Conciliation hearing at the labour court in Germany: procedure, tips and what to expect

Once an employee has filed a claim at the Labour Court (Arbeitsgericht), they will receive a summons to a conciliation hearing (Güteverhandlung/Gütetermin) relatively quickly. At this hearing, employee and employer present their positions, while the court tries to find an amicable solution. In this article we explain how a conciliation hearing works, how to prepare, which outcomes you might expect and how the proceedings continue after the hearing.

What is a conciliation hearing?

After a claim has been filed, the Labour Court schedules a conciliation hearing. The aim is to finalize the dispute between employee and employer quickly through a voluntary settlement agreement (Vergleich).

The conciliation hearing should take place within two weeks after the employee has initiated the proceedings.¹ In practice it usually takes longer depending on the workload of the respective Labour Court. The advantage of the conciliation hearing is that both parties can exchange their legal positions before a neutral Judge without long waiting periods.

At the conciliation hearing only the presiding judge is present.

A large number of disputes are already settled at this hearing.

How a conciliation hearing works 

Employee and employer receive a summons to the conciliation hearing. 

Before the hearing, both parties usually wait in the court corridor or sit in the public area of the courtroom. They meet with their lawyers or trade union representatives for a pre-hearing discussion. The employee can also attend the conciliation hearing without legal representation.

Calling the case

The presiding judge calls the case (e.g. Meyer vs. ABC Company). The parties then take their seats in front of the judge’s bench.

Confirming attendance

The presiding judge opens the hearing by confirming who is present. For example: “In the case of Meyer/ABC, the plaintiff (Kläger), Mr. Meyer, appears with his lawyer Mr. Schön, and for the defendant (Beklagte) the managing director, Mr. Schultz, with the lawyer Mr. Grün.“

Discussion of the facts and legal issues

The judge then gives the parties the opportunity to present their positions. Up to the conciliation hearing, there are usually no written statements on file apart from the claim itself. In a dismissal case, for example, the court usually has no information on the dismissal. For this reason, the employer (defendant) must first set out the reasons for the dismissal. After that it is the employee’s (plaintiff) turn. If anything is unclear, the judge asks follow-up questions and tries to clarify factual and legal issues.

While listening to the parties, the judge gets a first overview of the dispute. Example: In an action against an unfair dismissal (Kündigungsschutzklage), the presiding judge evaluates whether the Protection Against Unfair Dismissal Act (Kündigungsschutzgesetz) applies; whether the employer has issued a dismissal based on misconduct, incapacity or operational reasons; and which requirements the employer has to prove in the proceedings. The judge then discusses these points with both parties and explains the litigation risks for each side.

Proposal for a settlement agreement

Based on the factual and legal issues, the presiding judge makes a proposal for an amicable settlement of the dispute. Example: The presiding judge comes to a first assessment that the conduct-based dismissal is most likely invalid. Reasons: there are only minor breaches are minor and the employment has existed for a long time without any problems. In this case, the judge can suggest the following:

• The employer could withdraw the dismissal due to the low prospects of success, and the employment relationship continues by mutual agreement.
• In most cases, however, the judge will suggest the termination of the employment relationship against a severance payment. If the prospect of success for the dismissal is low, the judge will propose a higher severance pay, and vice versa. If the employee has been with the company for 10 years and the dismissal is most likely invalid, the judge will suggest a severance pay well above 0.5 of the gross monthly salary for each full year of employment, depending on the further circumstances of the case.

After the courts’ proposal there is a short break, so that the parties can discuss the various possibilities. 

Continuation of the conciliation hearing

After the break, the hearing continues:

• If the parties agree to the court’s proposal or to their own proposals, the court records the settlement in the minutes. The dispute comes to an end and the parties receive the written settlement agreement from the court. Both sides must fulfil their duties according to the agreement. If it is a dismissal case, the contents are similar to an out-of-court termination agreement (Aufhebungsvertrag). The parties should therefore be aware of all the advantages and disadvantages of such a termination agreement before entering into such court settlement.
• If the parties do not reach an agreement, the proceedings continue. More on this in the chapter below (“Proceedings after the conciliation hearing”).

Conduct at the conciliation hearing 

There is no obligation to have a lawyer at the conciliation hearing. In most cases, however, we advise not to represent yourself. If an employee cannot afford legal representation, there are the following options:

• Legal protection insurance (Rechtsschutzversicherung): The employee can ask their legal protection insurer whether they will cover the costs. If no policy is in place, the employee van enter into one. But in most cases there are waiting periods. 
• Legal aid (Prozesskostenhilfe, PKH): The employee can apply for it at the court. Depending on the individual financial situation of the employee, the court will ask for full or part-repayment.
• “No-win-no-fee” agreements: In certain cases we also cover the legal and court costs in the first instance against a fee. Only if the employee wins they have to pay an agreed share. For more details, you can get in touch with us.

If none of these options apply, here are some tips on how to prepare for a conciliation hearing:

Good preparation

• The employee should come to the hearing well prepared. They should make a list of all the points that are important to them and that they want to raise with the court during the hearing. 
• In addition, they should know which goals they want to achieve (in a dismissal case, for example: continued employment? severance payment? amount?).
• The employee should bring all relevant documents. This depends on the points in dispute. The employee should always bring the employment contract and the most recent pay slips along. In dismissal cases, this also includes the dismissal letter, any written warnings (Abmahnungen), notes of conversations, written promises and so on.

Conduct during the hearing

• At the hearing, the employee should be calm and concentrate on the facts. This can be difficult when the employee is emotional and feels “unfairly treated”. It always helps, though. While employers are explaining their position, the employee should take notes so that they do not forget important points later on. 
• The employee should wait until his turn. It always helps and makes a better impression, if the employee is calm and informs the court of the relevant points.
• Listening attentively is important so that the employee can form a picture of how the presiding judge assesses the issues and risks. 

Settlement negotiations

• If settlement negotiations take place, the employee should first prepare an overview of which claims against the employer are still outstanding. The content of a court settlement in case of a dismissal is similar to that of a termination agreement. When preparing, employees should therefore get an overview of the possible content as well as the advantages and disadvantages.
• Since a conciliation hearing lasts no more than 20 to 30 minutes, things move very quickly. If the employee is unsure about the content of a settlement or about what has just happened, they should ask the presiding judge for clarification. 
• In addition, the employee can reserve the right of revocation (Widerrufsrecht) which must be written into the settlement. This means that until the revocation period expires, they can reconsider the content and seek legal advice from a lawyer or trade union.

Personal attendance

In most cases, the court orders the personal attendance of the parties. Employee and employer should be present so that the court can clarify questions about the facts directly with the parties. In addition, both parties should be present during settlement negotiations. 

If the court has ordered the personal attendance, the employee and employer must appear at the conciliation hearing. If they cannot attend, they must inform the court in advance. The court can then reschedule the hearing or, if a lawyer attends, the hearing can take place without the party. 

If a party does not appear and fails to give notice of absence, the presiding judge can refuse to admit a legal representative. 

If neither the employee nor their lawyer appears, the court can issue a default judgment (Versäumnisurteil) at the conciliation hearing. This means that no conciliation hearing takes place. The court rejects the employee’s claim by judgment. An employee can object against such judgement. 

Costs of a conciliation hearing 

No court costs are charged for the conciliation hearing itself. However, the employee must pay his own legal fees. For more on this, see the article “Costs of an action against an unfair dismissal”. The same applies to the legal fees of the employer, regardless of the outcome.

Proceedings after the conciliation hearing

A majority of the cases are finalized at the conciliation hearing. If the dispute cannot be resolved at the conciliation hearing, the presiding judge schedules a chamber hearing (Kammertermin):

• At the chamber hearing, there is the presiding judge and two lay judges (ehrenamtliche Richter), one from the employee and one from the employer side. 
• Before this hearing, both sides must set out their positions in writing and provide evidence. 
• Between the conciliation and chamber hearing, several weeks or months may pass. This depends on the workload of the respective court. The average duration is around 6 to 12 months.² 
• At the chamber hearing, the parties may still enter into a settlement agreement or the Labour Court will decide by a judgment.

There are also other options, although these are rare in practice:

• A second conciliation hearing can take place, if both parties agree.³
• A chamber hearing can take place immediately after the conciliation hearing if both parties apply for it. The dispute can then be decided after that hearing.⁴ This is rare.
• Mediation proceedings (Güterichterverfahren): In very extensive and difficult disputes, the presiding judge can refer the parties to a so-called mediation procedure after the conciliation hearing. The mediation judge has more flexibility in resolving the conflict. The proceedings can often be finalized quicker.⁵

Frequently asked questions (FAQ)

1. Section 61a ArbGG ↩︎
2. Statistischer Bericht – Arbeitsgerichte – 2023 – Statistisches Bundesamt ↩︎
3. Section 54 subsection 1 ArbGG ↩︎
4. Section 55 subsection 3 ArbGG ↩︎
5. Section 54 subsection 6 ArbGG ↩︎