vis-à-vis the other party.
2. If a requested proposal by the chairperson of the GMAA is not accepted by the parties within one week of its receipt by the respective party, either party may declare the mediation proceedings terminated vis-à-vis the other party.
3. As soon as the parties agree, they shall appoint the mediator with reference to these Mediation Rules. The mediator shall be deemed appointed upon receipt by the parties of his or her declaration of acceptance in text form. The declaration of acceptance may also consist in the conclusion of a supplementary agreement between the mediator and the parties, in particular on the conduct of the mediation proceedings. If the mediator does not declare acceptance within one week, the parties shall be free to agree on a new mediator in accordance with paragraph 1.
Either party may include further claims or counterclaims in the mediation proceedings to the extent that the other party agrees thereto or such claims are also subject to a mediation agreement concluded between the parties.
1.The mediation process is governed by the Mediation Act and the European Code of Conduct for Mediators, unless otherwise provided for in these Rules.
2.The mediator shall be independent, unbiased as to the result and equally committed to all parties. The mediator shall disclose all circumstances that could affect his/her independence and impartiality. If such circumstances exist, the mediator may only act if the parties agree to this in full knowledge of these circumstances.
3.The mediation proceedings shall be private. All parties and the mediator are obliged to maintain confidentiality about the content of the mediation proceedings. The information obtained in the mediation procedure is not allowed to be used in contentious proceedings and in particular the mediator is not allowed to be named as a witness.
4. Together with the parties, the mediator shall agree on the place and the course of the mediation proceedings.
5.The mediator shall work towards an expeditious conduct of the mediation proceedings. The mediator may ask the parties to present a summary of their respective positions. The parties shall endeavour to contribute in good faith to the success of the mediation process.
6.A representative authorised to conclude settlements shall attend each mediation hearing on behalf of each party.
7. If the mediator considers that individual preliminary substantive discussions are appropriate, he or she shall notify the parties in advance. The mediation sessions shall take place in the presence of all parties. The mediator may, by mutual agreement, hold separate discussions with the parties. All information disclosed to the mediator in individual discussions shall be treated confidentially and may only be disclosed to the other party with the consent of the party concerned.
8. In the event of an agreement, the mediator shall work to ensure that the parties reach the agreement in full knowledge of the facts and understand its content. He or she shall inform the parties participating in the mediation without professional advice of the possibility of having the agreement reviewed by external advisors if necessary. The agreement reached shall be documented in a written final agreement.
The mediation process ends when
- the parties have reached an agreement,
- one party declares the proceedings terminated in accordance with § 3, or
- one party declares in text form that it has terminated the mediation proceedings vis-à-vis the other party and the mediator. The latter shall only be admissible at any time after the beginning of the first mediation hearing or if no mediation hearing has taken place within one month after the appointment of the mediator,
- the mediator declares the proceedings terminated in text form vis-à-vis the parties.
1.The limitation period for the claims specified in the notice of motion shall be suspended upon receipt of the request for mediation pursuant to § 2, i.e. subject to §§ 2 and 3 of this provision, the party concerned waives the right to raise the defence of limitation in this respect. The limitation of further claims or counterclaims shall be suspended upon receipt of a separate request to include the claims in the mediation proceedings. With regard to the form of such a request, § 2 shall apply accordingly.
2. If the mediation proceedings come to a standstill because the parties do not pursue them, the effect of suspension shall end three months after the last procedural act.
3.The limitation period shall begin at the earliest three months after the end of the mediation proceedings in accordance with § 6 or the standstill of the proceedings in accordance with § 7 paragraph 2.
During the mediation proceedings, neither party may initiate proceedings before an arbitral tribunal or state court. Proceedings for interim relief are excepted.
- The mediator shall be entitled to reasonable remuneration plus reimbursement of his necessary expenses, and turnover tax, if applicable, as well as to a reasonable advance payment or, at the mediator's option, to a reasonable security for costs.
- The parties shall make an agreement with the mediator on the amount of his remuneration.
The parties shall be jointly and severally liable for the mediator's costs. Unless the parties agree otherwise, they shall bear the costs of the mediation proceedings internally in equal shares and each their own costs.
The mediator shall only be liable for the wilful breach of his duties.
Costs of mediation
The costs of the mediation process are not subject to a fixed tariff. Rather, the mediator's fee must be negotiated between the parties on the one hand and the mediator on the other and - if possible - agreed in advance. Most mediators work on the basis of an hourly rate or daily rate.
In most mediation proceedings, the mediator does not have to read extensive submissions. His/her preparation time is therefore comparatively short. The mediation hearing itself also usually lasts only a few hours. Therefore, mediation is rightly considered a particularly favourable procedure for resolving a conflict.
Templates for mediation proceedings
Members of the GMAA can view this section once they have logged in.
Here you will find the members of the GMAA who are willing to act as mediators
You have the possibility to limit the number of corresponding members with the help of search words.
Here you will find the members of the GMAA who are willing to act as mediators.
You have the possibility to limit (filter) the number of corresponding members by means of search words, by searching for example according to surname, company name, place, profession or foreign language. Filtering by using several search words - separated only by a space - is also possible.
You can obtain further information about a member by clicking on the corresponding line.