1. Mediation Law in Austria
Sascha Ferz

2. 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 & Graz

3. 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 & Graz

4. 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 & Graz

5. 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 & Graz

6. 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 & Graz

7. Research Field ADR & Mediation@Uni Graz
Mediation 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 & Graz

8. Mediation Suspension of time limits
Mediation Directive
Civil Law Mediation Act
Non-registered mediators
EU-Mediation Act
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
expiry suspension of limitation periods + other legal periods (e.g. short exclusion periods)
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 to document
no obligation to document
Research Field ADR & Graz

9. Mediation Confidentiality
Mediation Directive
Civil Law Mediation Act
Non-registered mediators
EU-Mediation Act
Art. 7
Art. 18
Art. 320 Code of Civil Procedure
Art 157. Code of Criminal Procedure
Officially recognised duty (e.g. Industrial Code)
Art. 321 Code of Civil Procedure
Art 3.
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
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
Research Field ADR & Graz

10. Research Field ADR & Mediation@Uni Graz
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 & Graz

11. 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 & Graz

12. I am looking forward to the discussion!