Court-annexed mediation programs in Austria are rare, but they do exist. Ten courts offer court-connected mediation, providing the litigating parties the opportunity to opt for mediation with a well-trained and experienced mediator, as an alternative to the court process.

Paragraph 204 of the Austrian Civil Procedural Code allows a judge, while court proceedings are pending, to make the parties aware of institutions that offer alternative dispute resolution, if the judge thinks this is advisable. The judge can thus encourage parties to use mediation, but cannot order it. The suggestion that there might be an alternative means of resolving their conflict does not necessarily persuade the parties to use mediation, if they have already opted for litigation.

Finding a Mediator Can be Problematic

Finding a mediator is problematic in practice, with the parties left to choose a mediator from an extensive list of over 3,000 practitioners, with little to guide them in their selection. The list itself cannot be used to determine the level of experience and field of expertise of the mediator. While all listed mediators have undergone extensive training and subsequently been approved for inclusion by the Ministry of Justice, the mediator might never have actually mediated a case. Even parties who are well disposed toward the idea of mediation will often walk out of court and fail to act on their intentions.

Court-Annexed Mediation Program: Vienna Commercial Court

In light of these issues, the Court-Annexed Mediation Program at the Vienna Commercial Court has adopted the following approach:

First, the judge must decide which cases are appropriate for mediation. The judge then contacts the respective lawyers to ask whether the lawyers would object to a mediator attending the next court hearing (at no charge) to better understand the nature and likely cost of mediation.

If the lawyers accept this offer, the judge then invites a mediator to attend the next court hearing.

At the hearing, the judge explains why he/she has decided that this particular case is appropriate for mediation (the length of the case, burden of proof, cost of expert opinions, etc.) The judge then invites the mediator to explain how the mediation would work in practice, including: a description of the process, average length of time, the advantages to both parties, and an indication of the costs.

If both parties agree to the mediation, it is at the judge`s discretion to decide whether to postpone the hearing to a later date in order to give the parties time to mediate in the interim, or adjourn, or accept a proposed suspension of the proceedings.

The Pool of Mediators

Helped by VMG, an association founded to cater to the needs of courts and litigating parties, the courts have access to a pool of experienced mediators. The quality of mediators at the court`s disposal is ensured by the association, which sets the standards and approves all applications for membership. It is imperative that the judge has absolute trust in the abilities and skills of the mediator.

Best mediation practices have been developed in the Vienna Commercial Court, designed to meet the needs of a civil or commercial case. Ten courts in Austria use these mediation best practices. The goal is to offer mediation as an alternative means to litigation in every major civil court in Austria.

By Judge Felicitas Paller, Senior Fellow-Austria, Weinstein International Foundation.