Importance of Judicial Communication in Civil Proceedings in Germany

Abstract

Two fundamental changes were introduced into civil procedure law at the beginning of XXI century with respect to the obligation of a judge to give directions and strengthening of the position of a mediator judge, meaning the authority of a judge to influence the parties to judicial proceedings and drive them to a settlement agreement. As a result of two new regulations the communication was strengthened both between a judge and the parties and the parties themselves. Hence, the role of a judge is no more limited only to leading the proceedings in accordance with established procedure and adoption of a well-reasoned decision, based on substantive law. A judge has more intensive communication with the parties before the resolution of a dispute, be it through a court decision or a settlement agreement reached between the parties.

This paper is an attempt to describe the main consequences of the new regulations and explain the new role of a judge.

The paper offers the justification that the terms of reference of a judge should be redefined through the expansion of the scope of his activities, what becomes particularly important in the sense of impartiality. The expanded scope of activities of a judge bears certain risks as well: on the one hand a judge is required to have direct communication with the parties and on the other - the parties are entitled to refuse this communication with a view to protection of their own interests - for instance, when a judge offers settlement conditions to the parties generating negative attitude of the parties towards him in doing so. The law offers a solution - to involve a dispute-reviewing judge and a mediator judge as different persons at different phases of case proceedings.

The paper will also discuss the financial benefits of judges' decisions based on party consensus.