Mediation procedure
The Mediation Committee is a body comprising equal numbers of members from the German Bundestag and the Bundesrat. It consists of 16 Members of the German Bundestag and 16 members of the Bundesrat.
The representatives of the Bundestag are determined according to the relative strengths of the parliamentary groups. Each Land appoints one of the representatives from the Bundesrat. The members of the Committee enjoy complete freedom in reaching their decisions and are not bound by instructions of any kind.
It has proved to be the case in the past – and it will probably prove to be so in future – that the Mediation Committee tends to be called upon more frequently if the political majority in the Bundesrat is not the same as in the Bundestag.
Joint search for compromises
However, experience also shows that legislative items are only lost in a small proportion of the cases in which the Committee is convened. Usually, a compromise is reached, with both sides making concessions to each other, even if this sometimes only comes at the end of long negotiations.
This is precisely the purpose of the mediation procedure: to modify the bill in question in such a way that the Bundestag and the Bundesrat are equally able to give their consent to the reworked version. The result of these efforts is the "compromise proposal" submitted by the Mediation Committee to the Bundestag and the Bundesrat.
In the Mediation Committee, the constitution therefore provides for a body that effectively limits the danger of legislative paralysis. In practice, the Committee functions as a forum where compromises are hammered out between the Bundestag and the Bundesrat.
Variations in the mediation procedure
The Mediation Committee has three options when it puts forward a compromise proposal: the rejection of the bill, its amendment or its confirmation without amendment as originally adopted.
In the first two cases, the Bundestag must again decide on the act. If it agrees to the rejection of the bill, the legislative procedure has failed. If it votes for the proposed amendments, the act goes before the Bundesrat once more.
When the Mediation Committee proposes the confirmation of an act as previously adopted, the legislation is submitted to the Bundesrat again. If the Bundesrat then votes for the act, it may enter into force; if the Bundesrat rejects the act, the further procedure depends on whether it is a bill that requires the consent of the Bundesrat or a bill to which the Bundesrat may lodge an objection.
Principle of consensus
An objection lodged by the Bundesrat may be rejected in the Bundestag by either an absolute or two-thirds majority of all its Members, depending on the size of the majority by which the objection was adopted. In contrast, where a bill requires the consent of the Bundesrat, the proposal is lost if the Bundesrat refuses its consent.
Nevertheless, if this situation arises, the Bundestag and Federal Government may for their part demand the convention of the Mediation Committee and so set the mediation procedure in motion once again.
Article 77 of the Basic Law, which contains all the crucial provisions in this respect, underlines the political principle of consensus in the German constitution: the aim is agreement on the basis of reciprocal concessions rather than mutual confrontation, blockades and political paralysis.
