Impact of the EU Mediation Directive on the German Construction Sector

• Published in: Journal of legal affairs and dispute resolution in engineering and construction 2010-08, Vol.2 (3), p.162-168
• Main Authors: Hillig, Jan-Bertram, Huhn, Martin
• Format: Article
• Language: English
• Subjects: Alternative dispute resolution; Balancing; Construction; Domestic; Incentives; Law; Mediation; SCHOLARLY PAPERS
• ISSN: 1943-4162; 1943-4170
• DOI: 10.1061/(ASCE)LA.1943-4170.0000021

The European Union (EU) Mediation Directive of 2008 has to be transposed into German law by 2011. German law already complies with the Directive to a large extent. The only action that needs to be taken concerns the loosely defined obligations regarding the quality of mediation and the mediator’s right to refuse to give evidence. In both cases, only the law governing cross-border disputes needs to be amended. Nevertheless, it is likely that the Directive will have a significant impact on the German construction sector. In terms of cross-border disputes, German companies involved in other EU member states will feel the impact directly because the Directive makes mediation more effective by creating a consistent European framework that provides a balanced relationship between mediation and judicial proceedings. In terms of domestic mediations, the impacts of the Directive will be more indirect. The German lawmaker is likely to go beyond the requirements set out in the Directive, at least by applying the new rules to both cross-border and domestic mediations, but perhaps even by introducing incentives for mediation which are not required by the Directive.