Obligations of the Mediator During Mediation – Part 1

Mediation is not an informal conversation format. It is a structured procedure with clearly defined roles and responsibilities. The obligations that bind a mediator during mediation arise from the agreed legal framework. Some duties flow directly from the Austrian Civil Mediation Act (Zivilrechts-Mediations-Gesetz, ZivMediatG), while others stem from the mediation agreement concluded between the parties. This article concentrates on those obligations that arise directly under the ZivMediatG.

Part One clarifies when the ZivMediatG applies, why the mediator’s formal status is legally relevant for the parties, and what fundamental standards you may legitimately expect from an accredited mediator. Part Two will examine the mediator’s specific disclosure obligations under the ZivMediatG in greater depth. Part Three will address the mediation agreement as the civil law foundation of the process.

When Does the ZivMediatG Apply?

Not every facilitated or moderated conversation constitutes “mediation” in the legal sense. For the protective regime of the ZivMediatG to apply, specific statutory requirements must be satisfied.

• Civil law dispute: The matter must be a conflict that could, in principle, be adjudicated by a state court or arbitral tribunal. This includes contractual disputes between companies and organisations, shareholder disagreements, other commercial conflicts in B2B relationships, as well as family law matters such as divorce, custody arrangements, and inheritance disputes. The dispute does not need to be pending before a court; it is sufficient that it is justiciable in principle. Purely preventive conflict facilitation, by contrast, does not fall within the scope of the ZivMediatG.
• Accredited mediator: The mediation must be conducted by a mediator registered in the official list maintained by the Austrian Federal Ministry of Justice. 
• Express agreement: The parties must explicitly agree that their procedure is to be conducted as mediation, and it must in fact be carried out as such. Informal discussions, settlement talks or structured negotiations alone do not suffice. If the mandate changes during the process – for example, from mediation to consultancy, coaching or strategic process support – the ZivMediatG no longer applies from that point forward.

The Important Distinction: Accredited and Non-Accredited Mediators

In Austria, the professional title “mediator” is not protected. Various designations are used in practice, such as “certified mediator,” “commercial mediator,” or mediation offered as an ancillary service within another profession.

• Accredited mediators have completed training that meets statutory requirements in content and scope and are subject to mandatory continuing education. They are required to use the designation “accredited mediator” (eingetragener Mediator). Only mediations conducted by accredited mediators benefit from the specific statutory privileges under the ZivMediatG, including the right to refuse to give evidence, comprehensive confidentiality protection and the automatic suspension of limitation periods.
• Non-accredited mediators may offer mediation services based on other professional qualifications, for example as business consultants, counsellors, lawyers, notaries or chartered accountants. However, a different legal framework applies. They must clearly inform parties that the central legal effects of the ZivMediatG – in particular regarding confidentiality protection and the suspension of limitation periods – do not apply.

For parties, this distinction is not merely formal. It has direct consequences for the legal safeguards surrounding the process. 

Personal and Conscientious Conduct of Mediation

An accredited mediator is required to conduct the mediation personally, directly and to the best of their knowledge and ability. Responsibility for leading and structuring the process cannot be delegated. The mediator remains personally accountable for the proper conduct of the proceedings and for the appropriate application of mediation-specific methods.

The mediator’s obligation is process-oriented, not outcome-oriented. They do not owe the parties a settlement. They owe them a professionally sound, careful and conscientious facilitation of the process. This duty underpins the particular trust placed in the mediator and forms a prerequisite for invoking the statutory protections of the ZivMediatG.

Independence, Neutrality and Impartiality

A defining feature of mediation is the mediator’s objective distance from both the substance of the conflict and the individuals involved. The ZivMediatG safeguards this through concrete duties and exclusion grounds under § 16 ZivMediatG.

Independence and Conflicts of Interest

The mediator must act independently. To prevent economic or personal influence, the ZivMediatG establishes clear parameters.

• No referral commissions: The mediator may neither offer nor accept remuneration or other benefits for referring or recommending mediation services. This rule prevents external financial interests from influencing the choice of mediator or the conduct of proceedings.
• Exclusion due to prior involvement or conflict of interest: A mediator must not accept a mandate if they were or are themselves a party to the dispute, have represented or advised one of the parties, or have otherwise been involved in the matter. The decisive standard is not only actual bias but also the objective appearance of a conflict of interest.
  Example: A business consultant advised Company A two years ago on a strategic project. A dispute now arises between Company A and its contractual partner B. Even if the earlier advisory work is unrelated to the present dispute, the consultant may not assume the role of mediator. Prior involvement alone may give rise to reasonable doubts as to independence.
• Post-mediation prohibition on representation: During and after the mediation, the mediator may not represent, advise or otherwise act in a partisan capacity for any party. This prevents information or dynamics from the mediation being used unilaterally at a later stage. A narrowly defined exception applies to lawyers and notaries acting as mediator who, with the express consent of all parties, may formalise the mediated agreement in legally binding form.
  Example: Following a successful mediation, one party asks the mediator to act as their lawyer in an unrelated matter. As a rule, this is not permissible. Clear separation of roles must be maintained beyond the conclusion of the mediation.
• Disclosure obligation: The mediator must disclose all circumstances that could impair or appear to impair independence or neutrality. This duty applies not only at the outset but throughout the entire process. It encompasses prior business relationships, personal acquaintances, shared organisational memberships, family ties or other connections that could, even if seemingly minor, undermine confidence in impartiality.

Neutrality and Impartiality

In mediation, neutrality does not imply emotional detachment; it means balanced process leadership. The mediator is equally committed to all parties. They ensure that each party’s procedural rights are respected, that structural imbalances are addressed, and that all participants have an equal opportunity to articulate their interests, concerns and perspectives. This is not merely a methodological recommendation. It is a legally relevant core obligation.

What Happens in the Event of a Breach?

If an accredited mediator violates statutory duties under the ZivMediatG, several legal consequences may follow.

• Civil liability: A culpable breach of duties of care, independence or disclosure may give rise to claims for damages under general civil law principles.
• Administrative penalties: The ZivMediatG contains specific penalty provisions in § 31. Violations of statutory obligations may be sanctioned by fines.
• Professional consequences: Accredited mediators are subject to oversight by the Austrian Federal Ministry of Justice. Serious or repeated breaches may result in removal from the official list of mediators.

Takeaway and Initial Checklist

Before commencing mediation, a brief review is advisable.

• Setting: Is the envisaged process a mediation? Is the underlying conflict in principle admissible before a court or arbitral tribunal, such that the ZivMediatG applies?
• Status: Is the mediator registered in the official list of the Austrian Federal Ministry of Justice?
• Conflict check: Have potential conflicts of interest or prior involvements been examined and transparently disclosed?
• Professional impression: Does the initial exchange convey that the mediator maintains equal distance from all parties and approaches the process with the requisite impartiality and independence?