Romanian mediation act ideas

Has the Romanian Mediation

Act got ideas that should also

be implemented in Belgium ?

Nicoleta Munteanu

Monday 10th of February 2014

PAST PRESENT FUTURE

Content:

THE PAST

In 2003, the Ministry of Justice, in partnership with the US Embassy,

developed a pilot project in Craiova, a project which we can be

considered as the starting point of the mediation in Romania.

As a prerequisite for Romania’s accession to the EU, the

implementation of mediation process in Romania was regulated by

Law 192\2006.

There have been multiple subsequent amendments to this Law, meant

to eliminate the obstacles found in practice and to provide the best

context for the mediation activity.

Therefore, the first amendment is passed in 2009 as Law 370, followed

by Ordinance 13\2010 designed to adapt those perspectives inspired

from other Member States’ legislation to our own.

THE PAST

The so-called “Small Reform” Law no. 202/2010 has brought some

improvements on the procedure of information on mediation.

This was the moment when this new profession - the mediator – has

gained more and more visibility as an opportunity for both parties: the

legal system and the citizen.

The first panel of authorised mediators was published in 2008 by the

Mediation Council, the Romanian competent authority, including

about 1000 de persons with special training in this field. During the

previous years, the number of authorised mediators has increased

considerably, reaching the amount of 10,000 and still going on.

THE PRESENT

Starting from 2010 and so far, all the efforts have been taken to

improve this procedure used to settle disputes, as an alternative to a

slow legal system.

The high level of steps taken to consolidate this activity occurred on 15

February 2013, when the information meeting on mediation became

mandatory, with the enactment of a new regulation by GEO no. 4 from

January 2013 and the New Civil Procedure Code came into force.

Since February 15th 2013, the court has to request the parties to show

interest in attending the information meeting on mediation

advantages in all civil lawsuits pending at that moment.

The summons inadmissibility sanction came into force on August 1st

2013, gradually substituting for the fine which the magistrate could

use as a penalty tool.

THE PRESENT

The incumbency of the information meeting on mediation stipulated

under Law 115/2012 also specifies the special situations when the

procedure prior to the law court must be followed: consumer

protection, family law (divorce, partition, parental rights, etc),

relationship of proximity (litigations on possession, definition of

property boundaries, relocation of borders, etc), professional liability,

especially malpractice and labour litigations. In case of civil litigations,

the meeting is mandatory if the litigation value is less than 50,000 lei.

The participation in the information meeting is supported by an

information certificate released by the mediator following both

parties’ presentation at this first meeting.

According to the law, this first meeting is free of charge, save for

situations when the mediator is entitled to charge logistic expenses.

THE PRESENT

Although the legislative modification initially included the mediation

incumbency, namely penal litigations, when the New Criminal

Procedure Code came into force, this measure was abrogated by Law

no. 255/ August 2013, considering that the Romanian society still has

to prepare to accept such a provision generally deemed to favour the

transgressor.

The more successful mediation cases are advertised, the more

mediation education programmes are implemented for the youth,

together with social support programmes for persons with low income

to access a mediator’s services and to go through the mediation

meetings, the sooner citizens (litigants) will grow more confident and

will opt for this variant without being forced by the law court to do so.

This phenomenon is already registered in other states.

THE PRESENT

Most of the parties, attending such mandatory information meetings,

understand the advantages offered by mediation:

�lower costs;

�less time;

�protection of the relationship between the parties and third parties

with regard to complete confidentiality guaranteed by the mediator,

etc.

and choose to go forward with this procedure as the participation

certificate is no longer a priority, the said certificate being materialised

in a mutually advantageous and durable mediation agreement

sanctioning the parties’ agreement.

THE PRESENT

Attending mediation prior to bring a lawsuit helps the parties to state

their cases to a neutral and specialised person (or more persons, in

case of co-mediation). In many instances, the simple opportunity for

the parties to present their part of the truth to a person willing to

listen clearly opens the way to a settlement between the parties.

In the previous years, Romania registered a considerable increase of

mediation activity. If the mediation agreements concluded in 2010

were no more than / around/ about 500 per year, on a national level,

in 2013 there are tens of thousands of mediation agreements

concluded.

The Mediation Council and the Ministry of Justice initiated a

cooperation protocol which aimed at preparing real statistics related

to the number of mediation cases which would go to court, their

subject according to categories of litigations and settlement method,

be it partial or complete.

THE FUTUREA mediation meeting successfully concluded will generate the

mechanisms to prevent potential future conflicts.

Law no. 214/2013 introduces new elements, meaning that that

information procedure on mediation advantages can also be

performed free of charge by the magistrate, prosecutor, legal

counsellor, attorney, notary, with a written report in this respect.

Considering all of the above, I am very positive with regard to

mediation in Romania in the following years, 2014 being the year of

litigations amicably settled outside the court.

In the future, I also anticipate, just like the attorneys, there shall be a

specialisation of mediators in various fields: commercial, civil, family,

etc. Although the Romanian mediators have various backgrounds:

legal, economic, technical, medical etc., the skills and competences

required to exercise the mediator profession exceed any limits set by

the basic profession which must definitely be doubled by vocation and

commitment.

THE FUTUREAlthough the Romanian mediators have various backgrounds: legal,

economic, technical, medical etc, the skills and competences required

to exercise the mediator profession exceed any limits set by the basic

profession which must definitely be doubled by vocation and

commitment.

However, we must not disregard the quality assurance for mediation

services and we include the ongoing professional training of mediators,

promoting the mediation activity, active, transparent and effective

information of litigants and the reinforcement and development of the

professional body for mediators consisting of professional

associations’ representatives.

It would be extremely useful to prepare flexible common programmes

for ongoing training or skill tests to be taken periodically by specialists,

in order to maintain the quality of services according to the market

requirements and legislative amendments and to increase the

consumers’ confidence in the professional capabilities.

THE FUTURE

Continuous training is regarded as a general obligation but also as a

right able to offer a real answer to the need for professional training,

equally focused on the particular needs of each professional….

On 20 January 2014, the European Parliament Committee on Legal

Affairs presented an impact study named “Rebooting” the mediation

Directive: assessing the limited impact of its implementation and

proposing measures to increase the number of mediations in the EU.

The basic proposal resulting from the study is the following: legislative

intervention to introduce, not just to permit, a minimal mandatory

mediation model, at least for some categories of cases.

In April 2013, the European Parliament launched a series of proposals

to execute a comparative study on the implementation of the

framework directive 2008/52/CE on mediation.

THE FUTURE

The aim of the study was to obtain national-level feedback from the EU

Member States on the experience gained from transposing the

Directive into the national legislative systems and the identification of

reasons why mediation is not used more often in domestic and cross-

border disputes.

Therefore, a European-level questionnaire had been launched to

establish the impact of the legislation currently in force in the Member

States and of the potential legislative solutions and non-legislative

proposals.

The questionnaire had been answered by 816 respondents throughout

the European Union and we can consider that in Romania the

European spirit or the European citizenship awareness is growing

stronger because Romania had the largest number of respondents,

specifically 210, followed by Greece with 91 respondents, Italia with

87, Luxemburg and Slovenia coming in the last position with 5

respondents each.

THE FUTURE

More than 5 years after the enactment of the framework directive,

despite multiple benefits offered by mediation in civil and commercial

cases, it is still used for less than 1% of cases in the EU. At the same

time, in the comparison between the costs involved by court litigation

and the mediation costs, the study indicates that mediation costs are

60% lower.

This study had been performed because of the failure to reach the

target set in the first article of the directive, specifically: facilitate

access to alternative methods to settle disputes and promotion of

amiable settlement of disputes by advocating the use of mediation and

provision of a balance ratio between mediation and judiciary

procedures.

THE FUTURE

Italy is the only country where mediation is mandatory before

resorting to judiciary procedure for particular disputes. At the same

time, France is currently testing mandatory mediation in particular

fields and many other countries, including Romania, stipulated the

incumbency of attending information meetings on mediation. Other

countries established financial incentives rather than incumbency, in

order to encourage the mediation.

Legislative propositions

The only measures proved useful in generating

mediation represent a combination of the:

�mandatory information meetings;

�mediation incumbency for particular categories of cases

and

�mediation incumbency in specific cases with opt-out

possibility.

Current legislative approaches tend to provide an

insufficient promotion of mediation:

�Confidentiality protection level does not affect

significantly the number of mediations as confidentiality

is guaranteed even in countries with less than 500

mediations per year.

•The courts’ invitation to mediate also has generated a

low number of mediations.

�The easy mediation agreement approval procedure

cannot be considered a reason for the mediation not to

operate, or the fact that parties are not encouraged to

mediation because of an overcomplicated and/or long

procedure to approve the agreement.


�The national accreditation systems for mediators also

do not seem to be a factor which would discourage the

parties to confide in mediation, as the systems received

positive appreciations.

�Many countries, such as Bulgaria, Latvia, Lithuania,

Romania or Spain, offer incentives to those who choose

mediation, however this measure has failed to increase

the number of people resorting to this alternative

dispute settlement.


�In Romania, for example, we can think of the deduction

of 50% for the stamp duty in case of litigations on

transfer of title or other rights upon one or more real

estates or partitions, should the litigation be settled by

mediation. Such incentive would be an important

element given to the economic crisis but cannot be

considered a singular mediation generating element.

�Online mediation is basically inexistent in most

Member States, but even where there is online

mediation it is not frequently used.

�In Member States where the law binds attorneys to

inform their clients about mediation, high mediation

numbers are not owed to this reason alone.


In a detailed data analysis, the study indicates that a

minimal mediation incumbency would be more

appropriate.

It specifically considers two mandatory mediation forms:

� mandatory participation in information meetings and

� mandatory mediation with opt-out possibility, should

the parties desire to discontinue the procedure.

Apparently, the second alternative has registered the

most positive reactions from respondents’ side. The

subsequent opt-out possibility would also provide

unlimited access to justice.


The study seems to support a model of mandatory

mediation which enforces the parties to use this

method, namely case categories, before accessing the

judicial system. At the same time, sanctions for failing to

attend mandatory mediation meetings are regarded as

having a positive effect by most respondents in the EU.

The study concludes that at legislative level there are

two possible action methods:

1.EU legislators should consider the establishment of

mandatory mediation for particular categories of cases

with opt-out possibility.

2.The EU should assert the “Balanced Relationship

Target Number Theory”, which would not involve

legislative modifications.


Each of the Member States, by means of pro-mediation

internal policies, should establish a clear target number

to represent a minimum percentage of mediations per

year.

In the light of policies which have proved to be effective

in generating mediation in the EU, all Member States

may tend to select similar policies.

This method to harmonise legislation would become

closer to the laissez-faire (non intervention) policy, which

would be applied more to the private sector policies or

to market economy elements, with a minimum

regulation involvement on European level.

Instead of enforcing a mediation development pattern,

the study enforces a target theoretically already stated

by the framework Directive, the method to reach such

target and balance for each of the Member States.


Non-Legislative propositions

� Establishment of a programme for mediation promotion and

education in Law Schools;

� Development and implementation of pilot projects;

� Development of an “Agreement Week” European level programme;

� The increase of “mediation commitment” on European level for

members of particular industries;

� Appointment of mediation champions or ambassadors on national

level;

� Establishment of an EU Agency for Alternative Dispute Settlement

in order to promote mediation;

� Establishment of an uniform mediator accreditation system on EU

level.

Non-Legislative propositions

Although these measures are considered to have a positive

contribution in the mediation development, most study participants

consider it very unlikely for elements, other than regulation to

generate a significant increase of mediation.

The impact study conveys the message that the most efficient method

to put mediation on the EU map of disputes, might consist of better

regulation to go further than simply inviting the parties to meet at the

mediator first. There is a belief on European level related to the

importance of bringing the parties to the negotiation table at least to

consider the mediation alternative.

THANK YOU!

Romanian mediation act ideas

Law

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