Mediation Law in Austria Sascha Ferz Mediation Law

Mediation Law in Austria Sascha Ferz

Mediation Law in Austria Overview § A cross-border divorce § Civil Law Mediation Act § Registered and non-registered mediators § Mediation Directive 2008/52/EC and EU-Mediation Act § Suspension of time limits, confidentiality § Results/Consequences Research Field ADR & Mediation@Uni Graz 2

Mediation Law in Austria A cross-border divorce § § § Sarah and Sven – married couple Want to get divorced Sarah lives with their son, Victor, in Graz, Austria Sven lives in Berlin, Germany Mediation: Best interest of their child, mutual solution Mediators: § Life and social counsellor from Graz = registered mediator § Lawyer and mediator from Germany Research Field ADR & Mediation@Uni Graz 3

Mediation Law in Austria Civil Law Mediation Act (2003) § Limited to civil law disputes (including mediation in divorce matters) § Without guarantees of exclusivity § Initial approach to the professionalization of independent mediators § Regulates: § Requirements and administrative procedure for the registration of mediators § any person over the age of 28 § that is professionally qualified (220 to 365 units) § that is trustworthy and § that has taken out professional liability insurance Research Field ADR & Mediation@Uni Graz 4

Mediation Law in Austria Civil Law Mediation Act (2003) § …regulates: § Requirements and administrative procedure for the registration of training institutions and courses in lists kept by the Federal Minister for Justice § Rights and obligations of registered mediators (e. g. incompatibility, confidentiality, documentation and archiving, further training) § Legal consequences (suspension of deadlines) § Still possible to act as ‘non-registered mediator’ – professional law foundations are derived from existing regulatory regimes (Industrial Code & liberal professions) Research Field ADR & Mediation@Uni Graz 5

Mediation Non-Registered Mediators Family Mediators § Regulated in the Industrial Code § life and social counselling § Required age: 18 years § Mediation is included in the scope of communication councelling § Only a few hours of mediation training Research Field ADR & Mediation@Uni Graz 6

Mediation Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters § lower standards than existing regime in Austria (especially regarding the education and training of mediators) implementation „only to the absolutely necessary extent to maintain the high Austrian standard” and without amending the existing relevant regulations New regulations: § Federal Act on certain aspects of cross-border mediation in civil and commercial matters in the European Union (EU Mediation Act) – geographical and subject-matter scope extends only to cross-border disputes in civil and commercial matters (including mediation in divorce matters) § Exception mediation settlement: enforceability regulated in Civil Procedure Code, applies to all mediations, also national mediations Research Field ADR & Mediation@Uni Graz 7

Mediation Suspension of time limits Mediation Directive Civil Law Mediation Act Non-registered mediators Art. 8 Art. 22 judicial rule for preliminary out of court settlement conferences Art. 4 parties who choose mediation shall not subsequently be prevented from initiating judicial proceedings or arbitration by the expiry of limitation or prescription periods suspension of the beginning and continuation of limitation periods + other substantive-legal periods (also preclusive periods) expiry suspension of limitation periods + other legal periods (e. g. short exclusion periods) EU-Mediation Act automatically applicable to all mutual rights and claims of family law only applicable to rights and claims that are subject of the mediation possibility to extent suspension to other claims no possibility to extent suspension to other claims obligation. Research to document Field ADR & Mediation@Uni Graz no obligation to document 8

Mediation Confidentiality Mediation Directive Art. 7 Civil Law Mediation Act § § § Art. 18 Art. 320 Code of Civil Procedure Art 157. Code of Criminal Procedure Non-registered mediators § § Officially recognised duty (e. g. Industrial Code) Art. 321 Code of Civil Procedure EU-Mediation Act § § Art 3. Art. 321 Code of Civil Procedure applies to mediators and those involved in the administration of the mediation process applies to mediators, his/her supporting staff and practical trainees of the mediator applies to mediators (respectively persons affected by an officially recognised duty) applies to mediators and those involved in the conduct of the mediation parties can agree on a release from the obligation parties cannot release from the obligation parties can release from the obligation in a legally effective way parties can agree on a release from the obligation exceptions: § considerations of public policy § disclosure of content of agreement is necessary to implement or enforce agreement no exceptions, but justification regarding punishment according to the Civil Law Mediation Act: public or private interest exceptions dependent on the officially recognised duty exceptions: § considerations of public policy § disclosure of content of agreement is necessary to implement or enforce agreement Research Field ADR & Mediation@Uni Graz 9

Mediation Cross-border – Relationship between Civil Law Mediation Act and EU Mediation Act § Art. 5 of the EU Mediation Act states a distinction between non-registered and registered mediators § In ‘mixed’ co-mediations the level of protection of the parties varies; only in relation to the suspension of time limits the higher standard in Art. 22 Civil Law Mediation Act applies (norm conflict) Research Field ADR & Mediation@Uni Graz 10

Mediation Results & Consequences § Stable legal foundation for mediation in Austria § But a variety of regulations for a small market § Difficult (selection and councelling) process for the parties § Trust in mediation as dispute resolution method is not ensured Research Field ADR & Mediation@Uni Graz 11

I am looking forward to the discussion! sascha. ferz@uni-graz. at