“In order to reach an amicable settlement of the dispute, the hearing is preceded by a conciliation negotiation, unless efforts have already been made prior to another dispute resolution proceeding or the conciliation negotiation does not appear to have any chance of success. During the conciliation hearing, the Tribunal must review with the parties the circumstances and facts and the current state of the dispute, assess all the circumstances without restrictions and request whenever necessary. Parties who speak on these issues must be heard in person. If the quality negotiation, i.e. the conciliation conference at the beginning of the first hearing, did not result in an amicable solution, it does not mean that any hope of reaching an agreement is lost. Another popular stage of the proceedings, in which German judges generally raise the issue and favour possible regulation, is after the hearing of witnesses. In many cases, both the court and the parties have a fairly good idea of who is likely to win the case and who is likely to lose. This last point, that is, the potentially losing party, is generally more open to resolving the dispute, obviously on much less favourable terms. Even if the parties know who will win the case, a transaction can have benefits for both parties: the legal costs are reduced and the appeal is definitively closed because, unlike a judgment, the transaction cannot be challenged. Given that the parties are trying to resolve their dispute amicably under their own responsibility, it is considered essential that the parties also appear personally in the commercial mediation process.
Despite this, the involvement of lawyers handling the case in an advisory capacity is common. In general, factual witnesses and expert witnesses are not used because they do not meet the purpose of the mediation procedure mentioned above. Intermediation clauses are increasingly integrated into trade agreements, mainly in the form of multi-level clauses. When a mediation clause is included in a contract, the attempt to find a transaction in mediation has been deemed mandatory in a small number of court proceedings. Thus the Bundesgerichtshof decided in 1977 (BGH, 04/07/1977 – II ZR 55/76) ,1983 (BGH 23/11/1983 – VIII ZR 197/82) and 1998 (18/11/1998 – VIII ZR 344-97), as attempt to settle a case, is inadmissible if conciliation is agreed in a company`s statutes or in a contract. In a 2008 decision (BGH, 29.10.2008 – XII ZR 165/06), the Bundesgerichtshof considered a conciliation clause as a condition for disputes. On the other hand, the Bundesarbeitsgericht took a decision in 1999 (BAG, 18.05.1999 – 9 AZR 682/98) concerning the convening of an ecclesiastical conciliation commission which, according to the judges, does not exclude the circulation of trials. Finally, the Amtsgericht Heilbronn (LG Heilbronn, 10.09.2010 – 4. O 259/09) referred to a mediation clause in 2010 and concluded that the clause could not be construed as an interim waiver in state courts, since mediation could be interrupted at any time by the parties.
However, the decision of the Heilbronn Regional Court was discussed in the legal literature and considered fundamentally wrong. Dispute resolution has a long history that can only be outlined in this publication. As historical documents relating to mediation refer to centuries, it is not so much a question of the history of mediation in Germany as a question of the history of mediation in Europe, depending on the political and structural situation given in the past. “A transaction can also be made in court by the litigants, by submitting a written proposal to the Tribunal on how to resolve the matter or by accepting the transaction proposed in writing by the Tribunal in a corresponding letter sent to the Tribunal.