Options Concerning Implementation of Mediation in Public Law

A direct comparison of legal norms governing mediation in Germany with those in place in Austria reveals two quite distinct strategies for employing mediation as an instrument in the public sphere. In Germany, in the wake of recent efforts aimed at `privatising` administrative proceedings, mediation now functions as one of the key instruments for economising legal proceedings. In Austria, by way of contrast, mediation is not seen as a state task and hence does not (and indeed cannot) play a comparable role in the `functional privatisation` of proceedings. Issues pertaining to the integration of mediation into politico- administrative proceedings (licensing procedures, planning processes) along German lines have not been dealt with in the Austrian literature so far. Considering that a more thoroughgoing development of mediation as a policy instrument is widely seen as desirable (if not imperative), and considering that a sound basis for dealing with these new issues pertaining to integration already exists in the form of a preceding project (`Mediation im öffentlichen Bereich`), a closer analysis of the differences between German and Austrian models, with a special emphasis on options for progressively developing Austrian law in this area, is called for. The main aim of such a continued analysis, based on the results (pertaining to interfacing and integration) obtained so far, would be to answer the following questions: 1) How did the German legislator react to political and economic demands for an acceleration of legal proceedings in light of the availability of mediation as an instrument for fostering acceptance? 2) What day-to-day changes have administrative bodies and public officials encountered by the introduction of mediation into administrative proceedings? 3) What is the legal status of the mediator (`Verwaltungshilfe` versus `Beleihung`) and what are the legal consequences of such a status (e.g. is the mediator subject to the issue of directives)? 4) Is the integration of a mediator into administrative proceedings legally possible under current Austrian law? (This question would need to address both Austrian Public Law and academic debates pertaining to administrative issues.) 5) Is it at all possible to integrate mediation into politico-administrative proceedings without sacrificing mediation`s core principles, rendering it a `toothless` instrument? 6) What must be done in order to make mediation an integral part of administrative proceedings and procedures regarding the issue of regulations?

A direct comparison of legal norms governing mediation in Germany with those in place in Austria reveals two quite distinct strategies for employing mediation as an instrument in the public sphere. In Germany, in the wake of recent efforts aimed at `privatising` administrative proceedings, mediation now functions as one of the key instruments for economising legal proceedings. In Austria, by way of contrast, mediation is not seen as a state task and hence does not (and indeed cannot) play a comparable role in the `functional privatisation` of proceedings. Issues pertaining to the integration of mediation into politico-administrative proceedings (licensing procedures, planning processes) along German lines have not been dealt with in the Austrian literature so far. Considering that a more thoroughgoing development of mediation as a policy instrument is widely seen as desirable (if not imperative), and considering that a sound basis for dealing with these new issues pertaining to integration already exists in the form of a preceding project (`Mediation im öffentlichen Bereich`), a closer analysis of the differences between German and Austrian models, with a special emphasis on options for progressively developing Austrian law in this area, is called for. The main aim of such a continued analysis, based on the results (pertaining to interfacing and integration) obtained so far, would be to answer the following questions: 1. How did the German legislator react to political and economic demands for an acceleration of legal proceedings in light of the availability of mediation as an instrument for fostering acceptance? 2. What day-to-day changes have administrative bodies and public officials encountered by the introduction of mediation into administrative proceedings? 3. What is the legal status of the mediator (`Verwaltungshilfe` versus `Beleihung`) and what are the legal consequences of such a status (e.g. is the mediator subject to the issue of directives)? 4. Is the integration of a mediator into administrative proceedings legally possible under current Austrian law? (This question would need to address both Austrian Public Law and academic debates pertaining to administrative issues.) 5. Is it at all possible to integrate mediation into politico-administrative proceedings without sacrificing mediation`s core principles, rendering it a `toothless` instrument? 6. What must be done in order to make mediation an integral part of administrative proceedings and procedures regarding the issue of regulations?