Mediation and Public Law

The importance of mediation in administrative law, applied as an instrument for dispute resolution, is growing constantly. Mediation could be regarded as a cooling down mechanism, which, although increasingly recognized, is still considered exotic in Austria. The results and characteristics of processes carried out show already the potential of mediation as a legal instrument. It can also be seen from the ambitions of the legislator, which are shown for example in the recently amended UVP-G 2000 promoting the increased use of solution oriented and consensual descision-making devices, that the legislator supports this means of dispute resolution. In order to reach this goal, it has to be considered where the mediation processes stand in the current legislation, where de lege lata their legal limits are and what has to be done to ensure a predictable degree of certainty of law. Whereas scientific research concerning mediation in some select topics such as marital or criminal issues do exist, literary references for alternative dispute resolution in areas of public law can be hardly found. A dogmatic and political study concerning mediation does not exist at all. It is the aim of this project to explicate the main differences between existing methods of legal processes and mediation. Empirical results from previous processes will be employed to evaluate the advantages and disadvantages of this method, and to determine how competent authorities then deal with the decisions reached through a mediation process. It has to be asserted which possibilities in the Austrian legislation exist in order to include mediation results in the political-administrative system of decision making. Furthermore, the project will take into consideration that mediation parties as well as third parties which are not involved in the mediation process have to be guaranteed legal protection, and that, if necessary, steps towards legislative change will have to be taken.

The importance of mediation in administrative law, applied as an instrument for dispute resolution, is growing constantly. Mediation could be regarded as a "cooling down mechanism", which, although increasingly recognized, is still considered exotic in Austria. The results and characteristics of processes carried out show already the potential of mediation as a legal instrument. It can also be seen from the ambitions of the legislator, which are shown for example in the recently amended UVP-G 2000 promoting the increased use of solution oriented and consensual descision-making devices, that the legislator supports this means of dispute resolution. In order to reach this goal, it has to be considered where the mediation processes stand in the current legislation, where de lege lata their legal limits are and what has to be done to ensure a predictable degree of certainty of law. Whereas scientific research concerning mediation in some select topics such as marital or criminal issues do exist, literary references for alternative dispute resolution in areas of public law can be hardly found. A dogmatic and political study concerning mediation does not exist at all. It is the aim of this project to explicate the main differences between existing methods of legal processes and mediation. Empirical results from previous processes will be employed to evaluate the advantages and disadvantages of this method, and to determine how competent authorities then deal with the decisions reached through a mediation process. It has to be asserted which possibilities in the Austrian legislation exist in order to include mediation results in the political-administrative system of decision making. Furthermore, the project will take into consideration that mediation parties as well as third parties which are not involved in the mediation process have to be guaranteed legal protection, and that, if necessary, steps towards legislative change will have to be taken.