Romanian Mediation System
Judge Sanda Elena Lungu
Craiova Court of Appeals
Trained mediator
Member of the Craiova Mediation Center Association
E-mail:
INTRODUCTION
The first initiatives to promote mediation in Romania goes back to 1996, when the Foundation for Democratic Change, in cooperation with the Canadian International Center for Applied Negotiation (CIIAN) implemented a project targeting the use of mediation in the Romanian judicial system, a project involving more representatives of the legal-related professions and of the Ministry of Justice.
During the following period, the Ministry of Justice, used the funds provided by the Open Society Soros Foundation to implement mediation as an alternative method to justice and, consequently, a legislative proposal on mediation started to be considered. It is important to underline that, ever since that moment until the present day, the Ministry of Justice has shown a constant concern to cooperate and consult with the civil society representatives in the field of mediation and mediator profession.
In the 1999 – 2000 period, the Ministry of Justice carried out a mediator training program, supported by the American Bar Association through the CEELI program and implemented a project in cooperation with the Foundation for Democratic Change which included a pilot program on promoting and implementing mediation within Sector 3 Law Court in Bucharest.
In 2000 the first law draft on mediation was initiated by the Ministry of Justice, a project strongly opposed mainly by the lawyers acting as parliamentarians. The idea of mediation as a solution to improve the quality of justice and to relieve the courts was included on the list of Romania’s commitments to the European Union though, yet with no express specification whether it was to be as legal framework or just as a regulation specifically referring to the application of mediation in relation to the law courts only.
In 2005, the Parliament was submitted several other law drafts on mediation and mediator profession which did not have the sufficient number of votes and support from the Parliament.
In May 2003, the ‘pilot mediation center’ by the Court in Dolj County and Craiova Law Court was set up by Order of the Minister of Justice, while its Organization and Operation Rules were approved by Order No. 2683/16.09.2003; at the same time, the ‘Craiova Mediation Center’ Association has been established. The Mediation Center started to operate since November 2003 by organizing mediation sessions for cases submitted from Craiova Law Court and mediator training sessions addressed to lawyers as major target-group.
The main non-governmental organizations the Ministry of Justice kept permanent consulting process on mediation and mediator profession legislation with were as follows: Foundation for Democratic Changes, Pro Medierea Association, Mediation and Community Security Center Foundation, Iasi, ‘Craiova Mediation Center’ Association, Union of Mediation centers in Romania, Professional Mediator Association (A.M.P.), Romanian Training Institute Association and ALMA-RO Association. .
The lobby of these non-governmental mediation associations in the 2000 – 2006 period was permanent and approached the specialized commissions in the two chambers of the Romanian Parliament.
In May 22nd, 2006 the Law no. 192/2006 on mediation and organization of the mediator profession was published in the Romanian Official Journal. It is this law which brings, for the first time, clarifications on the place of mediation within the dispute / conflict resolution, the role and obligations of the mediator in conflict settlement, how to access mediation services and who can act as a mediator. The real start in building up a unitary mediation implementation system in Romania was enabled only by adopting the Law no.192/2006 on mediation and organization of the mediator profession. It is to underline that this form of the said law, which was contributed by representatives of civil society as well, is the fifth law draft version on mediation since 2000 on.
The law has been formulated, promoted and, later on, adopted in support of mediation as defined by the normative documents adopted at European level and states the same principles as formulated in the EC Recommendations.
In accordance with art.1 in the Law no. 192/ 2006 (as it has been changed by Law no. 370/2009):
(1) Mediation represents a modality to resolute conflicts amicably, with the help of a third party specialized as a mediator, under neutrality, impartiality and confidentiality conditions.
(2) Mediation relies on the trust of the parties in the mediator, as a person capable to facilitate negotiations among parties and to support the same in settling their conflict by identifying a mutual convenient, efficient and durable solution.
Thus, mediation is included in the alternative dispute resolution (ADR) system, maintaining its amicable character, ensuring full confidentiality of the discussions between the parties and the mediator.
Further, under art. 2 in the law, another essential aspect of mediation is approached, i.e. volunteer basis appeal to mediation, leaving enough room to use mediation in any of the dispute phases / stages, meaning before, during or after a court trial.
„Unless the law provides otherwise, the parties, legal and natural entities, can appeal to mediation on volunteer basis, including after the initiation of a trial in front of competent courts, and thus agreeing to settle any conflicts in civil, commercial, family, penal or any other matters, as provided in this law.”
As concerns mediation during a civil trial, in the case that litigation has been submitted to a court for judgment, then its settlement by mediation can be achieved at the initiative of the parties or at the recommendation of the Court, if agreed by the parties. At the end of the mediation session, the mediator is bound to inform the Court with the result of mediation. In case an agreement has been reached, the Court might, on the request of the parties, pronounce a decision based on the negotiation between parties, and shall decide on the reimbursement of the stamp fees, on the request of the parties (when the case).
The changes made to the Law no.192/2006 by the Law no. 370/2009 were necessary to comply with the Directive 2008/52/EC of the European Parliament and of the Council. So it states that the agreement of the parties may be made enforceable by the court or the public notary. Also, parties are bound to enforce their agreement if the internal law impose it for the validity of this act.
Unfortunately, the change made to the Law no.192/2006 in December 2009 has no mentions about the effect of mediation on limitation and prescription periods requested by the Directive.
A strong point of the Romanian mediation law are the provisions about penal mediation.
Mediation in penal matters shall not be possible to be compelled to any of the parties, unless both parties accept it. Mediation shall be achieved by guaranteeing the right of each party to legal assistance or services of an interpreter.
Government Emergency Ordinance no. 51/2008 on public judicial assistance in civil matters enacts assistance from the state to ensure the right to a fair trial and to guarantee equal access to the justice act. The Ordinance states that:
- ‘provided that the person who meets the required conditions […] brings evidence that have, prior to the beginning of the trial, passed through a litigation mediation process, shall benefit from the reimbursement of the amount paid to the mediator as a fee. The same right is applicable to the person who meets the required conditions and asks for mediation after the trial started, but before the first day of appearing before the Court.’ (Art. 20);
- ‘should the application requiring judicial public support for settlement belongs to the category which can be subject to mediation or any other alternative resolution, the judicial public support application may be rejected if the applicant has refused such a proceeding prior to the beginning of the Court trial.’ (Art.16, paragraph 2).
The Mediation Council – www.cmediere.ro
In order to ensure the organization of the system, a profession self-management autonomous entity has been created which carries out public interest activity as an outcome of the Law no. 192/2006. This entity is the Mediation Council, made up of 9 persons as authorized mediators and 3 alternate members, elected by vote of all the authorized mediators. Within a 2-year mandate, the Council members assume the regulation responsibility in the area of mediation, mainly aiming at ensuring the quality of the mediation action and building a coherent mediation utilization system in Romania.
The first members of the Mediation Council have been validated by Order no. 2220/C of Ministry of Justice on October 6, 2006.
As concerns the operation of the Mediation Council, art.19 in the Law no.192/2006 states as follows:
1) The Mediation Council shall meet on monthly basis or whenever it is necessary, as called by its president.
2) The meetings of the Mediation Council shall be public, except for the case when its members decide otherwise;
3) In performing its competences, the Mediation Council shall be able to adopt decisions, based on the votes of the majority of their members.
4) Guests from any other institutions or professional structures whose consultation is required to take measures or adopt decisions of the Mediation Council shall be invited to participate.
The competences of the Mediation Council are also defined by the Law, in its art. 20, such as:
• To promote mediation activity and to represent the interests of the authorized mediators;
• To elaborate training standards in the area of mediation, based on the best international practices;
• To approve basic and continuous professional training programs of mediators and programs for specialization);
• To prepare and update the list of authorized training providers of mediators,
• To authorize mediators in accordance with the provisions in the current Law and in the Council’s Regulation;
• To prepare and update the panel of authorized mediators;
• To keep records of the authorized mediator offices;
• To monitor the observation of the mediation training standards;
• To deliver all the documents who certifies mediators professional competence;
• To adopt the Ethics and Professional Deontology Code for authorized mediators, as well as their disciplinary liability norms;
• To take measures to ensure the observation of the Ethics and Professional Deontology Code for authorized mediators and implementation of their disciplinary liability norms;
• To submit proposals to complete or to correlate the legislation on mediation, as the case might be;
• To adopt the organization and operation rules;
• To organize the election of the next Mediation Council, as provided the law;
• To fulfill any other tasks as stated by the law;
The main normative acts elaborated so far by the Mediation Council are:
• Ethics and Professional Deontology Code for Mediators, published on the Mediation Council website;
• Organization and Operation Rules of the Mediation Council (opened to public debate), published in the Romanian Official Journal, Part 1, on July 27, 2007;
• Mediator Training Standard, published in the Romanian Official Journal, Part 1, on October 22, 2007;
• Disciplinary liability Norms for authorized mediators, published on the Mediation Council website;
• Practical Guide to go through the mediator authorization proceeding, published on the Mediation Council website;
• List of authorized mediation training providers, published on the Mediation Council website;
The Mediation Council is the only institution with competence in approving the form of exercising the mediator profession and to keep records of existing mediators. The mediator authorization process started in 2007 as a two-staged process. The first stage consists in submitting an evaluation application, along with a file containing documents demonstrating that the respective person fully meets the provisions stated under art. 7 and art. 72, paragraph (2) in the Law no.192/ 2006, while the second stage consists in submitting an application stating the specific form of mediation the respective person wishes to exercise.
For the first stage, most of the applications have been submitted by persons trained as mediators before the occurrence of the mediation law, through various programs, in the country or abroad; later on, the authorization proceeding for those trained by authorized training providers in accordance with the provisions of the Law no. 192/2006 started. Statistically, there were 1397 authorization applications submitted at the Mediation Council up to July 15th, 2008 out of which 53 were rejected in September 2008. The current Panel of Mediators includes 1050 authorized mediators (the first Panel of mediators made public in June 2008 listed 301 mediators).
The authorized mediators are listed in a Panel of Mediators, published in the Romanian Official Journal, on the Mediation Council website and which is to be distributed to all Courts, as well as to any other mediation interested institutions. The Mediator Panel is updated on monthly basis, after meeting of the Council on approving new mediators.
The Mediator
The success of mediation mostly relies on the trust parties place on the mediator.
According to the provisions of art.7 in the Law no. 192/2006 as it was changed by Law no. 370/2009, “any person may become a mediator provided that the respective person meets the following conditions:
(a) he / she has full work capacity;
(b) he / she has university education;
(c) he / she has an at least 3-year professional experience;
(d) he / she is medically able to practice mediation activities;
(e) he / she enjoys good reputation and has no permanent conviction for committing intentional crimes, likely to affect the prestige / status of mediator profession;
(f) he / she graduated mediator training courses, complying the laws, or a post-university master program in mediation accredited in accordance with the in force laws and approved by the Mediation Council;
(g) he / she has been authorized as a mediator in compliance with the provisions in this Law”.
Mediation is a profession opened to a large category of people, not only to lawyers but allows the parties to be assisted by lawyers.
The changed Mediation Law provides the conditions for a citizen of European Union or of the European Economic Community to be recognized as a mediator in Romania in base of his/her document who attesting mediation competence and the conditions for a Romanian citizen to be recognize as a mediator in EU and EEC.
Mediator has a multidisciplinary training. It is based on knowledge and skills previously developed but also on completely new knowledge and skills, specific for mediation, at minimum compulsory level as required by the Occupational Standards. First of all, being a mediator means a professional option which relies on the will to contribute to the social progress. In this respect, the mediator is a person constantly oriented towards self-improvement and in a permanent professional development process. The mediator Ethic and Deontological Code binds the mediator to act in that direction while the Mediation Council keeps in line with the international trend to compel the mediator to demonstrate his / her in-service training by attending a minimum number of training hours every years.
Currently, there are eight organizations approved by the Mediation Council to hold mediator training courses.
In according the Romanian Mediation Law, mediator training courses can be organized by the Universities (especially master courses), but them needs Mediation Council approval. This additional approval is necessary since mediation is a distinct profession, other than the one that master degree is organized for.
The information available at the Mediation Council shows that the University’s curricula limit to providing mere academic knowledge and are not able to ensure the development of the skills included in the Mediator Occupational Standard. This is the good reason why the Mediation Council has not assumed the responsibility to validate the training of master degree graduates, unless the respective curricula have been previously approved by the Council, and implicitly, to include such graduates in the authorized mediator category.
According to the data provided by the members of the Mediation Council, before the occurrence of the Mediation Law, in 2006 there were 3000 mediations in Romania, with a 70% success rate for the matters where the parties accepted to participate in at least one mediation session. After that moment, there are not official statistics available about the number of mediations held in Romania.
Note: the main source for this presentation is “Strategy on Mediation and Mediator Profession Development in Romania for 2008 – 2013”, approved by the Mediation Council in September 2008[/size]
