A1.A BRIEF INTRODUCTION
The amicable conflict solving between two or more parties, a procedure successfully employed in the USA and Europe, has determined the Romanian society to perceive the advantages of the alternative means of conflict solving. The term “ADR” (Alternative dispute resolution) refers to the conflict solving procedures and techniques outside the courtroom and is a reaction to the inefficiency of traditional conflict solving procedures(in the courtroom). The main advantage of ADR is that the parties have complete control over the entire process, the procedure being informal, rapid and efficient. Mediation has a 60% share in the cases solved through alternative means of conflict solving, it being the most often used means of conflict solving outside the courtroom.
The interest for mediation and for mediation as a profession is continuously rising. From the time the mediation law was issued, all interested in this means of amicable conflict solving have been eagerly expecting an alternative to the classical justice. Against the background of the international expansion of alternative means of conflict solving outside the courtroom, expectations are high even in our country.
Mediation cannot be implemented in a legal system overnight! The efficiency of integrating mediation within the Romanian legal system is not guaranteed by the passing of a law which regulates mediation and the respective profession. A mediation law is not sufficient in a country which has had a vague relation with mediation only through legal commissions in a period which it wants forgotten.
For those unfamiliar with this new concept, I will make a brief presentation of mediation. Mediation is the art through which a specialized person, namely a mediator, helps the parties transform a conflict into an agreement. The parties are entitled to enter an agreement, without its provisions affecting the law and public order, an agreement which can be subject to verification by a notary public or to approval by a trial court, under the legal conditions. It appears simple and complicated altogether. The mediator helps the conflicting parties generate options, he/she makes them understand that they have the possibility of choosing among these options, based on the idea that every person has a different point of view. There are no similar personalities and as a consequence each person understands an existing situation differently. Very frequently the parties are not aware of the legal situation that they find themselves in, being blinded by their own ego. The high number of ongoing lawsuits is determined by immeasurable vanity? and the idea of victimization. Each party in a lawsuit considers itself a victim of the other party, the latter being considered as the source of all evil. The fierceness with which the parties of a lawsuit fight for a favorable court order is mainly determined by the image that such a person holds of the party-opponent. These lawsuits fueled by egos are sources of continuous pressure, disappointment and imaginary fights with an „enemy” that is more imaginary than real. The mediator’s task is to identify the expectations of each party and to try and bring them to a convergent point as well as to discover the fears of the parties and to eliminate the groundless ones by facilitating the dialogue between the parties.
A2. THE LEGAL FRAMEWORK
Mediation and mediation as a profession have been regulated by Law nr. 192/2006, based on the idea that mediation is one of the important themes of the justice reform strategy, as it is a priority within the Action Plan for implementing the reform strategy of the legal system 2005-2007. By adopting the law it was intended to reduce the amount of activity of the Instance Courts and as a consequence, to reduce the number of cases, attempting the increase in the quality of the justice act by satisfying the interests of the parties.
A3.THE MEDIATION CULTURE
A recent study performed in 126 top companies in the USA by the International Institute for Conflict Prevention and Resolution and made public on april 20th 2007 in New York, has revealed the fact that almost 98% of the cases that they encountered, were solved before they came to court. It is obvious that these companies prefer an amicable way of solving their conflicts. We are talking about a mediation culture in which the company which has a litigation matter does not in any way intend to sue the party-opponent until trying to solve the dispute through alternative methods, especially through mediation.
Starting from the certainty that mediation is a success in the USA and that most of the litigations are solved out of court, we can optimistically regard the future impact of mediation in Romania. It is important that the romanian legal environment have the necessary openness and encourage this amicable means of conflict solving. Mediation takes time and results in order to establish itself in Romania. The first steps have been taken, nevertheless we shouldn’t fall into the trap of comparing results which will be obtained in our country with the ones currently obtained in the USA.
The discrepancy between the romanian legal system and the american one is substantial. Implementing mediation within the romanian legal system is not an easy task but we have all the premisses for obtaining results and a mandatory change in mentality.
The foreign firms will be the best mediation promoters in Romania. The corporate environment will embrace mediation given the commercial advantages and we will shortly be able to talk about the familiarization of the romanian public with this concept. Starting from these premisses, in time, we will attain a mediation culture! Until then, let us use the experience of those who have already gained it.
A4. THE PROFESSIONAL ALTERNATIVE
The greatest interest which mediation has caused was in the legal environment. Why is the legal environment(and not exclusively) so interested in mediation? The answer which instinctually comes to mind would begin as follows: „As it is a newly founded institution…” . No, this is not the answer i am looking for. I am still trying and i think of the advantages of mediation in relation with the classical justice. Could it be that a large number of people have suddenly discovered them? I doubt that. I finally found the answer that was troubling me. And i was wishing for any other answer than the one i arrived at.
The Romanian justice system is adrift, there is a multitude of legal professions which are striving for survival and some of them are even becoming extinct. The professionals of the law are looking for alternatives for their profession, being willing to start all over again even in another field of activity. And they do not do that for lack of training, or professional irresponsability or limitation but due to the will of not deprofessionalizing themselves and of strengthening their hard-built career. Within the legal field the situation is distressing: the lawyers, judges, the auxilliary personnel and legal counsels must face overwhelming unrest. They perceive mediation as a challenge, a new speciaization, a new promising profession, a step forward, a necessary change in mentality or… whatever they want it to be…depending on the perspective from which they regard it. One thing is certain, the mediation profession is a viable professional alternative and this is underlined by the large number of persons who intend to become mediators(exempli causa, on the waiting list of a single mediators’ association which holds courses in mediation formation there were registered over 1000 persons).
A5.THE ALTERNATIVE TO THE CLASSICAL JUSTICE
The second category of persons interested in mediation are the justice seekers and the potential justice seekers. The true perception amongst the mediation audience is given by them. In other words, if encountered or possibly encountered with a conflict, how many of the citizens are willing to resort to mediation? Promoting mediation in Romania is in its incipient stage, few people even within the legal field are truely aware of what mediation means and of its advantages. Unfortunately, the results are disappointing. Perhaps the best way of promoting mediation will be realized by those who have resorted to mediation and have succedeed in solving or preventing misunderstandings with the help of mediation. Until recently, mediation has not been sufficiently promoted. There are however people interested in solving their conflicts amicably. They are those who will decide whether mediation will be a failure or a success. The number of people who would resort to mediation is substantially smaller than the number of people who wish to become mediators. Nevertheless, those who have once resorted to mediation in an overwhelminng proportion, are willing to resort to it in the future, too. Starting from this data, we can only hope that mediation will be a success in Romania in the future.
A6. LAWYERS’ CONCERNS
Unfortunately, lawyers regard mediation as a profession with suspicion. This is owed to the insufficient promotion of mediation amongst the law professionals, although, paradoxically, most mediators who have taken mediation courses and are currently undergoing authorization in compliance with the provisions of the law 192/2006, are in fact lawyers. Evidently, the oponents are the lawyers who have not been trained as mediators.
The mediator is not a competitor of the lawyer! And neither are the judge, the officer of the court or the technical expert. Mediation as a profession must not be regarded with suspicion or skepticism by the lawyers professional body. Mediation has been functioning successfully in Europe and the USA for decades and the methods of alternative conflict solving are used more and more often.
More than that, mediation is advantageous for the lawyer for the following reasons:
Mediation is beneficial for all those involved in a conflict: the parties can reach an agreement which they can negotiate themselves, the Instance Courts are relieved of cases, the lawyers can perform their tasks within the mediation procedure, defending the interests of their own clients. In order to achieve those goals the help of the lawyers professional body is needed. And this will happen when they will become aware of the advantages of mediation and they will advise their clients to resort to mediation before initiating legal actions.
B. PROBLEMS IDENTIFIED
B1. THE MEDIATION LAW
Law 192/2006 is apparently a good law. There are however certain provisions which hinder mediation in itself, as well as there are certain provisions which can be interpreted in several ways, leaving this task to the Board of Mediation, an autonomous Organism of public interest established in compliance with the law, which supervises, coordinates and manages the mediation activity in Romania.
Mediation is an alternative means of amicable conflict solving and he/she who resorts to mediation does so because it is to his/her advantage. For this reason it is normal that the law offer him/her who by his/her own will resorts to mediation certain facilities which are advantageous from all points of view so that he/she does not have to choose to litigate. There are facilities provided to the one who chooses mediation as a means of conflict solving. If one wishes to close a litigation matter as soon as possible, then mediation is the optimal solution. Mediation as a profession being a liberal profession, implies paying a mediation fee to the mediator. But the costs to the parties who resort to mediation are much lower as there are no legal stamp fees, expert fees, etc. In many cases in which mediation is a success, this is achieved in the first mediation session. In a mediation session, you are the one who determines the terms of agreement with the party-opponent in the litigation. A solution cannot be imposed on you by anyone(least of all by the mediator!), you are the one who decides whether you want to reach an agreement or if you want to go to court. If the litigation has already been taken to court but a sentence has not yet been passed, in the event that an agreement is reached(successful mediation), the legal stamp fees already paid are returned to you! This is an important incentive, I would say even definitely for the justice seekers, as it offers them the possibility of closing a conflict and of recovering these sums of money which sometimes hold substantial value. However, the way in which these fees are returned is nowhere stipulated within the law. The law does not stipulate the procedure which the justice seeker must apply in order to recover the legal stamp fees. It is well-known that recovering money from the state is an operation that is more than complicated. A clarification within the text of the law on this matter was necessary.
According to the Law nr. 192/2006, mediation is applicable in most of the types of lawsuits, except for those of labor law and those regarding strictly personal rights, which cannot be dictated by the parties. Work conflicts are solution based on the provisions of Law 168/1999. Amongst the means of conflict solving mediation is also mentioned under special conditions stipulated in articles 26-31(Mediators are appointed annually by the minister of labor and social protection, and approved by the economic and social board). According to a recent survey, in 2006 no work conflict was solved through mediation under the provisions of the law 168/1999. Taking into consideration the fact that the number of labor law conflicts which are taken to court every year is approximately 50.000. the reason why the lawmaker has decided that the provisions of the law 192/2006 do not apply to work conflicts. In fact, law 192/2006 only clarifies aspects which are not included in the law 168/1999, thus providing an absolutely necessary support for beginning to also apply mediation in the work conflicts.
The efficient application of the mediation provisions requires the modification of the civil and criminal procedure codes and their harmonization with the provisions of the mediation law, one aspect which has not been yet accomplished. For this reason, applying the provisions of law 192/2006 within the lawsuits in the Instance Courts is almost impossible.
Article 22 – 3 from the law stipulates that authorized mediators can be hired with an individual work contract, under the conditions stipulated by the Law 53/2003- The labor code. This provision is interpretable and the law does not specify who can hire them. Thus, by an erroneous interpretation of the law(which can be done by some of the instances) the situation can be arrived at in which limited liability company might provide mediation services under the conditions of the law 192/2006 for the simple reason that it has hired an authorized mediator. The law was intended to stipulate (my own interpretation) that mediators can be hired with a work contract only within the forms of practice of the mediator profession(professional civil society, an office where one or more associates can function or within a non governmental organization).
Art. 66-2 detours the provisions regarding the confidentiality of mediation, turning the mediator, a person invested with the trust of the parties, into a person who can anytime report his/her clients to certain authorities of the state. The purpose of this provision is noble(the best interest of the minor) but it is not useful within the mediation law, thus depriving the entire law of its essence. What happens in the situation in which the mediator complies with the provisions of the law 192/2006, and alerts the competent authority with regard to the existence of facts which jeopardize the growth or normal development of the child or which severely prejudices his/her best interest and the respective authority becomes aware of their inexistence? But in the situation in which the mediator does not alert the respective authority, who can hold him/her responsible, as it is a well-known fact that the information within the mediation process is confidential?
The provisions in art. 75 are also more than interpretable. “Lawyers, notaries public and legal counsels who acquire the quality of mediators according to the current law can practice the mediation activity within the forms of practice of their profession”. In the case of the legal counsels, the situation is more delicate, as these are hired with an individual work contract. I wonder how the notaries and the lawyers will succeed in applying these provisions? A lawyer who is a mediator will offer mediation services in his/her own law office? The law provision was mis-inspired. Are we to have an “Individual lawyer and mediator’s office”? I do not think so, the law which regulates the lawyer profession does not entail this possibility. Or … a law office which also provides mediation services? No, as we are dealing with two professions distinctly regulated by separate laws.
The mediation procedure stipulated in the law 192/2006 is apparently simple. There is a provision which deprives mediation of its essence and discourages the parties from resorting to mediation. When the conflicting parties have reached an understanding, an agreement is drawn which will comprise all the clauses consented to and which has the value of a written document under private signature. The parties’ understanding who come before a mediator is thus subject to verification by a notary public for authentication or, to approval by an Instance Court. In this case, the form which should encourage the party to resort to mediation has not been chosen. Since a law regulating the profession of mediation has been adopted, it would have been normal for the mediator to draw up an agreement at the end of the mediation process, which entails the parties’ understanding and has the power of an authentic document and not of a written document under private signature as it is stipulated in the present law. Thus, mediation would have become much more attractive for the justice seekers and the potential justice seekers.
B2.THE MEDIATION COUNCIL AND THE MINISTRY OF JUSTICE
In order to organize the mediation activity by the law 192/2006, The Mediation Council is established, an autonomous unincorporated organism of public interest, established in Bucharest. Its tasks are stipulated in art. 20 in the law.
The Mediation Council is composed of the representatives of organizations with vocation in the mediation field under the conditions of the law 192/2006. The Mediation Council is an elite professional body whose members stem exclusively from amongst mediators.
Provisions of art. 17 -4 of the Mediation Law are of no use(the members of the Mediation Council are validated by the Ministry of Justice, for a period of 2 years). The involvement of the Ministry of Justice in the mediation activity is unusual as mediation is an alternative to classical justice. Plus, mediation is optional, in this case it is mandatory that mediators be a completely independent professional category, with no connections to the Ministry of Justice(see the profession of lawyer). “The umbrella” of the Ministry tends to transform the Mediation Council into a department within the Ministry of Justice, thus mediation becoming not an alternative to justice but a part of it.
The first Mediation Council in the Romanian history was validated by the Ministry of Justice by Order 2220/C of October 6th 2006, under the circumstances in which law 192 of may 16th 2006 was published in the Official Journal nr. 441 of may 22nd 2006. Since it has been established and until recently it has elaborated the following documents: the Regulations on the Organization and Functioning of the Mediation Council(which has been subjected to public consultation), the Mediators’ Deontology and Ethics Code, The Norms of Disciplinary Responsibility of Authorized Mediators, the Mediator’s Occupational Standard, The Practical Guide for the Authorization Procedure of Mediators, The Mediator’s Formation Standard and the List of formation providers in the field of mediation.
On august 27th 2007 the procedure of mediation authorization has begun, an activity which has not yet been finalized. Although the members of the Council have accomplished their tasks by elaborating the above mentioned documents, a multitude of problems have occurred which have not yet been solved. The first budget project has been submitted to the Ministry of Justice in November 2006 but the funding sources necessary for assisting the activity of the Mediation Council have not been found. No comment or official answer has been issued by the Ministry of Justice in this sense, although there is the obligation of allotting these funds by the Ministry. Thus, due to the lack of funding necessary for the unfolding of the Mediation Council activity, the members have completely sustained the activity of the Mediation Council by personally paying transportation, food and even lodging fees for the participation in the ordinary and extraordinary sessions. The monthly sums which are due to them in accordance with the law have never been granted, the members of the council having worked “pro bono” since the Council has been established.
The Mediation Council has an office through the contribution of the council members based on a bailment agreement, as no available space has been found in the buildings of the Ministry of Justice(RAPPS has been notified on the matter 4 times but no answer has been received). Thus, the activity of the council members is to be appreciated considering the fact that they did not receive any kind of support from the state authorities. It is well-known that in the pioneer stage of any activity or profession there are multiple problems. In this context, I wonder what is the role of the mediation law? Was it just a requirement of the European Union that the Romanian state pretended to observe or was the relieving of the Instance Courts of the cases a real desiderate? We will receive the answer to these questions during the year 2008 and during the following years. Unfortunately, time passes, expectations run high and the mistrust in the institution of mediation settles in more and more every day. Even before the first mediation sessions take place in accordance with the law 192/2006.
The magistrates will be the ones who will determine whether mediation will be a success in Romania as well. The law 192 stipulates: “In the case in which the conflict has been sent to trial, its solution through mediation may take place by the parties’ initiative or by Instance recommendation, accepted by the parties, regarding rights that can be dictated by the parties in accordance with the law”. The improvement of the justice act can only be done by reducing the number of cases assigned to a judge. The Ministry of Justice has begun to inform the magistrates on the benefits of mediation but the evaluation of its results will only be accomplished after mediation sessions will have been performed in accordance with the provisions of the mediation law. If the magistrates will understand that they do not stand to lose power if they reduce the number of cases which they have to solution but that they stand to gain with concern to the quality of the justice act, they will have positive results in the field of mediation.
B4.THE NUMBER OF MEDIATORS
In spite of all the critiques, there is currently a sufficient number of mediators in Romania who are to be authorized in accordance with the law. Thus, in every county in Romania there is a number of minimum 10 mediators who will provide mediation services to the interested parties. In the long run, the number will prove insufficient but in this incipient stage this number is satisfying. The Mediation Council has authorized mediation organizations which will form mediators over the following period of time. There is a very large number of people who wish to become mediators, but in time there is the risk of forming a too large number of mediators, considering the fact that it will take a few years for the Romanian public to be familiarized with the mediation institution.
B5.MEDIATION COURSES AND MEDIATION MASTER PROGRAMS
The quality of the mediation act in both its theoretical and its practical aspects has lead to the situation in which no institution of higher education in the country has requested from the Mediation Council the authorization of any master program in the field of mediation with the purpose of forming mediators, although there is the demand for this kind of master programs. Within these institutions of higher education there are persons with special intellectual and pedagogical abilities, but the lack of mediation practitioners has lead to this outcome.
In this sense, the Mediation Council has only authorized mediation courses held by the NGO’s in the field of mediation which have activated in this field for a number of years and which have contributed to the foundation of the mediation law and of the mediation profession. It is also worth mentioning the fact that in the past years these mediation organizations have constantly performed “pro bono” mediations with remarkable results, having an undisputed practical experience concerning the management of conflict solving.
Outside the Mediation Council there have been certain dissensions(fueled mainly by the press) between mediators who stem from amongst jurists and those who stem from amongst psychologists. As the mediation law stipulates that any person with higher education regardless of his/her profession, if he/she fulfills the conditions stipulated by art.7 in the law can acquire the quality of mediator, only time will tell who the best mediators are. In my opinion it is not the mediator’s profession that gives him/her that particular quality but the professional formation which he/she received as a mediator and not least the intellectual and emotional compatibility with the mediation profession.
In the Republic of Moldova, the law 134-XVI of June 14th 2007 regarding mediation represents a priority for this year and is to come into effect on July 1st 2008, approximately one year after it has been adopted. Although the Mediation Law (law 192/2006) was adopted in Romania on May 22nd 2006(over one year in advance from the Republic of Moldova), its provisions regarding conflict mediation become applicable within one month from the finalization of the authorized mediators’ Roll. As the Roll has not yet been finalized and it is almost 2 years since the law has been adopted, it is very possible that the mediation activity be commenced at the same time both in Romania and in the Republic of Moldova.
It is a positive fact that we have a mediation law which for the greater part responds to the current requirements. Even if the law is not perfect, it is still perfectible and there is the possibility of perfecting it but it is not recommendable to modify a law before applying it. In time, depending on the evolution of the mediation profession in Romania, a modification of the law will surely become necessary both in regard with the problems identified so far as well as in regard with the future evolutions.
A greater support from the Ministry of Justice would be appreciated both in assisting the activity of the Mediation Council as well as in regard with the promotion of mediation amongst magistrates, lawyers, justice seekers, etc.
The year 2008 will be defining for the future of the mediation profession in Romania. The first mediations will be defining for winning the trust of the justice seekers and the potential justice seekers in the institution of mediation.
The Mediation Council has the responsibility of assuring the quality of the mediation act; in this sense a careful selection of the future mediators and a professional training of those will be needed.
Implementing mediation in Romania is a lengthy operation which takes a sustained effort from the state authorities, as the mere passing of the law is but a first step in that direction.
Mediation, as it is less formal than the litigious means, provides the conflicting parties with the possibility of accomplishing their goals, with durable solutions, with significantly lower costs and confidential procedures. The main advantage of mediation is that the parties have the control over the entire process, the procedure is informal, rapid and efficient. Given the success that this alternative means of conflict solving enjoys in the USA and Europe, we can raise our expectations regarding the future of mediation in Romania, all the more because the unjustified length of the trials in the Romanian Instance Courts is well known.
Barbara McAdoo emphasizes the importance of clearly defining what the party is and is not getting through mediation.By Barbara McAdoo