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Mediation Law

Germans prefer to resolve their conflicts without taking it to the courts, and with the help of a neutral, third party. The so-called mediation law permits these resolutions to be legally binding. Mediation reduces the workload of the courts and often leads to a resolution accepted by both conflict parties.

Mediation is a structured approach which guarantees that its proceedings do not become public. The conflict parties participate freely in the mediation process and are asked to seek resolution in good faith.

The mediator is a neutral and independent party, but has no power to force a resolution. The mediator guides the conflict parties to a resolution which they have formulated.

The mediation law also allows for ombudsmen, or neutral third party organizations, which also offer conflict resolution services. These include banks, insurance companies, the German rail system, scientific research organizations, local utility companies, real estate associations, legal organizations. The association of banks, for example, in 2011 resolved over 8,000 conflicts. The insurance association resolved just over 17,000 conflicts.

In dubio pro reo

In German conflict situations, such as criminal law, the general rule “in dubio pro reo” (when in doubt, for the accused) applies. During the examination of a conflict and in reconstruction of the facts, it is requird that the judiciary be extremely accurate.

This means among other things, that subjective evidence, such as taking testimonies on the basis of assumptions (even though they might be accurate), are not sufficient indications of the facts. This protects the German defendants from unlawful decisions.

However, this also means that even if the subjective evidence is convincing, the prosecutor does not have the right to use it, unless and until objective evidence (e.g. reviewed testimonies, video- or tape recordings, images) verifies it.

If the prosecutor is not able to find such evidence and tries to support his argument by using subjective testimony, he still carries the burden of proof.

Let’s take the example of a prosecutor whose house was graffitied. The prosecutor does not know with certainty that the graffiti was actually done by the defendant, but he has a strong subjective presumption since the defendant is a well-known graffiti artist in the neighborhood.

The prosecutor carries the burden of proof. Relying only on subjective reasoning will lead to the lawsuit being rejected due to lack of conclusiveness.

Fritz Bauer

The People vs. Fritz Bauer (Der Staat gegen Fritz Bauer, 2015): The story of prosecutor Fritz Bauer’s pursuit of Nazi war criminals is told through behind-the-scenes investigation and confidential meetings. The film avoids sensational public hearings, instead focusing on indirect channels and private discussions to resolve conflict and build cases, mirroring the German preference for reducing tension through separation and structure.

German Mediation Act

Emphasis on Amicable Resolution: The German Mediation Act and civil procedure (§ 278 ZPO) encourage settlement at every stage, with mediators or conciliation judges empowered to use all appropriate methods—including separate interviews—to resolve disputes amicably.

German Mediator Training

Key Components of German Mediator Training

Duration and Structure: Training typically involves at least 130 hours of instruction over several months, often divided into modules. These modules cover both theoretical foundations and extensive practical exercises, including role-plays and supervised mediation cases.

Core Content Areas: communication techniques and conflict analysis, mediation process phases (from initial contact to final agreement); legal framework for mediation and enforceability of agreements; ethics, liability, and confidentiality; digital mediation and online communication skills; special topics such as diversity, workplace, and family mediation.

Practical Experience: trainees must complete several supervised mediations (currently five within three years after training) to qualify as a “certified mediator.” This ensures hands-on experience in real conflict situations.

Interdisciplinary Approach: trainers come from diverse backgrounds—law, psychology, business, and communication science—providing a broad perspective on conflict resolution.

Continuous Professional Development: certified mediators are required to participate in ongoing education and supervision to maintain their credentials, ensuring they stay current with best practices and new developments in the field.

Flexible and Modern Learning Formats: training can be completed in-person or online, with interactive elements such as digital whiteboards, podcasts, and online learning platforms supporting the curriculum.

Certification and Quality Assurance: he title “Certified Mediator” is protected by law and requires completion of a recognized training program, fulfillment of practical case requirements, and ongoing professional development.

Training programs are regularly updated to reflect new legal and technological developments, such as online mediation skills.

In summary, German mediator training is rigorous, interdisciplinary, and highly practical, combining legal, psychological, and communication expertise to ensure mediators are well-prepared to handle conflicts effectively and professionally.

Holschuld. Bringschuld. German law.

Holschuld: get obligation. Bringschuld: deliver obligation.

What is the difference between a debt to collect, a debt to bring and a debt to send?
In the case of a debt to be collected, the place of performance is with the debtor – the owed item must be picked up there by the creditor.

In the case of an obligation to deliver, the place of performance or fulfillment is with the creditor. The debtor must therefore pay at the domicile of the creditor. If there is a debt to be sent, the debtor must also send it.

The distinction is particularly important when it comes to the question of transport or shipment costs and the question of the transfer of the risk of the loss of the goods (e.g. if a package is lost in the post).

right to negotiate

American law, particularly contract law, emphasizes the freedom to negotiate and bargain without state interference. The principle of caveat emptor, or let the buyer beware, underscores the expectation that both parties in a transaction are responsible for establishing a fair price. Unlike German law, which may emphasize fairness and transparency, American law prioritizes individual autonomy and the right to negotiate based on perceived value.