Commercial
Mediation in Vienna

The choice between mediation and court proceedings should be evaluated not only from a legal perspective but also with economic and strategic considerations in mind. Key factors include:

• Chances of Success in Court: How realistic is a favorable outcome given the available evidence and the strength of your legal position?
• Financial Investment: Expected court costs, attorney fees, expert fees, out-of-pocket expenses, and internal resource allocation must all be taken into account.
• Continuity of Cooperation: Is it important to preserve the business relationship beyond the current dispute?
• Urgency: How quickly does the dispute need to be resolved?
• Cross-border Contexts: Does the dispute involve different business cultures, multiple legal systems, or issues relating to the cross-border enforcement of an agreement or judgment?
• Tailored Solutions: Are customized agreements required that go beyond purely legal claims?

Mediation is particularly valuable when time is a critical factor, ongoing business relationships need to be protected, or flexible, bespoke solutions are required. A timely assessment of these criteria helps identify the most appropriate dispute resolution process and lays the foundation for an efficient mediation process.

Mediation can be effective at any stage of a dispute, whether a conflict is just emerging, gaining momentum, or has already escalated. Its greatest value often lies in early intervention: as soon as tensions begin to surface, decisions are being delayed, or coordination becomes increasingly inefficient, mediation can help address issues promptly and pragmatically, restoring the parties' ability to move forward before the conflict becomes entrenched.

Even after court or arbitration proceedings have been commenced, mediation may still be an appropriate and effective option, whether conducted in parallel with the proceedings or while they are stayed (by agreement of the parties).

What supports this approach: At this stage, the factual background and the parties' legal positions have usually already been thoroughly developed. The parties are familiar not only with their own case, but also with the arguments advanced by the other side. Expert evidence may already be available, and the likely outcome and duration of the proceedings can often be assessed with greater certainty. Against this background, mediation can be used strategically to accelerate the resolution of the dispute and place control over the outcome back into the hands of the parties.

What to consider: Starting mediation at a later stage may leave less room for negotiation. New evidence may alter a party's negotiating position, or the progress of the proceedings may strengthen a party's incentive to pursue the litigation or arbitration through to a final decision. Empirical research reflects this: the 2021 LCAM-HSF Survey found that mediators reported successful settlements far more frequently where mediation took place before the commencement of arbitration (65.7%) than after the evidentiary hearing (5.7%).

Mediation is not appropriate in every situation. Whether mediation is the right approach depends on a range of commercial and strategic considerations, including litigation risk, the importance of preserving the business relationship, reputational concerns, and the timeframe within which a resolution is required. A structured assessment of these factors provides a sound basis for determining the most appropriate dispute resolution strategy.

Where a business or organisation requires a binding decision, judicial determination of disputed legal or contractual issues, an immediately enforceable judgment or other enforceable instrument, or seeks to establish a legal precedent, litigation or arbitration may be the more appropriate course of action.

Structural or organisational factors may also limit the effectiveness of mediation. This may be the case where decision-making authority is unclear, where the individuals participating in the mediation lack the authority to bind their organisation, or where negotiated outcomes cannot be implemented internally.

Likewise, significant asymmetries in bargaining power or a lack of genuine willingness to engage on the part of one of the parties may reduce the prospects of a successful mediation or, in some cases, make the process impracticable.

An initial consultation provides an opportunity to assess whether mediation, another dispute resolution process, or a combination of approaches is best suited to your particular circumstances.

Choosing the right mediator is one of the key factors influencing both the process and the outcome of a mediation. In addition to strong mediation skills, a sound understanding of commercial realities, experience with complex disputes, and a professional approach that inspires confidence are essential. Equally important is the trust of all parties in the mediator’s competence, qualifications, and ability to manage the issues in dispute effectively.

Depending on the nature of the case, further criteria may also come into play. These may include the mediator’s style and methodological approach, specialist expertise in the relevant industry or subject matter, a legal background where disputes are particularly law-intensive, as well as experience with institutional mediation frameworks such as the VIAC, ICC, or comparable rules.

As a mediator, I treat all information and documents disclosed during the mediation process as strictly confidential. This obligation applies regardless of whether the Austrian Civil Mediation Act (ZivMediatG) is applicable and continues beyond the conclusion of the mediation.

Where the ZivMediatG applies (in particular in civil and commercial matters), statutory provisions, including the mediator’s right to refuse testimony, generally prevent any disclosure of mediation content in court proceedings. Disclosure is only permitted in the narrowly defined context required to enforce a mediation settlement.

It should be noted, however, that the parties themselves are not subject to a statutory duty of confidentiality. If confidentiality is required, the parties must therefore enter into an express confidentiality agreement, which may be included in the mediation agreement but may also be concluded separately. Where assistants or third parties are involved, appropriate confidentiality undertakings should likewise be put in place.

Exceptions to the confidentiality provisions are statutory reporting obligations, such as in cases of imminent danger, or other criminal acts, where I am legally required to disclose information.

To support the parties actively and give them time to focus on resolving the dispute, Austrian law provides that limitation periods and other deadlines for asserting claims are suspended throughout the mediation proceedings, subject to the following conditions:

• the Austrian Civil Mediation Act (ZivMediatG) applies to the mediation; and

• the mediation is conducted by a mediator listed with the Austrian Federal Ministry of Justice.

The suspension ends and the deadlines resume if the mediation is terminated or not properly continued within an appropriate timeframe.

If a mediation does not lead to an agreement, the parties remain free to pursue their claims through court or arbitration proceedings.

Whether legal counsel should be present at the table depends on the dynamics of the individual case. In practice, legal support can add value at different stages of the process.

Before mediation: At the preparatory stage, legal advice forms an integral part of a broader strategic assessment of the dispute. Together with an internal risk analysis, taking into account reputational considerations, ongoing commercial relationships, and cost implications, it provides a clear and realistic picture of the starting position and the available room for negotiation.

During mediation: Whether legal counsel should present at the table depends on the dynamics of the individual case. In many instances, their involvement is highly beneficial. In others, legal input is provided in the background through close coordination, enabling a continuous assessment of legal positions, settlement parameters, and the practical enforceability of potential outcomes. The drafting and implementation of any resulting agreement is, in most cases, handled by legal counsel.

Where legal issues appear to remain unresolved or at the heart of the dispute, I will point to the need for appropriate legal advice. Pursuant to Section 16 of the Austrian Civil Mediation Act (ZivMediatG), I am not permitted to provide legal advice within the mediation process.

An efficient mediation process is based on a clear division of roles: I am responsible for structuring and facilitating the process and for safeguarding procedural integrity, while legal counsel advises their respective client on legal and strategic matters, either at the table or through parallel coordination outside the sessions.

A mediation agreement may be structured in a variety of ways, ranging from an informal settlement to an internationally enforceable consent award. The choice of structure is a strategic decision with cost implications. It depends on the legal effect the parties intend to achieve and the jurisdictional context in which the agreement may ultimately need to be enforced.

Where the primary objective is to establish documented legal certainty at domestic level, a written settlement agreement or a court-recorded mediation settlement may often suffice. If, by contrast, enforceability is the key concern – particularly in an international context outside the EU – structuring the outcome through arbitral proceedings and embodying it in a consent award may be the more effective solution.

These choices have a direct impact on cost exposure, procedural design, and enforceability. They should therefore be addressed at an early stage of the mediation and assessed strategically, including with regard to the allocation of costs.

A further Austrian particularity should be noted: mediation settlement agreements may trigger stamp duty under Section 33 item 20 of the Austrian Stamp Duty Act (Gebührengesetz, GebG). Whether and to what extent this applies depends on the specific structure of the agreement and should form part of the overall strategic assessment.

Mediation depends on the voluntary participation of all parties. Where one party is unwilling to engage, a workable outcome is generally not achievable, and mediation will typically not be the appropriate mechanism for resolving the dispute. It is therefore worth assessing the other side's willingness to participate at an early stage, and considering alternative approaches where appropriate.

Mediation also requires a readiness to negotiate. Parties who are unwilling to move from their initial position rarely reach a workable resolution. Clarifying in advance both the available room for movement and the boundaries of what is acceptable is an essential part of the preparation.

As a mediator, I conduct commercial mediations both domestically and internationally in an increasingly interconnected business environment. Mediation can take place in suitable external venues in Vienna or elsewhere in Austria, or - if preferred - at your company's premises. The venue, format and schedule are tailored to the needs of the parties and agreed jointly in advance.

Mediations can be conducted in German or English.

The fees for commercial mediation depend on the complexity and scope of the matter. Fees are always agreed in advance, whether on an hourly basis, a day rate, or a fixed fee.