Year:    2010

Author:    von Bargen, Joachim

Die Verwaltung, Vol. 43 (2010), Iss. 3 : pp. 405–428

Abstract

Unlike, for example, in the United Kingdom and in the United States, Germany has a long tradition of judges who not only decide cases, but also seek to settle conflicts consensually. In the last ten years, more and more administrative courts – and others too – have followed this tradition by offering court-based mediation procedures as an alternative to conventional court proceedings (provided that the case is pending and appropriate). If the parties to court proceedings agree, a specially-trained judge of the same court will offer her service as a mediator, but will not have jurisdiction to decide the merits of the case. She tries to support the parties in a special interlocutory proceeding to work out a consensual solution of the conflict for which the parties are responsible, not the judge. The principal reason for the extension of dispute resolution services by the courts – which is understood as an original function of the judiciary – has to do with a change in the self-conception of judges. They see themselves increasingly as “service providers“ in carrying out their constitutional duty to guarantee justice. Their aim is to satisfy the expectations of the participants regarding a cost-effective, speedy, but first and foremost “good” and sustainable solution of the dispute. Many judges are convinced that court-based mediation procedures have a remarkable potential in these respects, especially in relation to the major challenge demanded of the administrative courts, namely to reduce the excessive duration of court proceedings without reducing the quality of the result.