On 22 May 2006, Law No. 192/2006 on the mediation and organisation of the mediator profession was published in the Romanian Official Journal. It is this law that brings, for the first time, clarification on the place of mediation within dispute or conflict resolution, the role and obligations of the mediator in dispute resolution, how to access mediation services and who can act as a mediator.
To transfer the provisions of Directive 2008/52/EC of the European Parliament and of the Council regarding certain issues of mediation in civil and commercial cases into Romanian law, the Parliament adopted Law No. 202/2010 on measures to accelerate settlement of lawsuits, which modified the Civil Procedural Code and the Penal Procedural Code. Mediation is now included for the first time in the two procedural codes as an alternative method of settling disputes. After 147 years, a new Civil Code came into force in Romania on 1 October 2011 and a new Civil Procedural Code on 15 February 2013. Both have included specific provisions on mediation and other alternative dispute resolution methods.
Neither the codes nor Law No. 192/2006 concerning mediation and organisation of a mediator’s profession include reference to cross-border mediation. All the legal provisions in this matter are applicable for both domestic and foreign mediation. (See Sanda Elena Lungu, Constantin Adi Gavrilă.)
To ensure the organization of the system, the Law No. 192/2006 established an autonomous body that develops a public interest activity. This is the Mediation Council, consisting of 9 people authorized as mediators (and 3 alternate members) appointed by the vote of the authorized mediators, with a 2 year mandate.
The Council members undertake the regulatory responsibility in the field of mediation, and mainly, they ensure the quality of the act of mediation and the construction of a coherent system for the use of mediation in Romania.
Regarding the functioning of the Mediation Council, Art. 19 of Law no. 192/2006 provides: ”
(1) The Mediation Board meets once a month or whenever necessary, as convened by the President.
(2) The meetings of the Mediation Council are public, except when its members decide otherwise.
(4) In exercising its powers, the Mediation Council adopts decisions by majority of votes of its members.
(5) In the meetings of the Mediation Council people from any other institution or professional body may be invited to take part if their consultation is required in order to take action or to adopt the decisions of the Mediation Council.”
The main responsibilities of the Council are also defined by the law (Art. 20): it promotes the mediation activity and represents the interests of authorized mediators, in order to ensure the quality of services in the field of mediation, in accordance with the law; it develops training standards in the field of mediation, on the basis of international best practices in this field; it authorizes the initial and continuing training programs, and also the mediators specialization programs; it develops and updates the list of training providers for the mediators who have been authorized; it authorizes mediators, as provided by this law and by the procedure established by the organization and functioning of the Regulation of the Mediation Council; it cooperates, by the Information System in the domestic market, with the competent authorities of other Member States of the European Union, the European Economic Area and Swiss Confederation to ensure the control of mediators and of the services they provide, in accordance with the provisions of Emergency Government Ordinance no. 49/2009; it develops and updates the list of authorized mediators; it keeps the evidences of the offices of authorized mediators; it monitors the fulfilment of educational standards in the field of mediation; it publishes documents to prove the professional qualification of mediators; it adopts the code of ethics and professional conduct of authorized mediators and standards of disciplinary responsibility thereof; it takes steps for the fulfilment of the provisions of the code of ethics and professional deontology of authorized mediators and administers the standards regarding their disciplinary liability; it makes proposals to apply or to correlate the legislation on mediation; it adopt the rules regarding its organization and functioning; it organizes the selection for the next Mediation Council, as provided by law; it undertakes any other action stipulated by the law.
The Mediation Law No. 192/2006 stipulates, among other things, that a mediator has the following obligations: to deliver any explanations to the parties related to the mediation process, so that the parties clearly understand the purpose, limits and effects of mediation; to ensure that mediation is achieved in full respect of the freedom, dignity and private lives of the parties; to conduct the mediation process impartially and ensure a constant balance among the parties; and to refuse to take over a case, if he or she is aware of any circum¬stance that might prevent him or her from being impartial and neutral, as well as if he or she finds that the rights concerned cannot be subject to mediation, in accordance with article 2.
The mediator is also bound to keep confidentiality over the informa¬tion obtained throughout his or her the mediation process, to observe the deontological norms and to respond to the requests from the judi¬cial authorities, in accordance with the provisions of article 32 of the Romanian Mediation Law and to constantly improve his or her knowl¬edge and mediation skills by attending in-service or continuous training courses, under the conditions and requirements as defined by the Mediation Council.
The disciplinary liability of Romanian mediators are engaged for the following misconducts: breach of the obligation of confidentiality, impartiality and neutrality; refusal to provide answers to requests made by the judicial author¬ities, in the cases stipulated by law; refusing to return the documents entrusted to the parties in conflict; representing or assisting one of the parties in judicial proceed¬ings or arbitration proceedings having as object the conflict under mediation; and committing any other acts that affect professional integrity.
The Romanian Mediation Council approved the Code of Ethics for Romanian Mediators and managed the handling procedure of complaints from mediation users. Romanian mediators are not required to have professional liability insurances, although this service is provided by the insurance compa¬nies, as well as being accessed by some mediators.
The professional body for mediators in Romania brings together 4376 mediators accredited by the Romanian Mediation Council.
The mediator profession in Romania can be practised only by indi¬viduals who have acquired the capacity of authorised mediator, under the national accreditation scheme and in compliance with the provisions in the Romanian Mediation Law.
A mediator can be any individual who meets the following requirements: is fully qualified to practise; has a university education; has at least three years’ work experience; is medically able to perform this activity; has a good reputation and has not been convicted of an intended offence likely to affect the reputation of the mediator profession; has graduated in mediator training courses or a relevant master’s degree level post-university programme, accredited in accordance with the law and approved by the Mediation Council; and has been authorised as a mediator, under the conditions stated in the Mediation Law.
Romanian Mediation Law, under article 8, regulates all the conditions for foreign mediators interested in working permanently or occasionally in Romania according to which citizens of EU member states, of the EEC or of the Swiss Confederation who are holders of a document certifying their capacity and qualification as a mediator (obtained in any of the above states), shall – under the right to residence context – have access to this profession in Romania, after such qualification documents shall be acknowledged by the Mediation Council, in accordance with Law No. 200/2004 on the acknowledgement of professional diplomas and quali-fications for the professions regulated in Romania, as later on modified and added. Mediator qualification documents obtained in any other state other than Romania, of the EU, the EEC or Swiss Confederation by the citizens listed above shall be acknowledged in accordance with the provisions under article 8, paragraph 5, applicable accordingly. If the abilities and knowledge do not meet the qualification requirements as stated in Romanian laws, the Mediation Council shall consider the professional experience of the applicant and can ask the applicant to demonstrate that he or she meets all such professional requirements. According to article 8, paragraph 5, the citizen of a third country, who graduates in mediator training courses abroad or who acquired medi¬ator capacity abroad and wishes to permanently perform mediation activity in Romania, shall get access to this profession provided that he or she presents the education titles, accompanied by the validation certificate issued by the Ministry of Education and Research and he or she presents the contents of the completed training curriculum, including the training duration, and, as the case may be, the documents demonstrating his or her acquired capacity as a mediator.
The Mediation Council shall evaluate the contents of the presented training curriculum, including the training duration, comparing the knowledge and abilities certified by such documents in accordance with the Romanian legislation and shall decide, if the case, the access to this profession. The validation or compensation requirements of the applicant qualification if his or her certified knowledge and abilities do not correspond to the qualification requirements as stated in the Romanian legislation, shall be defined based on the regulations stated under article 17, paragraph 2. Moreover, the foreign citizen mediator may perform mediation activity in Romania occasionally, under the form of a service providing activity, based on a document certifying that he or she legally performs this profession in the country he or she is orig¬inated from, thus being exempted from the authorisation and listing on requirements, as stated in the laws. Nevertheless, in such a case, the person concerned must notify the Mediation Council in writing about carrying out this activity in Romania. Romanian mediators are required to undertake 20 hours of contin¬uous professional development every year. There is no specific training in conflict resolution for the Romanian judges. From 2011, the National Institute of Magistracy organized, in base of a Protocol of collaboration closed with GEMME Romanian Section, two days courses about mediation. Courses are held in the continuous training of judges schedule by judges, members of GEMME-Romanian Section.
Mediation/conciliation is always voluntary. According to the Romanian Mediation Law, there are some situations regulated by law when the session of information about mediation advantages held by an authorized mediator is required under the sanction of rejecting the claim as inadmissible. The judge can recommend to the parties to attend a session of mediation, but the parties will decide if they will follow it or not.
The agreement to mediate is called the ‘mediation contract’ under Romanian Mediation Law. Holding mediation sessions before signing a mediation contract is forbidden. The mediation contract must be concluded between the mediator, on the one hand, and the parties under conflict or dispute, on the other. According to article 45 of the Romanian Mediation Law, the mediation contract should include, under the sanction of nullity, the following clauses: the identity of the parties under the conflict or dispute or of their representatives, as the case may be; a description of the type or subject of the conflict or dispute; a statement of the parties showing that the parties have been informed by the mediator about mediation, its effects and appli¬cable rules; the obligation of the mediator to retain confidentiality and the deci¬sion of the parties to retain confidentiality, depending on the case; the commitment of the parties under conflict or dispute to observe the rules applicable to mediation; the obligation of the parties under conflict or dispute to pay the due fee to the mediator and the expenses made by the same during mediation for the interest of the parties, as well as the down payment and payment modalities of such amounts, including a situation when the mediation procedure is waived or fails, as well as the share to be borne by each party, considering – depending on the case – the social situation of the parties. Unless otherwise agreed, the amounts shall be borne by the parties in equal amount; the agreement of the parties regarding the language mediation is to be performed in; the number of copies in which the agreement is to be prepared, if the agreement shall be in written form, and depending on the number of the signing parties of the mediation contract; and the obligation of the parties to sign the minutes prepared by the mediator, regardless of the outcome of the mediation. The mediation contract must be concluded in writing, under the sanction of absolute nullity.
Parties are free to choose their own mediators. Where only one party submits the request for mediation, the mediator shall send a written invitation to the other party to accept mediation, indicating a maximum 15-day period to respond. The invitation is sent using any delivery means likely to confirm receipt of the text. The applicant shall provide the medi¬ator with all the necessary information to contact the other party. If one of the parties is unable to meet the mediator when invited, the mediator, at the request of the other party, can decide on a new date and notify the other party of the change. If the mediation is accepted, the parties in conflict or dispute will sign an agreement with the mediator. If one of the parties gives explicit written refusal for mediation, does not respond to the invitation or fails to meet with the mediator twice in a row at the stated deadlines for signing the mediation contract, then mediation can be considered as not accepted. Holding mediation sessions before signing a mediation agreement (or mediation contract) is forbidden.
If a mediator is aware of any circumstance that might prevent him or her from being impartial and neutral, he or she has an obligation to refuse this case. The mediator must immediately inform the parties of any conflict of interest occurred before or after his or her appointment, such as prior advice to one party in the same or other matters, member of a law firm advising a party in the same matter or a personal relationship.
If, during mediation, a situation likely to affect its purpose or the neutrality and impartiality of the mediator arises, he or she shall be required to notify the parties of it, who will then decide whether to continue or terminate the mediation contract. The mediator shall have the right to end the mediation procedure, acting according to the relevant provisions of the mediation law. In this case, the mediator is required to return part of the fee under the terms established in the mediation contract.
Parties are free to choose a mediator from the official panel of accredited mediators delivered by the Mediation Council, without any stipulation. This panel is available in the courts and also on the Mediation Council’s website, which is also responsible for publishing the panel in the Official Journal twice a year. The courts and the judge are not allowed to assist parties in the appointment of a mediator, and it is not common to seek assistance from institutions or other official bodies.
The mediator has the right to receive a fee, decided by negotiation with the parties, as well as reimbursement of the expenses from the mediation process. The fee should be a reasonable amount and should consider the nature and the subject of the dispute. Unless otherwise agreed, the mediation fees are borne by the parties in equal share.
The mediation contract represents an executor title as concerns the obligations of the parties to pay the due fee to the mediator by the due dates. Since mediation is a private service, there are no official fee scales that must be used by the mediator and the parties; each service provider is free to decide on the fee by using fee scales or by individual determi¬nation for each case.
Where the subject of the mediation presents difficult or controver¬sial legal or juridical aspects or aspects related to any other specialised fields, the mediator may, based on the consent of the involved parties, ask for the opinion of an external specialist in the respective field. When asking for the standpoint of an external specialist, the mediator shall present only the controversial issues, without revealing the identity of the parties (article 55 of the Mediation Law). There are no legal provisions or information from mediation practice regarding the participation of other persons in mediation as witnesses, but they are more likely to play the role of catalyst should they assume a constructive role.
According to the Mediation Law, each mediator has the right to use his or her own model to organise the mediation procedure, by observing the dispositions and principles stated in the law (self-determination, neutrality, impartiality, confidentiality and informed consent).
Also, there is a certain level of legal procedural requirement for invitations sent to the parties, documents for signing (eg, mediation agreement) and special provisions for court-related cases or juridical areas (eg, family or criminal law). Parties can request joint or separate mediation services from a mediator. Where only one party submits a request for mediation, the mediator shall send a written invitation to the other party to accept mediation, indicating a maximum 15-day period to respond. The invi¬tation is sent using any delivery means likely to confirm receipt of the text. The applicant shall provide the mediator with all the necessary information to contact the other party. If one of the parties is unable to meet the mediator when invited, the mediator, at the request of the other party, can decide on a new date and notify the other party of the change. If the mediation is accepted, the parties in conflict or dispute will sign an agreement with the mediator. If one of the parties gives explicit written refusal for mediation, does not respond to the invitation or fails to meet with the mediator twice in a row at the stated deadlines for signing the mediation contract, then mediation can be considered as not accepted.
In Romania, holding mediation sessions before signing a mediation agreement or contract is forbidden.
According to the mediation training standard applicable to all mediation training providers and courses, the minimum stages of the mediation process are as follows: consent or agreement to mediate and preparation of the mediation session; introduction of the mediation process and definition of its rules; identification of problems; exploration of interests and problems; generating options; conclusion of the agreement; and closing the mediation session. Setting out mediation ground rules is common practice between Romanian mediators. If the parties reach an agreement, according to the law they can decide whether they want it written up, except for certain types of cases where it is required (eg, property cases).
In cases when the subject of the mediation presents difficulties or controversial legal or juridical aspects or aspects related to any other specialised fields, the mediator may, based on the consent of the parties involved, ask for the opinion of an external specialist in the respec¬tive field. There are no special considerations for international mediation proceedings.
As a rule, prescription does not begin to flow, and, if it began to flow, it would be suspended. According to article 2532, point 6 of the Civil Code, the prescription period is suspended if the negotiations between the parties are held no earlier than six months before the expiry of the prescription period. According to point 7 of the same article, if the negotiations are held according to a contractual clause or within a preliminary legal proce¬dure, the prescription is suspended for a maximum of three months. If parties only attend an information session on the mediation procedure and its advantages without starting a mediation procedure this does not suspend the limitation period for a court claim.
Until now, it has not been the norm to insert a mediation clause in a contract and there are no special requirements for such clauses. If a mediation clause is included in a contract and the parties ignore it, the judge cannot refuse to hear the case for that reason. According to the Romanian Mediation Law, ‘in any convention relative to the rights that the parties may enjoy, they may bring a mediation clause, whose validity shall be independent from the validity of the contract to which they are parties.’ Thus, there are no court decisions referring to escalation clauses.
Professional secrecy is recognised equally as being both a right and a primary and fundamental duty of the mediator.
According to the law, the mediator cannot act as a witness in a hearing concerning the facts or documents, he or she is aware of from the mediation procedure. All the information provided and obtained during the mediation procedure by the parties in dispute shall have a confidential character to third parties and cannot be used as evidence for judicial and arbitral procedures, except when the parties agree otherwise, or the law states the contrary.
The mediator cannot be heard as a witness related to his or her deeds or to the instruments that he or she took note of within the mediation procedure. In criminal cases, the mediator can be heard as a witness only if he or she has the prior, express and written agreement of the parties and, if applicable, of the other interested parties. A witness’ capacity is primary as compared with that of a mediator, with regard to the facts and circumstances that he or she knew before becoming a mediator in that particular case. In all cases, after being heard as a witness, a mediator can no longer perform mediation process in that particular case.
One of the exceptions from the mediator’s obligation to keep confidentiality is provided for in the Mediation Law, in particular in the section about family cases where it is provided that, if during mediation, the mediator notes any facts that jeopardise the normal growth or development of a child or severely affect his or her best interests, he or she shall be bound to notify the relevant authority. The obligation to keep confidential any information taken down during the mediation and the documents drafted during mediation even after the mediator retires is also stipulated in Law No. 192/2006 (article 32), as well as in a mediator’s code of ethics and professional deontology. From a disciplinary point of view, the mediator can be held liable if he or she breaks these rules.
When the mediation procedure is closed for a case that is also pending in a court of law, the mediator is bound in any case to deliver to the judge the original and electronic form of the mediation agreement and the signed statement of mediation closure if the parties reached an agreement, or only the signed statement of mediation closure if the mediation closed before settlement or without any settlement.
Under the Romanian Lawyers Law, all the lawyers must inform their clients about alternative dispute resolution but is no sanction if they don’t do that. In practice, it’s not commune for lawyers to advise their clients to participate to mediation/conciliation. The parties have the right to be accompanied by their lawyers, according article 52 from the Mediation Law. In practice, lawyers are encouraged by judges or mediators to accompany their clients in mediation and in the majority of cases they do that.
In 2011 and 2012 were published the single selection of cases solved by mediation, that include around 200 cases in all the matters: civil, commercial, family, administrative or labour cases. The selection was made by the judges of GEMME-Romanian Section and includes comments on the agreements, the solutions adopted from the judges and the legal provisions that were applicable.
Kind of disputes that can be subject of mediation in family law; in case of civil law; in case of criminal law; in case of commercial law; in case of administrative matters.
In Romania, all these types of causes can be subject to mediation.
According to Law no. 192/2006 concerning mediation and organization of a mediator’s profession, can be settled by means of mediation any conflicts or disputes occurred in civil, commercial, family, penal matters, in conflicts concerning the rights the parties can dispose of, within the labour conflicts, as well as in any other matters, under the conditions stated in the Mediation Law. The same Law is applicable in the consumer protection sector, in case the consumer invokes the existence of a prejudice as a result of purchasing certain deficient services or products, in case of failure in observing contract provisions or granted warranties, in case of existence of certain abusive clauses included in the contracts concluded between consumers and the economic agents or in case of infringements of certain rights stated in the national or European Union legislation regarding the consumer protection sector.
For example, mediation is compatible with virtually all areas of business activities, with the exception of the insolvency or the situations in which the public order standards were violated. Mediation is beneficial for all types of disputes in which social and commercial relationships can be preserved. Whether there are monetary claims, preservation of relationships between business partners, compensations of any kind or the fulfilment of a contract, mediation provides adequate solutions, being preferable to an imposed court decision.
The benefits for the companies that have used the mediation procedure for solving a conflict are numerous. First, there are financial benefits: in the case of a dispute related to a certain amount of money, the parties can reach a viable agreement, which will be respected by both parties in accordance with their present and future needs and interests. Second, the duration of the mediation procedure is short. Unlike the judicial trial, which can last for several months or even years, the duration of the mediation procedure is measured in hours, days, weeks.
The desire not to have negative publicity, in case a dispute may produce image damage, is also another reason why companies resort to mediation. Other reasons include the desire to maintain business relationships with the business partners, the lowest cost of the mediation process compared to the conventional legal costs, the flexibility of the procedure regarding the place and the time for the sessions, the e-mediation, etc. are not to be overlooked.
In Romania, there are no statistical data on the duration of the mediation procedures or legal requirements in this regard. A mediation procedure that ends with a mediation settlement can be conducted in a few hours, at most a few days if more appointments are planned. Thus, it may take a few days from the beginning of the case until its conclusion, if one also takes into account the fact that we must make the voluntarily agreement between the parties enforceable. In the case of legal proceedings, the resolution of the conflict will take months (exceptionally) or years.
No. In Romania, mediation is not mandatory because the Constitutional Court has twice quashed attempts to introduce mandatory elements. In 2014 (Decision no 266), the Court ruled unconstitutional a requirement to attend a mediation information session before trial. Among other reasons, the judges wrote that imposing the requirement - not even an attempt at settlement, but a mere information session - and the related sanction of case inadmissibility when failing to meet the requirement, impose an unreasonable burden on litigants.
The Court found that, “although both the national legislation, namely Law no. 192/2006 and the Code of Civil Procedure [the final sentence of Article 227 (2)], and Directive 2008/52/EC of the European Parliament enshrined mediation as a voluntary, alternative and informal procedure, article 2 (1) of Law no. 192/2006 provided that the parties were obliged to attend the information session on the advantages of mediation, under the penalty of inadmissibility of the legal action, established by paragraph (1²) of the same article. So, although mediation is optional, the information session on the advantages of mediation is mandatory.
The impugned regulation, i.e. Article 2 (1) of Law no. 192/2006, under which the parties were obliged to go through the procedure of information on mediation, rebutted the irrebuttable presumption “nemo censetur ignorare legem”. If the law, in this case the Law no. 192/2006, with all its amendments, is published in the Official Gazette of Romania, according to the same adage, the citizens benefit from a presumption of knowledge of the law. Therefore, a special procedure of information is not justified with respect to the content of such a law. It is obvious that this obligation, established under any sanction, not only under that of the inadmissibility of the application, is contrary to Article 21 of the Constitution, which stipulates that no law may restrict the exercise of the free access to justice. The obligation to participate in the information session about the advantages of mediation represents a restriction of the free access to justice as it becomes a filter for the exercise of this constitutional right and, by the sanction of inadmissibility of the legal action, this right is not only limited, but even banned. As there may be situations in which legal or natural persons want conflict resolution to be conducted exclusively by the trial court, the Court held that the impugned regulation did not allow them to assess for themselves whether or not they needed this information. Free access to justice is the right of every person to address a court of law in order to defend his/her rights or use of his/her legitimate interests. Any restrictions on that right, however small, must be duly justified, by considering to what extent the disadvantages caused by it do not outweigh the possible advantages. Both in the case-law of the Constitutional Court and in the case-law of the European Court of Human Rights it is stated that “ its mere legal enshrining, even at supreme level, by the Constitution, is not such as to ensure also its real efficiency, while, in practice, its exercise faces barriers. Therefore, access to justice must be ensured effectively and efficiently” (see, for example, Decision of the Constitutional Court no. 670 of 18 May 2011, published in the Official Gazette of Romania, Part I, no.421 of 16 June 2011).
Consequently, the Court considered that the mandatory preliminary procedure of information on the advantages of mediation appeared as an obstacle to the citizen’s rights to obtain justice. Furthermore, a procedure consisting of the information on the existence of a law is undoubtedly in breach of the right of access to justice, which puts a inappropriate burden on the individual, especially since the procedure is confined to a simple information obligation, and not to the effective attempt to settle the conflict through mediation, so that parties’ participation in the information session before the mediator is a formal one. In light of the above stated, the Court found that the obligation imposed on the parties, natural persons or legal persons, to attend the information session on the advantages of mediation, under penalty of inadmissibility of the legal action, was unconstitutional and contrary to the provisions of Article 21 of the Constitution.”
In September 2018 (Decision no 560), a new legislative attempt was made, one that would have simply required mediation in certain cases before trial.
The Constitutional Court found that "the obligation imposed on parties to try to resolve the dispute through mediation, even when parties want the dispute to be solved exclusively by the courts, appears to be a hindrance for the citizens to protect their rights in the court and is contrary to the ruling of the Constitutional Court in Decision no.266 from 7 May 2014. The provisions of Article I point 10 of the law subjects to constitutional review - which amends article 43 par. (2¹) of Law no. 192/2006 – are contrary to article 147 par. (4) and article 21 of the Constitution. The Court also held that even imposing this conduct to the parties, using the phrase "will try", without being followed by a sanction or judge' order, in case the parties do not attempt to settle the dispute through mediation, it determines an unclear and imprecise character of the criticized rule, which does not comply with article 1 par. (5) of the Constitution."
Mandatory mediation information can be defined as the obligation made to the parties in a court context to be informed about mediation. The more comprehensive the information, the easier the potential litigant will be able to make a decision (advantages, cost, process, length, etc). The scope of the requirement can vary. For example, claimants can be required to complete a questionnaire stating that they have received information on mediation prior to the filing of the claim or parties must attend an informative meeting on mediation before choosing judicial resolution.
In the European Union, in five Member States, mediation is mandatory in some fields. For example, in Italy mediation is mandatory in a broader range of litigation, while in Hungary and Croatia only in family law. Other Member States impose sanctions as a mean of encouraging the use of mediation. In Hungary there are penalties for parties, that having concluded a mediation agreement, still address the court or no longer meet their obligations under the mediation agreement. In Ireland sanctions are imposed for refusal to resort to mediation. In Italy a party that have prevailed in the contentious proceedings cannot recover costs when rejected a proposal for mediation with the same solution as the decision of the court. In Poland, when a party has consented in advance to participate in a mediation procedure and then unfoundedly refuses to take part, the court may decide that the party must pay the costs, irrespective of the outcome of the case. In Slovenia the court may require a party who refuses unfoundedly to participate in a mediation session in court to pay all or part of the costs for the opposing party.
In Germany, there are two types of judicial mediation: mediation in connection with the court and mediation conducted by the court. Mediation conducted by the courts was introduced by the Law on Mediation. Also, in 2012 judicial mediation has been introduced in the Code of Civil Procedure. Both mediation in connection with the court and the mediation conducted by the court have been very successful, especially in matters of family law disputes. In Greece alternative methods of dispute resolution have been recognized and promoted by the Greek legislator in the Civil Procedure Code and other special laws. In 2010 the Law on Mediation was adopted in order to implement Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters. Two years later, the Code of Civil Procedure was amended with Article 214B which provides that judicial mediation shall be conducted only by judges.
This method of dispute resolution is a voluntary one and is conducted by judges. In every court of first instance and Court of appeal in the country, one or more senior judges are appointed mediators full or part-time, for a term of two years, renewable for another year. Resorting to judicial mediation can take place before a trial is initiated or during it, when parties or their lawyers can file a written request to that effect. During the trial court may invite the parties to use judicial mediation at any stage of the proceedings. Once the parties agree, the court shall stop the proceedings for a period not exceeding six months. Judicial mediation procedure contains hearings, separate and joint discussions between the parties' lawyers and the judge- mediator who can offer to parties’ suggestions on the dispute.
Also, in Recommendation Rec (2002)10 on mediation in civil cases, the Committee of Ministers is convinced of the benefits on regulation of specific rules for mediation, a process in which "a mediator" assists the parties to negotiate on the dispute and reach a joint agreement. This Advisory Committee points out that, even if the parties make use of mediation, access to a court has to remain open, since it constitutes the ultimate guarantee for the protection of rights of the parties. Here it is stated that, when organizing mediation, States should pay attention to the need to avoid delays without necessity and use of mediation as a tactic to delay the process. Mediation may be particularly useful where judicial procedures themselves are less appropriate for the parties, especially given the costs, the formal character of the judicial proceedings or where there is a need to maintain dialogue or contacts between the parties.
Consultative Council of European Judges stated in Opinion no. 6 (2004) on a fair hearing in a reasonable time and the role of judges in this process, in terms of alternative means of dispute resolution, that both in criminal and in the civil or administrative cases the mechanisms of alternative dispute resolution should be closely associated with the judiciary. Relevant legal provisions or court practice should offer to the judge the power to redirect the parties to a court-appointed mediator, that has demonstrated relevant skills and qualifications, as well as impartiality and independence for such a public service. Consultative Council of European Judges pointed out that judges can act as mediators, since this allows the parties to benefit from their legal knowledge. However, it is necessary to maintain impartiality in particular by ensuring that they fulfil this task in disputes other than those assigned to them.
Compulsoriness of mediation and its requirements were subject for analysis of national Constitutional Courts. Some of these Courts have concluded that the lack of mandatory mediation prevents promotion. Others stated that, by its very nature, mediation can be only voluntary in order to work properly, and that he would lose attractiveness in comparison with legal proceedings, in case it would become mandatory.
For example, in an obiter dictum in case Halsey v. Milton Keynes General NHS Trust, in the Court of Appeal of England and Wales, Lord Dyson noted that there is no mandatory mediation in England and Wales, because it would breach Article 6 of the European Convention on Human Rights. However, several British judges have suggested, in their public statements, that this allegation is incorrect. Another case in which the court examined whether to compel the parties to use mediation before referral is Ryan v. Walls Construction Limited, that was assigned to the Court of Appeal of Ireland in 2015. In this case, the Court of Appeal noted that the court has no jurisdiction to order the parties to mediate the dispute, but it can stop the proceedings so as to enable the parties to consider whether an alternative method of dispute resolution is needed. Ireland Court of Appeal said that this is proof of the voluntary nature of the alternative dispute resolution and mediation in particular. Moreover, there are provisions equivalent to the voluntary nature of the mediation process in the rules of civil procedure [Civil Procedure Rules in England]. In this regard, the Court noted that the jurisdiction of the English courts is limited to active case management, which includes encouraging the parties to use an alternative procedure for dispute resolution if it considers it appropriate [Rule 1.4 (2) (e ) of the rules of civil procedure in England].
In Case C-317/08, Rosalba Alassini v. Telecom Italia SpA; Filomena Califano v. Wind SpA and Lucia Anna Giorgia Iacono v. Telecom Italia SpA and Multiservice Srl v Telecom Italia SpA [2010], Court of Justice of the European Union examined whether a compulsory procedure of conciliation as a condition on admissibility of legal action is compatible with the right to effective judicial protection. It held that fundamental rights are not absolute but may include restrictions, provided that they in fact correspond to goals of general interest pursued by the measures itself and do not involve, in terms of the aim pursued, a disproportionate and intolerable interference, which would undermine the very substance of the rights guaranteed (see, to that effect, judgment of June 15, 2006, Dokter Cases C-28/05, Rec., p. I-5431, paragraph 75, and Fogarty v. the United Kingdom, November 21, 2001, § 33). In this respect, it should be noted first that the national provisions in question covers a faster and less expensive settlement of disputes relating to electronic communications and a relief of courts and aim accordingly objectives of general interest. Court of Justice of the European Union found that imposing an extrajudicial settlement of conflicts, such as that in national legislation at issue in the main proceedings, it is not, in relation to the precise manner in which the procedure is functioning, disproportionate as to the aims pursued. Thus, on the one hand, there is not a less restrictive alternative to the implementation of a mandatory procedure, introducing a purely voluntary extrajudicial settlement of conflicts do not constitute a reason as effective for achieving those objectives. On the other hand, there is not an important disproportion between these objectives and the inconvenience caused by the mandatory nature of extrajudicial conciliation.
In addition, it replicates the principle and conditions set in the Alassini case, extending them to consumers’ disputes. (ii) The CJEU decision notes that national legislation shall not require that a consumer taking part in an ADR procedure be assisted by a lawyer. This decision is coherent with the ADR Directive since article 8(b) establishes that the parties have access to the procedure without being obliged to retain a lawyer or a legal advisor. However, it is in opposition to the Italian legislation requiring parties to be assisted by a lawyer in the context of an ADR procedure such as a mediation procedure. (iii) The CJEU points out that protection of the right of access to the judicial system means that any withdrawal from an ADR procedure by a consumer, with or without a valid reason, shall not have unfavourable consequences for that consumer when the dispute is before the court. However, national legislation may provide for penalties in the event of the failure of the parties to participate in a mediation procedure without a valid reason, provided that the consumer may withdraw following the initial meeting with a mediator.
In another case, the ECJ also ruled that the mandatory mediation is not precluded by the EU law. In Menini and another v Banco Popolare Società Cooperativa, two Italian consumers were appealing a judgment as they were forced to attempt mediation as a pre-condition to admission of their case appeal. The Italian court requested a preliminary ruling from the ECJ as to whether this Italian provision was incompatible with the Consumer ADR Directive. Mr Menini and Ms Rampanelli were given a mortgage by Banco Popolare to be able to buy shares. On 15 June 2015, Banco Popolare obtained an order for payment, in which Mr Menini and Ms Rampanelli were asked to pay a sum of EUR 991.848,21, which remained outstanding. Mr Menini and Ms Rampanelli wanted to set aside the payment order. In the preliminary ruling of the ECJ, the Court ruled that the States can implement mandatory ADR into their national legislations as a pre-condition to litigation. An application made by Mr Menini and Ms Rampanelli to have an order set aside is admissible under Italian law only if the parties have first initiated a mediation procedure.
Although the scope of application of the Mediation Directive is limited to civil and commercial cross-border disputes, its purpose was also to promote mediation as an out-of-court alternative means, and even to allow Member States to enact national legislation making mediation compulsory, provided it would not deny the parties access to the court after an unsuccessful mediation. The compliance to EU law, and more specifically to the provisions of the Mediation Directive, by national legislation is being monitored today by the European Courts of Justice. They have provided so far, an embryonic case law highlighted by the Alassini jurisprudence which gives the possibility to use mandatory mediation provided it does not deny afterwards the parties’ access to the court. This has been confirmed by the CJEU decision of Menini.
The Constitutional Court of Moldova (Decision of 26 April 2018) noted that the challenged provisions establish, in cases expressly provided for by law, a mandatory procedure of friendly settlement of claims brought before the court of law, with the help and under the leadership of the court. The Court found that any person who wishes to bring an action having a subject-matter that falls into the category of mediated litigation must first, with the assistance of the court, have recourse to the judicial mediation procedure. As regards the legitimate aim pursued, the Court observed that the objectives of the judicial mediation procedure aim at achieving a timelier settlement of certain categories of litigation, relieving the workload of the courts of law, and avoiding the costs of judicial proceedings. The Court found that those objectives could be considered to fall under the general legitimate purpose of public order provided for in Article 54.2 of the Constitution. The Court concluded that there was a rational connection between the disputed measures and the legitimate purpose provided for by the Constitution. As regards the existence of less restrictive alternatives, the Court held that a purely optional judicial mediation procedure was not as effective as a compulsory procedure, which must precede any litigation. It showed that, even if one or both sides were reluctant to settle a dispute, there might still be opportunities for doing so that could not have been foreseen by the parties beforehand. Finally, with regard to the existence of a fair balance between competing principles, the Court established that the mediation procedure did not entail, under ordinary circumstances, a substantial delay with respect to having a trial within a reasonable time. In that respect, it referred of Article 1822.1 and 1822.5 of the Code of Civil Procedure, which provide for the mediation procedure to be completed within a maximum of 50 days from the filing of the claim. The Court also held that the obligation to undertake judicial mediation did not affect the voluntary nature of discussions and negotiations regarding the matter under mediation.
Moreover, the Court found that in judicial mediation, only the parties may accept or reject any solution with respect to a friendly settlement of the dispute, the judge having only the role of assisting and facilitating the discussions of the parties from a neutral position. From that perspective, the Court considered that there was no major discrepancy between the objectives pursued by the contested legal measures, i.e. resolving litigation with celerity, without high costs and in accordance with the interests of the parties, on the one hand, and possible inconveniences of the mandatory mediation procedure, on the other hand. It noted that the interference with the right to a fair trial within a reasonable time in cases of persons who did not reach a mediated agreement should be qualified as a minimum one, as the benefits associated with the procedure greatly outweighed the disadvantages. The 50-day period implied by the prior judicial mediation procedure did not constitute a substantial delay in bringing a legal action. Consequently, the Court found that the judicial mediation procedure set out in the provisions of Chapter XIII of the Code of Civil Procedure did not violate the right guaranteed by Article 20 of the Constitution with respect to the judgment of a case within a reasonable time.
With sentence no. 97 of 18 April 2019 the Italian Constitutional Court declares the constitutional legitimacy of the Law Decree no 69/2013 with which the legislator had re-introduced the obligatory nature of the mediation as well as making some changes such as the mandatory assistance of the lawyer and the gratuitousness of the decree first meeting. In particular, the judges of the Constitutional Court highlight the difference between mediation and assisted negotiation as ”in the mediation the task - fundamental to its positive outcome - of assisting the parties in identifying conflicting interests and in finding a meeting point it is carried out by an independent and impartial third party, in negotiation the analogous role is played by their own defenders: it is consequently clear that, while paying in both cases in hypothesis of conditions of admissibility with deflationary purposes, the procedural institutes in question are characterized from an evident inhomogeneity.” While, therefore, in the mediation the task - fundamental for the purpose of its positive outcome - of assistance to the parties in identifying the conflicting interests and in the search for a meeting point is carried out by an independent and impartial third party, in the negotiation the a similar role is played by their own defenders: and it is consequently clear that, while in both cases being subjected to hypotheses of conditions of admissibility with deflationary purposes, the procedural institutes under examination are characterized by an evident inhomogeneity.
For its part, the ECtHR decided along the same line, that a Croatian law making access to a civil court dependent upon a prior attempt to settle the claim was compatible with ECHR art 6. The Court found, in particular, that the restriction on the applicant’s access to court, namely the obligation to go through a friendly settlement procedure before bringing their claim for damages against the State, was provided by law and 'pursued a legitimate aim of securing judicial economy and opened the possibility for the parties to efficiently settle their claims without the involvement of courts'. In the Chamber judgment in the case of Momčilović v. Croatia (application no. 11239/11) the European Court of Human Rights held, unanimously, that there had been: no violation of Article 6 (access to court) of the European Convention on Human Rights. The case concerned the condition in Croatian law-making access to a civil court dependent on a prior attempt to settle the claim. Mr and Mrs Momčilović and their son – the applicants – complained that the domestic courts had refused to examine the merits of their compensation claim against the State for the death of their relative because they had not attempted to settle the claim with the responsible authorities before introducing the contentious proceedings. According to the terms of the Civil Procedure Act, a claimant intending to bring a civil claim against the Republic of Croatia must first submit a request for settlement to the competent State Attorney’s Office. The Court found in particular that the restriction on the applicants’ access to court, namely the obligation to go through a friendly settlement procedure before bringing their claim for damages against the State, was provided by law (the Civil Procedure Act) and pursued the legitimate aim of avoiding a multiplication of claims and proceedings against the State in the domestic courts, thus promoting the interests of judicial economy and efficiency. Even with the domestic courts refusing to try the applicants’ civil claim for failing to have the case settled with the State Attorney’s Office, it still remained open to them to comply with the friendly-settlement requirement and, in the event of a failure to reach a settlement, to file a fresh civil claim with a domestic court within the time-limit provided by domestic law. The applicants had failed to use this possibility and had thus essentially brought about a situation in which they had effectively prevented the domestic courts from determining the merits of their case. This judgment is interesting as it refers to Council of Europe statements on the desirability of encouraging alternative dispute resolution procedures to prevent and reduce excessive workload in the courts.
The right under Article 6 of the ECHR is not absolute and can be restricted. Restrictions to access to justice are permitted if the limitation is compatible with the principles established by the court. When assessing the lawfulness of a limitation of access to court imposed by the States, the ECtHR takes into account whether the restriction has a legitimate aim, is proportionate and whether the very essence of the right is not impaired. Proportionality is a main element in determining whether a restriction is lawful. It requires a reasonable balance between the legitimate aim of the State (restriction) and the means the State used to achieve this aim. The question is whether the restriction is necessary and effective. Proportionality also requires a fair balance between individual rights and public interests. When the State imposes the restrictions, it should use the least intrusive means.
Are the results of mediation legally binding? Is there a necessity to approve the results of mediation in any way? If so, by whom?
The agreement has the power of a written document under private signature. Therefore, it has the legal value of a contract between the parties. The parties’ agreement can be submitted for notarisation by a public notary (and at the same time awarded mandatory title to the mediation agreement) or, if applicable, to approval by the court of law, and it will award mandatory title to the mediation agreement. Moreover, notarisation of the mediation agreement by a notary public or going to a court of law is required in certain situations (transfer of the private property rights regarding immovable goods or, whenever the law requires, under the nullity penalty, the fulfilment of substance and form requirements).
The parties can revise the final settlement agreement before the mediator by concluding another agreement from their own motion or at the request of the court.
As of 2012 when the Mediation Law was changed, the judge or the public notary can modify the agreement, if the parties agree, to fulfil the condition of substance or form requested by law.
The parties to the mediation agreement may go to court to request, in compliance with the legal proceedings, to give a decision to legalise their understanding. Competence shall lie with the court in whose juris¬diction any of the parties have their domicile or residence or, where appropriate, the head office or the court of first instance in the jurisdic¬tion where the mediation agreement is signed. The decision whereby the court consents to the understanding between parties shall be deliv¬ered in the Council Hall (which makes the process more efficient) and will be an enforcement order under the law.
The actual article referring to the enforceability of the mediation agreement reads as following: “The mediation agreement verified and attested by the parties’ lawyers, by the notary public or by a lawyer or notary public chosen by the mediator with the agreement of the parties is an enforceable title”. In addition to the above-mentioned article, the parties can also ask the court to make a decision, pending prior verification that the mediation agreement complies with the law. The Romanian Parliament adopted modifications to the Romanian Mediation Law according to which, among many other new provisions, the mediation agreement will be enforceable title in Romania if signed by parties’ lawyers. With this modification, it is hoped that there will be more certainty (and the perception of certainty) with regard to the outcomes of the mediation process and to mediation in general. Therefore, in Romania, in the near future is expected a confidence boost in mediation and mediators, coming from users, lawyers, referrals and the society in general.
Who bears the cost of mediation? Is there State aided access to mediation in certain circumstances?
The mediator is entitled to receive a fee, decided after the negotiation with the parties, such as the reimbursement of expenses due to the mediation procedure. The fee must be of a reasonable amount and shall be determined in consideration with the nature and the object of the conflict. Unless otherwise agreed, the mediation fees are paid equally by the parties. The mediation agreement is enforceable in regard to the obligations of the parties to pay the fee of the mediator, as scheduled. Since mediation is a private service, there is no official fee scale that could be used by the mediator and the parties; each service provider is free to decide the fees using fee lists or individual fees for each case.
The procedure of informing the parties by the mediator regarding the mediation process and its benefits, is free.
According to Legal Aid Act No. 51/2008, if a party refuses to try mediation or other form of ADR, if applicable, an application for legal aid may be denied. Also, according to the same act, parties that cannot afford to pay a mediator can receive financial support for mediation. Parties have the right to be assisted by a lawyer or other persons, under mutually agreed conditions (article 52(1) of the Mediation Law). The entire support provided during the mediation to the parties under conflict or dispute, by other persons who participate in the medi¬ation procedure shall have a confidential character to third parties and shall not be used as evidence for judicial and arbitral procedures, except in the case where the parties agree otherwise or the law states the contrary. Therefore, the party representatives can be asked by the medi¬ator to sign a confidentiality agreement.
The failure to acknowledge the institution of mediation and the legislation in the relevant field is deemed as the most frequently encountered cause for the reluctance shown by companies and the general public in what concerns mediation, which is liable to lead to a lack of a "culture of mediation". The institution of mediation was recently introduced in domestic legislation.
The Romanian legislation provides for reimbursement of all legal costs in case parties settle a dispute by relying on mediation. The results reached in Romania by relying on mediation prove that the latter is liable to ensure an out of court settlement which is cost-effective and rapid within proceedings that are tailored to the needs of parties. In parallel with the provisions on financial incentives, a Mediation Council - in capacity of national body in the relevant field - has been established. Its tasks are to promote the mediation, to develop training standards, to train trainers, to issue documents certifying the professional qualifications of mediators, to adopt a code of ethics as well as to develop proposals meant to improve legislation.
Mediation is not sufficiently promoted at local, national and international level. Although considerable progress has been made, which are supported by European legislation, a key challenge in promoting cross-border mediation results from the lack of information for litigants, lawyers, judges, and more broadly citizens regarding mediation and its advantages. The path dependence of relying on traditional justice system and insufficient knowledge of alternative dispute resolution leads to higher costs and waste of valuable time. In case mediation is not organized under or next to the courts and is regulated as an independent profession, as is the case in Romania, communication between mediators, parties and the judiciary could be hampered, especially if there is not a tradition of relying on alternative dispute resolution.
An important point for the Romanian Mediation Law is related to the possibility of the reimbursement of the judicial fee. In case the conflict / dispute is settled by mediation, the Court will, on the request of the parties, issue a decision in accordance with the provisions of the Romanian Civil Procedure Code. At the same time with the issuance of the decision, the Court of Instance will dispose, on the request of the interested party, on the reimbursement of the judicial stamp charges paid to the court to deal with the case (Article 63 of the Romanian Mediation Law no.192/2006 on mediation and organizing the mediation profession). This incentive is very important for the implementation of the mediation activities within the Romanian judiciary. This rule was changed by the Law no 76/2012(in force from February, 15th, 2013) as follows: will not be reimbursed the stamp duty in case of the transfer of the property right and/or if is constitute another real right on an immoral good. Nine years after the Constitutional Court Decision No. 266/2014 according to which the inadmissibility sanction for not attending a mandatory information session regarding mediation benefits, the Romanian media¬tion field is almost depleted. The civil, family, commercial and penal fields offer limited practice opportunities. Minor developments are fore¬seen in the banking, consumer and insurance field, although some of them foresee a hybrid process (ie, mediation and expert determination). Public and private sectors are still reluctant to budget resources and invest in mediation services. In the meantime, the mediators have no or very limited practice opportunities and need to focus on other fields of professional practice.
However, on 24 April 2019, the Romanian Parliament adopted a modification to the mediation law, putting it in agreement (finally, after five years) with the Constitutional Court Decision 266/2014, and offering some concrete incentives for the use of mediation services, such as refunds of stamp taxes or enforceable settlement agreements when the parties’ lawyers check the legality and sign the agreements.
The current legislative framework on mediation in Romania is ineffective. During the period 2014-2022, the number of cases resolved by mediation has continuously decreased (2085 in 2014; 2313 in 2015; 1511 in 2016; 985 in 2017; 727 in 2018; 676 in 2019; 343 in 2020; 323 in 2021 against 216 in 2022).
The results are worrying, in Romania mediation is not a real alternative tool for conflict resolution. The legislation is proving ineffective and insufficient.
The competent authorities (the Mediation Council, the Superior Council of the Judiciary, the Ministry of Justice) must get involved and implement an effective mediation reform project.
Mediation is not sufficiently promoted at local and national level. Although considerable progress has been made, which is supported by European legislation, a major challenge in the promotion of cross-border mediation results from the lack of information for litigants, lawyers, judges and more broadly citizens about mediation and his advantages. Path dependence on relying on the traditional justice system and insufficient knowledge of alternative dispute resolution leads to higher costs and loss of valuable time. In the event that mediation is not organized under or alongside the courts and is regulated as an independent profession, as is the case in Romania, communication between mediators, parties and the judiciary could be hampered, especially if there is not a tradition of resorting to alternative dispute resolution.
IMPORTANT NOTE: This information has been updated in August 2023. Legal provisions after this date are not included.
