Obligations of the Mediator During Mediation – Part 2

In addition to the obligation to conduct mediation personally, independently and impartially (see Part 1), the mediator is subject to comprehensive duties of disclosure regarding the nature and legal consequences of mediation (§ 16 ZivMediatG). The purpose of these duties is to ensure that the parties enter into and continue the mediation on an informed basis. The parties must clearly understand what they are committing to.

Disclosure Regarding the Mediator’s Status

The professional title “mediator” is not legally protected in Austria (see Part 1). Mediation may therefore be offered by individuals with different professional backgrounds. From a legal perspective, what matters above all is whether the mediation is conducted by an accredited mediator within the meaning of the Austrian Civil Mediation Act (ZivMediatG).

An accredited mediator is required to use this designation. This makes it transparent to the parties that the procedure falls within the scope of the ZivMediatG and that the statutory legal effects associated with it apply — in particular the duty of confidentiality, the right to refuse to give evidence, and the statutory suspension of limitation periods. This distinction is essential for the parties in order to properly assess the legal safeguards of the process.

Disclosure Regarding the Mediation Process and Its Legal Implications

The mediator must inform the parties what mediation is — and what it is not. This includes, in particular, a clear distinction from other forms of dispute resolution. Mediation is neither court litigation nor arbitration: the mediator does not adjudicate rights and does not issue binding decisions. Mediation is also not therapy or psychological treatment. Its purpose is to clarify a conflict and to develop workable solutions, not to address emotional disorders or deep-seated personal patterns.

Mediation is a structured process for resolving conflicts. The parties work toward a solution on their own responsibility, while the mediator designs and facilitates the process and supports constructive dialogue.

Party autonomy is central. The parties decide whether and when mediation begins and ends, who acts as mediator, which issues are discussed, and whether and on what terms an agreement is reached. Mediation is voluntary: each party may terminate the process at any time without giving reasons. All substantive decisions — and responsibility for their implementation — rest exclusively with the parties.

Disclosure Regarding the Need for External Advice

The mediator does not provide legal, tax or other specialist advice. The parties must be clearly informed of this role limitation. If, in the course of the mediation, it becomes apparent that external advice is necessary or advisable to safeguard a proposed solution or clarify specific issues, the mediator must draw this to the parties’ attention (§ 16 para 3 ZivMediatG).

Whether external advice is obtained remains the parties’ decision. They are entitled at any time, before or during the mediation, to seek independent legal or other professional advice. Where concrete clarification is required, the mediator must give the parties sufficient opportunity to obtain such advice.

Disclosure Regarding the Outcome of Mediation

The mediator must inform the parties of the possible legal significance of an agreement reached in mediation (see in detail here). It must be made clear that the binding force of any arrangement does not arise from the mediation itself, but from the parties’ own decision.

In practical terms, this means that the parties determine whether they wish to enter into a legally binding agreement. If they do, the agreement may — depending on its content — already constitute a contract or may require compliance with specific statutory formalities (for example written form, notarisation or incorporation into a court settlement).

The mediation process itself does not automatically provide legal certainty or enforceability. Whether an agreement is valid or enforceable depends on the applicable substantive law.

Written Record of the Outcome

If the parties request a written summary, the mediator must record the result of the mediation and the steps envisaged for its implementation (§ 17 para 2 ZivMediatG). This obligation concerns the transparent documentation of what the parties have agreed, not the detailed legal drafting of the agreement.

Disclosure Regarding Confidentiality

A core element of the mediator’s role is the statutory duty of confidentiality (see in more detail here) and the parties need to be informed accordingly. The mediator must keep confidential all facts and information entrusted to him or otherwise obtained in connection with the mediation (§ 18 ZivMediatG). This obligation continues beyond the end of the mediation and covers both the content of discussions and any documents or notes.

In addition, the mediator benefits from a statutory right to refuse to give evidence. This means that in subsequent court proceedings he cannot be compelled to testify about the content of the mediation. Exceptions apply, e.g. where overriding statutory reporting or protective duties intervene (see in more detail here).

Disclosure Regarding Suspension of Limitation Periods

Upon the commencement of mediation conducted under the ZivMediatG, the beginning and continued running of limitation periods for asserting rights and claims affected by the mediation are suspended by law (§ 22 para 1 ZivMediatG). This suspension ends once the mediation is terminated or not duly continued; from that point onward, the relevant time periods resume running. The mediator has to inform the parties about this statutory suspension.

Documentation Obligation

In addition to the duties of disclosure, the mediator is subject to a statutory documentation obligation (§ 17 ZivMediatG) (see in more detail here). The mediator must record the commencement of the mediation, the circumstances indicating whether it has been duly continued, and its conclusion. This documentation obligation relates exclusively to the formal course of the procedure (beginning, continuation, end), not to the content of discussions. The records must be retained for at least seven years after the mediation has ended.

Takeaway

In the context of disclosure duties, it is useful to revisit the fundamentals of the process:

• Legal Framework: Is it clear at the outset under which legal framework the mediation is conducted and what status the mediator holds?
• Process clarity: Have the parties been informed about the nature of mediation, the mediator’s role and the voluntary character of the process?
• Legal consequences: Are effects such as confidentiality and the suspension of limitation periods properly explained and assessed?
• Outcome and form: If an agreement is reached, are its intended legal effects and any formal requirements addressed?

These considerations support a realistic assessment of the procedure and create clarity regarding responsibilities, legal effects and the structure of mediation.