Observations on the Mediation System in Germany

During the 2023 judicial recess, I conducted a professional visit to Germany to gain insights into the legal issues faced by first, second, and third-generation citizens living there, focusing on legal disputes and mediation practices. During this visit, I observed mediation practices in Germany through meetings with local lawyers, citizens, and various civil society organizations. In this article, I share the insights gained from these observations.

In Turkey, mediation entered the legal system with the Law No. 6325 on Mediation in Civil Disputes in 2012. Since then, significant steps have been taken, including the promotion of mediation, training and examination of mediators, voluntary dispute resolution, the establishment of mediation associations and centers, and, after 2018, the inclusion of labor, commercial, consumer, and recently rental disputes under mandatory mediation. Over the past ten years, approximately five million civil disputes have entered the mediation system, with settlement rates averaging around 70%. It should be noted that voluntary mediation generally yields even higher agreement rates. However, in cases of mandatory mediation, mediators and party representatives have a greater role in achieving resolution. Overall, Turkey’s mediation system can be considered successful, thanks to the efforts of the Ministry of Justice, the Directorate General of Legal Affairs, and the Mediation Department.

Dispute resolution in civil law is challenging. Achieving a “win-win” outcome is difficult due to emotional and moral factors that often hinder the process. Successful outcomes are closely tied to the negotiation skills and expertise of mediators and legal representatives.

Mediation offers an alternative method to resolve disputes outside the courtroom. Unlike litigation or arbitration, mediation allows parties to make decisions about their disputes themselves. It requires parties to negotiate maturely, with empathy and sometimes even by making concessions, under the guidance of a mediator. The mediator’s role is to facilitate understanding and guide parties toward a resolution.

Importantly, in Germany, mediation negotiations do not require reaching an agreement. Parties meet to discuss and negotiate disputes, and even if no agreement is reached, hostility is reduced, creating a more peaceful societal environment. Unlike a legally formal agreement, the key is reaching a mental and relational resolution between parties. Mediation, therefore, addresses both the dispute and the interpersonal relationship.

Mediation is implemented in approximately 160 countries. In Germany, the legal framework was established in 2012, following the adoption of the UNCITRAL Model Law on International Commercial Mediation in 2002. The German Mediation Act (Mediationsgesetz) promotes and regulates mediation, outlining principles such as confidentiality, mediator qualifications, ethics, registration, and legal enforceability of mediation agreements. The Act shares similarities with Turkey’s Law No. 6325, particularly regarding confidentiality obligations.

Mediation in Germany is widely used and encouraged as an effective method to resolve disputes, especially in economic matters. Legal advice from a lawyer is often recommended to ensure successful outcomes. The process is not mandatory as it is in Turkey; however, the judicial system culturally encourages parties to attempt mediation before litigation. Lawyers often direct clients to mediation before resorting to court, and judges may even admonish parties who bypass mediation. Court-led mediation also exists for specific cases.

In Germany, mediation services can be accessed through registered mediation centers or independent certified mediators. Mediators are often selected based on expertise, and processes are formalized through mediation agreements signed by the parties. Mediators are required to undergo continuous training and remain updated on legal and practical changes. Regional differences in regulations exist across federal states.

Mediation is applied in various areas of law in Germany:

• Family Law: Divorce, property division, alimony, child custody, inheritance disputes.

• Labor Law: Employee-employer disputes, dismissals, wage issues.

• Consumer Law: Disputes between consumers and businesses, product returns, service disagreements.

• Commercial Law: Business-to-business conflicts, contract breaches, payment delays, trade secrets.

• Real Estate Law: Property disputes, landlord-tenant issues, construction contracts.

• Inheritance Law: Inheritance disputes among heirs.

• Social and Community Conflicts: Neighborhood and societal disputes.

• Education Law: School disputes, teacher-student conflicts, administration-parent conflicts.

• Environmental and Neighbor Disputes: Noise, property boundaries, environmental issues.

• Health Law: Disputes regarding medical services and pharmaceutical products.

• Criminal Mediation: Minor criminal offenses between offenders and victims.

• Public Law: Disputes involving public sector employees or institutions.

• International Mediation: Cross-border corporate disputes, including recognition of mediation agreements under the Singapore Convention.

Several German mediation organizations serve these areas:

• Deutsche Gesellschaft für Mediation eV (DGM) – German Mediation Association

• Zentrale Schlichtungsstelle des Bundes für das Gesundheitswesen – Federal Mediation Office for Health Services

• Bundesverband Mediation eV – Federal Mediation Association

• Industrie- und Handelskammern – Chambers of Commerce mediation services

• Verbraucherzentralen – Consumer mediation centers

• Deutsche Anwaltsvereinigung für Mediation eV – Mediation Lawyers Association

• And various regional or sector-specific centers

In Germany, mediation is not only a legal tool but also a cultural practice, fostering cooperation, reducing court workload, minimizing costs, and preserving professional and personal relationships. Successful outcomes depend on mediator expertise, willingness of parties to cooperate, and quality of the mediation process.

(*) This article reflects observations, discussions, and experiences; the style is narrative and analytical.