A comparative analysis of mediation : examination and critique of the theory and practice in Germany, Switzerland and Scotland / Dominik Helmut Carle.

Abstract: Mediation is a special form of alternative dispute resolution which is becoming more and more popular. This thesis is concerned with the development of the legal framework and the practical use of mediation in Germany, Scotland and Switzerland. To harmonize the rules on mediation within the European Union, Directive 2008/52/EC was created imposing mandatory standards on certain aspects of mediation. The Directive is binding only in respect of cross-border dispute mediations, but its provisions may also be applied to internal dispute mediation processes. This led to the monistic approach, where a legislation system simultaneously seeks to regulate both internal dispute and cross-border dispute mediations and thus treats them equally, and the dualistic approach, where cross-border dispute mediations are regulated separately, and thus internal dispute and cross-border dispute mediations may be treated differently. In particular, this thesis is concerned with the question whether the distinction between internal dispute and cross-border dispute mediations drawn by Directive 800/52/EC complicates the harmonization of the rules on mediation. The implementation of Directive 2008/52/EC by the monistic approach in Germany, and by the dualistic approach in Scotland, and the autonomous handling of mediation legislation in Switzerland (which is not bound by Directive 2008/52/EC) show different patterns of development with regard to mediation in Europe. The comparison between those developments finally answers the question whether Directive 2008/52/EC in its current form was appropriate.