The moderated contract

• Applicant: Privatdozent Dr. Tim Husemann
• Subject Area: Public Law
• Term: from 2021 to 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 462268963

There are three ways to solve a conflict. By judgment, by contract or by mediation. At the end of mediation there is a moderated contract. This is the subject of my investigation and named after the moderator's activity. Characteristic for the moderation is that it only has a few characteristics. How exactly the mediation takes place is not covered by statutory regulations. This statement could be proven through the analysis of the legal requirements relating to different situations of moderation. However, two permanent characteristics of the moderation activity could be formulated. Firstly, the requirement of neutral mediation and secondly, the function of the moderator as a so-called "guarantor of self-determination".The consequences of the moderator's participation are ambivalent. On the one hand, he has an - in the legal system unique - interest in the conclusion of the contract. This does not refer to a specific content of the contract, but only to the fact that a contract - regardless of its content - is concluded at all. This interest entails a systemic danger for the compliance with the neutrality requirements.On the other hand, in the case of neutral mediation, the guarantor position of the moderator increases the legitimacy of the moderated contract compared to contracts concluded without a moderator. This is because in the case of a moderator contract, the legitimacy of the contract is strengthened by procedures.The basis for legitimation remains the self-determination that legitimates the contract. It is increased by the moderator, for example by having a similar effect on the moderated contract as the presence of trial observers has on the court decision.Due to the moderator's participation, an increase in legitimacy is achieved by adding the legitimizing forces of the judgment, which Luhmann described as the secret theory of the trial. The moderator also reinforces the treaty mechanism described for the bilateral treaty, the correctness of which also legitimizes the treaty.Since neutral mediation is the basis of the increased legitimacy of the moderated contract, the question had to be answered as to whether and how the moderator's adherence to neutrality is legally secured. The result is surprising: The moderated contract is not protected against a (hidden) violation of the moderator's duty of neutrality. Then again, it is the moderator's particular interest which would require special protective mechanisms.In order to develop an adequate legal response, the Mobile System (Bewegliches System) of the moderated contract was created, which contains the essential evaluations that make up the moderated contract. On this basis, the proposal could be formulated to create a withdrawal right for those moderated contracts where the moderator does not mediate neutrally.

• DFG Programme: Publication Grants