Obligations of Mediators During Mediation – Part 3

Alongside the statutory obligations imposed by the Austrian Civil Mediation Act (ZivMediatG) (see Part 1 and Part 2), mediation rests on a contractual basis. The mediation agreement governs the legal relationship between the parties and the mediator and is usually concluded during the first joint meeting – either orally or on the basis of a written document.

In practice, a mediation agreement will be concluded as soon as the parties and the mediator agree to conduct mediation. The decisive question is therefore not whether an agreement exists, but what it contains and whether the parties are aware of its legal implications. This article looks at the practical advantages of setting the agreement out in writing.

Why Put the Agreement in Writing?

A written mediation agreement does more than confirm that the parties intend to attempt mediation. It can clarify essential elements of the process and make the legal framework of the mediation transparent.

Applicability of the ZivMediatG: Clarifying the Legal Framework

Whether the ZivMediatG applies depends on several conditions:

(i) there must be an actual conflict,

(ii) the dispute must in principle fall within the jurisdiction of a civil court or arbitral tribunal, and

(iii) the mediation must be conducted by an accredited mediator.

The dispute must therefore concern a civil law matter that could, in principle, be decided by a state court or arbitral tribunal. Typical examples include contractual disputes between companies and organisations, shareholder conflicts, other commercial disputes in B2B relationships, family law matters, inheritance disputes or neighbourhood conflicts. Conflict prevention or purely internal organisational discussions fall outside the scope of the ZivMediatG.

A written mediation agreement that clearly defines the subject matter of the dispute helps determine whether the ZivMediatG applies and which legal consequences follow. These include the mediator’s statutory duty of confidentiality, the right to refuse to give evidence and the suspension of limitation periods. For the parties, this clarification is important in order to understand the legal framework of the mediation from the outset.

Commencement of Mediation: Documentation and Suspension of Limitation Periods

Once mediation within the scope of the ZivMediatG begins, limitation periods are suspended by operation of law (§ 22 para 1 ZivMediatG). Mediation is considered to begin when the parties agree to resolve their dispute through mediation.

This agreement may already be reached before the first mediation session, for example during a preliminary discussion in which the parties agree to attempt mediation. Recording the agreement in writing nevertheless provides clear evidence of the point in time from which the suspension of limitation periods unquestionably applies.

Defining the Scope: Which Claims Are Covered?

The suspension of limitation periods under § 22 ZivMediatG applies only to claims that are expressly included in the mediation. The scope of the mediation should therefore be defined with sufficient clarity.

A written mediation agreement can record which issues and claims are included in the mediation – and which are not. This helps the parties understand what will be addressed within the mediation and which claims may need to be pursued or protected separately. If the scope remains unclear, limitation periods may expire unnoticed or uncertainty may arise as to the extent of the suspension.

Family law constitutes an exception. Where mediation concerns family law rights and claims, the suspension generally covers all mutual family law claims between the parties even without specific written designation, unless the parties agree otherwise.

Transparency in Case of Conflicts of Interest

Under § 16 ZivMediatG, the mediator must disclose all circumstances that could affect their independence or neutrality. In certain situations the parties may nevertheless decide to proceed with the mediation despite a potential conflict of interest. A written mediation agreement can document both the disclosure and the parties’ informed consent.

Confidentiality Between the Parties: A Common Misconception

A frequent misunderstanding is that everyone participating in mediation is automatically bound by confidentiality regarding what is discussed during the process. This is not the case.

The ZivMediatG stipulates merely the mediator’s duty of confidentiality (§ 18 ZivMediatG). The parties themselves are not bound by statutory confidentiality obligations toward third parties or toward each other. If the parties wish to ensure confidentiality among themselves, this must be agreed explicitly. Such provisions may form part of the mediation agreement or be set out in a separate confidentiality agreement. 

Procedural Rules During Mediation

The mediation agreement may also establish certain procedural rules for the duration of the mediation. For example, the parties may agree not to initiate or continue court or administrative proceedings while mediation is ongoing. Such standstill arrangements help protect the mediation process from parallel escalation and signal a shared commitment to resolving the dispute within the mediation framework.

A written mediation agreement may also address the involvement of external advisers and clarify whether – and under what conditions – one-on-one sessions between the mediator and individual parties may take place throughout the mediation process.

Limits of Contractual Freedom

Although the mediation agreement allows considerable flexibility, it remains subject to clear legal limits. Where the ZivMediatG applies, the statutory obligations imposed on mediators cannot be waived or restricted by contract. Duties relating to independence, impartiality, confidentiality and disclosure are mandatory. Any clause seeking to exclude or weaken these obligations would therefore be ineffective.

Takeaway

A well-structured mediation agreement establishes clarity from the outset and helps ensure that the mediation proceeds on a sound legal footing. Before entering into a mediation agreement, it may be useful to consider a few key questions:

• Applicability: Is it clear whether the ZivMediatG applies and which legal consequences follow?
• Scope: Is the subject matter of the mediation defined clearly enough to determine which claims are covered by the suspension of limitation periods?
• Commencement: Is the starting point of the mediation documented?
• Confidentiality: Have the parties clarified whether confidentiality should apply among themselves?
• Disclosure: Have potential conflicts of interest been disclosed and recorded transparently?
• Limits: Has care been taken to ensure that mandatory statutory obligations are not waived and that impermissible clauses are avoided?