{"id":2159,"date":"2018-05-14T12:01:46","date_gmt":"2018-05-14T10:01:46","guid":{"rendered":"https:\/\/dev.inkovema.de\/?page_id=2159"},"modified":"2023-12-14T11:39:53","modified_gmt":"2023-12-14T10:39:53","slug":"final-agreements-in-mediation-and-limits-for-mediators-the-legal-services-act","status":"publish","type":"page","link":"https:\/\/dev.inkovema.de\/en\/mediation\/final-agreements-in-mediation-and-limits-for-mediators-the-legal-services-act\/","title":{"rendered":"Final agreements in mediation and the limits of the Legal Services Act"},"content":{"rendered":"

Final agreements in mediation and limits for mediators due to the Legal Services Act<\/h1>\n

25 Basics of mediation (24)<\/h2>\n

Photo by rawpixel<\/a> on Unsplash<\/a><\/p>\n

In the mediation process, the conflict is be<\/em>spoken and no right ge<\/em>spoken as in court proceedings. Nevertheless, the law is also discussed in mediation and what is discussed in mediation is often clothed in legal garb. This has an impact on the work and requirements of mediators. This will be discussed here in the 24th article on the basics of mediation.<\/p>\n

Some mediators are generally authorised to provide legal advice on the basis of further qualifications. Even if this is neither necessary nor desirable in mediation proceedings, they could and may initially offer this service. However, many mediators are generally prohibited from doing so because they do not have the relevant qualifications and authorisation. What special features apply to mediators who are not authorised to offer legal advice?<\/strong><\/em><\/p>\n

The limits for non-lawyer mediators can be found in a comparatively recent law: The Legal Services Act (RDG)<\/strong><\/em>. In July 2008, the Legal Services Act (Rechtsdienstleistungsgesetz) replaced the previous Legal Advice Act (Rechtsberatungsgesetz) and regulated the authorisation to provide extrajudicial legal services. In this article, we will look at the provisions relevant to mediators.<\/p>\n

The law was highly controversial from the outset. It is interesting and revealing to see how differently it was criticised. While some saw the new regulations as an unacceptable Competition protection for lawyers<\/strong><\/em> and saw the \"rigid barring of altruistic helpers\" as a removal from a citizen-friendly justice system, others saw the law as a End to the protection of litigants from unqualified \"quacks\"<\/strong><\/em>. It is helpful to keep this area of tension in mind in order to understand the following explanations.<\/p>\n

I. What does the Legal Services Act regulate? An overview<\/h3>\n

Four sections of the Legal Services Act are important to us: Sections 1, 2, 3 and 5.<\/p>\n

Protection of litigants: No legal services without authorisation<\/strong><\/p>\n

In \u00a7 1\u00a0 <\/span>RDG <\/b>The purpose of the Legal Services Act is explained in general terms: It serves to protect those seeking legal services from unqualified legal services.\u00a0<\/span><\/p>\n

In order to guarantee this protection, the Legal Services Act is designed as a so-called prohibition law with a reservation of authorisation. What this means can be seen from \u00a7 3 RDG. <\/b>Extrajudicial legal services may only be provided if there is a legal authorisation for this. Otherwise, legal services remain prohibited.<\/p>\n

But what does \"legal services\" mean? The battle over the so-called „lawyer monopoly“ is ignited and escalated by this term. Who is authorised to provide citizens with binding(!) legal advice – and not just information?<\/p>\n

What the legislator understands by a legal service is defined in Section 2 (1) RDG:<\/p>\n

\"Legal services are any activity in specific third-party matters as soon as it requires a legal examination of the individual case.\"<\/i><\/p>\n

Legal service = activity in a specific, third-party matter + requirement of a legal examination<\/p>\n

Sounds simple. But it is not. In practice, the categorisation: \"Legal services yes\/no?\" is rarely simple. The simple definition may be misleading here. In particular, the question of when an individual case requires a legal review or how the \"legal review\" is to be distinguished from the simple application of the law is sometimes highly controversial. No wonder, after all, the dispute over the concept of legal services is also a dispute over the scope of the lawyer's monopoly and affects the specific interests of an entire profession as well as all citizens seeking legal advice who wish to rely on the information provided in their particular case. This also explains why there were several amendments during the legislative process until the current definition in Section 2 (1) RDG was finally adopted. And now that the legal definition is in place, the battle continues in part in discussions about the interpretation of individual terms.<\/p>\n

\u00a7 Section 2 (3) RDG contains a negative demarcation and stipulates that the services listed there are not legal services.<\/p>\n

\"Legal services are not:\"<\/i><\/p>\n

This is followed by a list of activities that expressly do not fall within the scope of the Legal Services Act and to which the authorisation requirement therefore does not apply, e.g. the provision of scientific expert opinions, the activities of conciliation and arbitration boards, arbitrators, the discussion of legal issues affecting employees with their elected interest representatives, insofar as there is a connection to the tasks of these representatives, the Mediation and any comparable form of alternative dispute resolution(!), provided that the activity does not interfere with the discussions between the parties involved by proposing legal regulations<\/em><\/strong>the presentation and discussion of legal issues and legal cases in the media aimed at the general public, the handling of legal matters within affiliated companies (Section 15 of the German Stock Corporation Act).<\/p>\n

Protection of occasional providers of legal advice: No legal services without authorisation, except<\/i> ....<\/p>\n

Overall, the scope of application of the Legal Services Act is very broad in order to protect those seeking legal services. However, what protects some can become a real problem for many non-lawyer professions - there is hardly an area of life today that is not permeated by the law in some way. With such a far-reaching authorisation requirement, there would be a risk that some activities would be virtually impossible to carry out due to the ban. Uncertainty would be exacerbated, particularly in the social care professions.<\/p>\n

\u00a7 Section 5 RDG takes this circumstance into account and creates a balance by allowing legal services that are provided in connection with another (main) activity under certain conditions:<\/p>\n

\"Legal services in connection with another activity are permitted if they are ancillary to the profession or activity. Whether an ancillary service exists is to be assessed according to its content, scope and factual connection with the main activity, taking into account the legal knowledge required for the main activity.\"<\/i><\/p>\n

By granting a licence-free „annex competence“, the provision restricts the authorisation requirement of the RDG and thus complies with European and constitutional requirements: The protection of litigants is brought into an appropriate relationship with the freedom to provide services and the freedom of profession.<\/p>\n

\"\"<\/p>\n

Photo by Nik MacMillan<\/a> on Unsplash<\/a><\/p>\n

II.\u00a0 <\/span>Mediation and the Legal Services Act\u00a0<\/span><\/h3>\n

And what do the provisions of the Legal Services Act mean specifically for the activities of mediators?<\/p>\n

First of all, \u00a7 3 RDG Effects on the mediator contract<\/strong> <\/em>have. Mediator contracts that oblige non-lawyer mediators to provide legal services are void under Section 134 BGB. This means that the mediator does not have to provide services on this „contractual basis“, nor can he demand money from it. So far, so indisputable.<\/p>\n<\/div>

<\/i><\/div>

Mediation training<\/h2><\/a><\/div>
<\/div>
\n

Our training in mediation and conflict management in the business and labour world,<\/p>\n

headed by Prof Dr Sascha Weigel.<\/p>\n

New start each year in March and October.<\/p>\n

Register now for the next course!<\/p>\n<\/div>

<\/div>More information here...<\/span><\/a>
<\/div><\/div><\/div>
<\/div><\/div>\n

1. mediation \u2260 legal services (\u00a7 2 para. 1)<\/h4>\n

As already mentioned above, Section 2 (3) RDG contains a negative distinction from the concept of legal services. Under No. 4<\/strong><\/em> mediation is explicitly mentioned in the list. Legal services are therefore not:\u00a0<\/span><\/strong><\/em><\/p>\n

\"mediation and any comparable form of alternative dispute resolution\"<\/strong><\/em><\/p>\n

\u00a7 Section 2 (3) RDG initially has a rather clarifying function. This is because the fact that mediation is not a legal service is actually already apparent from the fact that the requirements of Section 2 (1) RDG are not met.<\/p>\n

2. mediation \u2260 legal services, except ... (\u00a7 2 para. 3)<\/h4>\n

More interesting is the restriction that follows in the second half-sentence of Section 2 (3) No. 4 RDG, according to which mediation is only not to be categorised as a legal service if,<\/p>\n

\"insofar as the activity does not interfere with the discussions of the parties involved by proposing legal regulations.\"<\/strong><\/p>\n

The traces of the battle for the lawyers' monopoly can also be found here. Similar to section 2 (1) RDG, section 2 (3) no. 4 RDG was also amended several times during the legislative process. For example, the restriction in the second half-sentence (\"if ...\") is primarily due to objections from the legal profession.\u00a0<\/span><\/p>\n

And here, too, the demarcation difficulties that we already know from Section 2 (1) RDG become apparent. The dispute over the Interpretation of the term \"legal review\"<\/strong> <\/em>in Section 2 (1) RDG is continued in a similar way two paragraphs further on. Only the Venue<\/strong><\/em> is a different one this time: What are \"legal regulatory proposals\" within the meaning of Section 2 (3) No. 4 RDG?<\/strong><\/em> And when is it merely legal information that does not require authorisation? Here too, the boundaries are disputed in detail.<\/p>\n

A tabular structure sometimes helps to provide an overview:<\/p>\n\n\n\n\n
\u00a7 Section 2 (1) RDG<\/b><\/td>\n\u00a7 Section 2 (3) RDG<\/b><\/td>\n<\/tr>\n
Legal review\u00a0<\/span><\/b><\/p>\n

(subject to authorisation)<\/p>\n

vs.\u00a0<\/span><\/p>\n

simple application of the law<\/b><\/p>\n

(licence-free)\u00a0<\/span><\/td>\n

\n

Proposed regulation<\/b><\/p>\n

(subject to authorisation)<\/p>\n

vs.<\/p>\n

mere legal information<\/b><\/p>\n

(licence-free)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

No regulatory proposal is a mere presentation of the general legal situation<\/strong><\/em>. But how \"pure\", how \"general\" must the presentation be so that it is not subject to authorisation? In any case, if concrete conclusions are drawn for the mediated parties, it is no longer mere legal information, but a regulatory proposal and thus a legal service requiring a licence within the meaning of the RDG.\u00a0<\/span><\/p>\n

\n

Example: In a family mediation, the presentation of which income and expenses are\u00a0<\/span>of the entitled and obligated parties are to be taken into account in principle when calculating a maintenance claim. The emphasis is on the word \"in principle\". This is because as soon as mediators carry out a specific calculation, they are providing a legal service (which requires a licence).<\/p>\n<\/blockquote>\n

However, if one interprets the term \"proposed regulation\" broadly, even the suggestion that it could be useful to draw on the suggestions of a model contract when organising the conflict qualifies as a legal service. This alone is already suitable for influencing the decision-making process in a certain direction. The same would then apply to the indication that certain legal requirements must be taken into account.\u00a0<\/span><\/p>\n

Other voices reject such a far-reaching restriction for non-lawyer mediators as unrealistic and unsuitable in practice. Some even argue that the restriction of section 2 (3) no. 4 RDG is largely irrelevant because the mediator can usually invoke the annex competence of section 5 RDG anyway. Is Section 2 RDG therefore nothing more than a side issue because of the provision of Section 5 RDG and the interpretation debates conducted here superfluous? As you can already guess, however, the provision of Section 5 RDG is anything but uncontroversial...<\/p>\n

3. legal services as an exception? (\u00a7 5 para. 1)<\/h4>\n

Are mediators allowed to provide legal services by way of exception on the basis of Section 5 (1) RDG? The scope of the provision is interpreted very differently, with the discussion focussing primarily on two conditions:<\/p>\n

Mediation as a profession: Is mediator (already) a profession?<\/i><\/strong><\/p>\n

\u00a7 Section 5 (1) of the RDG requires, among other things, membership of a \"professional or activity profile\". Opinions differ as to whether \"mediation\" can be characterised as a sufficiently well-defined profession or activity.<\/p>\n

In some cases, this is denied on the grounds that the term mediation conceals nothing more than a specific method. In view of the fact that mediation is carried out by lawyers, social pedagogues, notaries or psychologists, for example, there can be no question of a sufficiently clearly defined professional profile.<\/p>\n

Another view points to the clear intention of the legislator to interpret the provision of Section 5 (1) RDG broadly. Accordingly, a mediator can \"naturally\" invoke the provision if he has the relevant expertise or additional professional training. In fact, the official explanatory memorandum contains an indication that \"the legal part of the activity\" of a non-lawyer mediator may be permitted under Section 5 (1) RDG.<\/p>\n

Overall, however, it is not (yet) possible to speak of an independent, generalised job description of a \"mediator\".<\/p>\n

Main and secondary employment<\/strong><\/p>\n

Another prerequisite for annex competence pursuant to Section 5 (1) RDG is that the legal service is provided as an \"ancillary service\". Whether a legal service qualifies as an ancillary service depends on the criteria set out in Section 5 (1) sentence 2 RDG:<\/p>\n

In addition to content and scope, the factual connection with the main activity plays a role. Another decisive factor is whether and to what extent the main activity requires legal knowledge.\u00a0<\/span><\/p>\n

In principle, mediation can also be conducted without any legal knowledge. Accordingly, Section 5 (1) sentence 2 Mediation Act does not place any high demands on the training with regard to imparting special legal knowledge. However, subject-related areas of mediation have now developed in which basic legal knowledge is a prerequisite, such as business mediation and mediation in family or inheritance matters.<\/p>\n

The question of whether a legal service can be categorised as an ancillary service pursuant to Section 5 (1) can ultimately only be decided on a case-by-case basis, taking into account the specific mediation contract and the conflict to be dealt with. In order for the service Besides<\/i>In any case, if the main activity remains a service, it must be an activity that is fundamentally remote from the law. However, the boundaries are also fluid in this rather open question of judgement.<\/p>\n

However, if one assumes - contrary to some voices in the literature - that the profession is sufficiently well-defined, it is possible in principle for mediators to provide accompanying legal advice that is to be regarded as an ancillary service within the meaning of Section 5 (1) RDG and thus remains licence-free.<\/p>\n

III. The Final Agreement and the Legal Services Act<\/h3>\n
\n

The greatest uncertainty for mediators is brought about by the Legal Services Act in the context of final agreements.<\/em><\/p>\n<\/blockquote>\n

Finally, we come to the final agreement and thus to the subject area that is likely to cause the greatest uncertainty in practical work. What is permitted and what is not? Where does (pure) mediation end and where does legal services, which as such must be reserved for lawyers, begin?<\/p>\n

These issues were particularly hotly debated with regard to the final agreement. In the original drafts of the law, the phrases \"fixing of a final agreement\" and later \"recording of a final agreement\" were still expressly included in the catalogue of exceptions (\"legal services are not:\"). After significant criticism from the Bar Association, which warned against unqualified legal advice and saw the door open to \"charlatanry\", the relevant formulations were deleted.<\/p>\n

Based on the above and the principles set out above, the following can be said with regard to the closing agreement:<\/p>\n

The mere recording or mere reproduction of the points of agreement clearly does not constitute a legal service and can also be provided by non-lawyer mediators.<\/strong><\/em> This is already clear from the explanatory memorandum to the law, according to which the mediator may act as a \"minute-taker\".<\/p>\n

However, even the smallest suggestions and improvements to the wording can be problematic.<\/strong><\/em> For the most part, the mere taking of minutes is seen as the absolute limit of mediation that is still licence-free. According to this view, any assistance that goes beyond this (even if it is only a formulation aid) in a legally formative final agreement is regarded as a formulation proposal that may only be provided as a legal service by lawyers.<\/p>\n

But - of course! - a different, less strict view is also held here. The restriction of mediators to mere minute-taking activities in the final agreement is sometimes criticised as unrealistic and incompatible with the interests of the parties involved. After all, a \"typing pool\" could otherwise have been commissioned. Due to the annex competence of Section 5 (1) RDG, according to this view, non-lawyer mediators can therefore in principle also conclude final agreements if they have the corresponding competences. However, we have already mentioned that the matter of annex competence for mediators is not quite so clear.<\/p>\n

\"\"<\/p>\n

Photo by Patrik G\u00f6the<\/a> on Unsplash<\/a><\/p>\n

Conclusion<\/b><\/h3>\n

The limits of the Legal Services Act - <\/i>This blog post should have made it clear that these boundaries are rarely as clear as mediators and mediants would like them to be. The differing opinions in the commentary literature regarding the scope of the Legal Services Act and the interpretation of individual terms point to not inconsiderable legal risks for non-lawyer mediators. There are also hardly any clarifying judgements from case law to date.\u00a0<\/span><\/p>\n

In order to Personal liability<\/strong><\/em> Therefore, in order to avoid legal disputes, a certain degree of restraint is advisable for non-lawyer mediators when legal issues arise during mediation. This applies in particular to the final agreement, where the (still) permissible role of the mediator, who is not authorised to provide legal services, is particularly controversial in detail. In cases of doubt, mediators should therefore endeavour to involve external legal advisors in their own interests alone.<\/p>\n<\/div><\/div><\/div><\/div><\/div>","protected":false},"excerpt":{"rendered":"","protected":false},"author":3,"featured_media":2160,"parent":10,"menu_order":0,"comment_status":"open","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-2159","page","type-page","status-publish","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/pages\/2159","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/comments?post=2159"}],"version-history":[{"count":0,"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/pages\/2159\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/pages\/10"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/media\/2160"}],"wp:attachment":[{"href":"https:\/\/dev.inkovema.de\/en\/wp-json\/wp\/v2\/media?parent=2159"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}