Acta Universitatis Danubius. Juridica, Vol 10, No 1 (2014)

Ion ŢUŢUIANU¹,^, Dorin ILIE²

Abstract: The aim of this article is to synthesize the importance of mediation as one of the most used methods regarding the alternative solutions to courts of law. The approach is qualitative and is focused on the increasing trend of mediation in Europe, an evolution of the related European policies and the medium and long-term perspectives of mediation. For this purpose we used the case study regarding countries such as Italy and Romania, countries that have introduced mandatory mediation before opening a judicial process. The study is important for those involved in the justice act (attorneys, lawyers, magistrates) and the novelty of the study dwells in the analysis of mediation in the various European government systems.

Keywords: mediation; European Union; legislation; alternative

1. Short History of Mediation

Mediation is a relatively new³ settlement method of conflicts/litigation from different public or private social relations. The institutionalization of mediation as litigation settlement procedure is materialized in the U.S. (Ancheș, 2010, p. 102), in the second half of the 20^th Century. The institutionalization included the strengthening of certain specific procedure stages and techniques, particular requirements and capacities from a third party – the mediator – as a person able to run the mediation process towards a maximum efficiency, settlement of litigation by finding the most advantageous solutions for each party involved in the conflict.

Historically, we can say that mediation existed before the legal systems, as the latter occurred only after a certain type of organization in communes/states/empires. Before such forms, the patriarchate or the tribal organization were the habituating ways of living.

We cannot deny the inherence of conflicts in social relations of any kind and at any time, regardless of the level. Either on the intra-familial or inter-familial level, or in different social groups, conflicts occur in many degrees and forms. Related to such consideration, people were parties in conflicts since the ancient times. As people had not yet established a legal system, the group or tribe leaders, or elderly people from a community were considered to hold the principles of equity, based on which they settled their conflicts. We can say that they were mediators, whilst people were not subjected to trials having the same meaning we give to it today, there were no principles of criminal or civil law, as the person or persons empowered to settle such conflicts solved them by listening, firstly, the point of view on the conflict of each parties; after that they addressed and assessed the causes and effects of the facts, presenting an equitable solution, taking into consideration the previous settlements.

After communes, states or empires were established, due to an increase rate of conflict occurrences, the need for a judgement system and settlement of conflicts appeared. Therefore, the law system was determined, as a whole system improved in time, one that was most materialized and strengthened during the Roman Empire, a law system that is the essence and root of the present ones.

With the occurrence of this law system, mediation of conflicts or amiable settlement, becoming the second choice, people were more willing to a sentence imposed by a judge, in a trial, as the states considered only this method related to a true-false, guilty or not guilty, punished or not punished, punishable or not punishable dyadic.

The issues of the classical law system, that made the amiable conflict systems inexistent, started to appear with the technical and technological development, when the social relations grew considerably, the legal systems were stuffed with new problems or conflicts, growing in number. The courts of law could not cope with the high number of litigation cases, the quality of the legal act was questioned, the time needed for the settlement of a case was high, and the work of each judge was overstressing.

Under such conditions, the need of alternative methods for the settlement of conflicts had already appeared. Although the conciliation or mediation existed as methods in traditional forms, there was no procedural and material frame necessary for activating such methods. In the 20^th century, especially the mediation caught the eye of judges and attorneys in the U.S., who, equally made the necessary efforts and diligences to consolidate a mediation, a normative and procedural frame, to materialize a maximum efficiency method in settlement of conflicts/litigation. Mediation as a method appeared in the ‘70s when such processes took place, organized by the attorney (idem, p.102-103). Subsequently, an increased number of attorney participated in classes to address this procedure, each U.S. state promoting it, thus starting to show results. A large number of litigation entering the mediation processes were settled by this method. According to some, approx. 60-80% of the conflicts mediated were settled by finding an agreeable solution by the parties in conflict (Gheorghiu, p. 113).

In Europe, mediation is noticed mainly after the ’90s, also as a remedy to the classical judicial system that became increasingly suffocated by the large number of cases affecting the justice quality (Anches, 2010, p. 113). At the same time, having already the U.S. example where mediation not only reflected the settlement and solved the conflicts (Ilie, 2013)⁴, however, a side effect of it was noticed, as people were more opened to dialog and rebuild the social relations, by opening the communication canals between the parties, “mediation establishes the future behaviours and maintains relations among them” (Stoica, 2004, p. 278). Willingness and people’s good faith was reiterated precisely due to dialogue within the mediation process, one where the mediator generates together with the parties discussions related strictly to the conflict analysis (causes, history, effects, solutions), and exclusively for an extinctive solution to the conflict. “Communication is an instrument of human action; people are using it to act on their fellows and situations” (Muchieli, 2005, p. 246). Thus, the mediation procedure is also important in the European states, especially France, UK, Germany, Netherlands, Spain, and Belgium etc., where it becomes increasingly active and prolific. Promoting the mediation by the states and judicial actors (attorneys, judges, prosecutors, legal counsellors) and mainstreaming the mediation as settlement method of a conflict situation has led to increased confidence in the latter, especially in the mediators, as people being able to intervene effectively into a conflict.

In Romania, (generally in former communist states), it appears a decade later, any discussions on a mediation law starting after 2000. Among the conditions of Romania’s accession to the European Union was the elaboration and enactment of mediation as a procedure able to include and resolve many of the disputes on dockets of courts, in order to avoid overcrowding them and to increase the quality of justice. Therefore, in 2006, Law no. 192 was adopted on mediation and mediator’s profession, law that has been and still is permanently improved by the Romanian law-maker.

2. The European Norms before 52/2008 Directive

The European Union materialized the benefits of mediation for the society in general and particularly for people. The mediation addresses the settlement of conflicts on amiable way by structured dialogue. Promoting the mediation does not mean anything else than promoting the dialogue and peaceful discussions to find amiable solutions. The benefits for society are building a more peaceful climate between its members, promoting an amiable environment; at the same time an increased quality of justice by decreasing the number of cases assigned to a judge was a main indicator of European policy related to mediation. For each citizen under conflict, mediation brings important savings in terms of money and time, creates the conditions of reconciliation, and a social harmony. At the same time, it is a binder between social relations, and certain types of conflicts as the family ones and those related to the neighbour relations, has its true remedy through dialogue.

In criminal law relations, where the social hazard degree is reduced, mediation is not only possible, but also encouraged in the criminal law new systems, taking into account the rehabilitation criminal law⁵ policies, the ones emphasising rehabilitation of the perpetrator in society, his/her reintegration, rather than blaming and publishing him/her in terms of criminal law, which proved to be useless and without any integrative role. Although within such rehabilitation policies, the role of the victim in criminal process is more emphasised, the psychological, physical, social consequences he/she has to bear are mainly taken into consideration when criminal causes with law social hazard cases are settled, and where the parties in conflict have certain relationships – friendship, neighbouring, kinship or affinity. All those were taken into consideration by the leaders of European policies and thus, a series of consultative and guidance regulations were issued, as Recommendations in the mediation, civil and commercial areas, concerning family and administrative relations, in areas related to criminal law. All such recommendations were expressly meant to guide the states in a legislation related to mediation, therefore, firstly they were meant to develop and promote the mediation. The European recommendations related are: Recommendation no. 1 dated 1998 related to family mediation, Recommendation no. 19 dated 1999 related to criminal mediation, Recommendation no. 9 dated 2001 related to alternative means to settlement of litigation by the administrative authorities and individuals, Recommendation no. 10 dated 2002 related to civil mediation.

3. Recommendation no. 1 from 1998 related to Family Mediation

Family mediation relates to interfamilial conflicts concerning parents separation (divorce) or as a matter of fact (their separation after a period of living together without being married), others concerning shared custody of children, or division of shared goods obtained during marriage, other conflicts between the husbands/former husbands. One of the main European values, acknowledged and protected even by the European Convection of Human Rights is family⁶, considered not only the main cell of society, but also a cohesion and inclusion element into it. The mediation of conflicts deriving from family reports are meant to, as provided in the preamble of the Recommendation, be referred:

• to improve communication among the family members;

• to reduce the conflict dimensions between parties under litigation;

• to lead to an amiable settlement;

• to provide a connection continuity between parents and children;

• to contribute of reducing the economic and social costs produced by separation or divorce, both for the parties and the State;

• to reduce the period of time necessary for the conflict settlement.

The Recommendation of the Council of Ministers considered mediation as a factor able to facilitate the consolidation of family relations. By its nature, mediation is a procedure which emphasises the human nature and emotional substance of relations between persons under conflict, being, from our point of view, the most appropriate method to settle the differences within a family. This opinion also comes from the fact that the causes of family conflicts are mainly concerned on the lack of communication or deficiencies in communication, the lack of trust between the husbands, different emotional reasons. Under such conditions, certain states as France or Great Britain (Costea, 2013⁷), seeing the benefit of mediation for family relations regulated this procedure as a previous compulsory stage, before the appeal to the court law. This trend was closely followed by other states too, not only for the family litigation, but for other types too.

According to the same Recommendation, related to promotion, the access and participation into family mediation, the possible measures, which the states can take, are:

1. the states must promote the development of family mediation, especially by public information programs, for a better understanding of this means on amiable settlement of family litigation.

2. the states have liberty of determining, in specific cases, the adequate methods of information, related especially to mediation as an alternative process for the settlement of family litigation (e.g. providing a meeting between the parties and the mediator), and allowing the parties to decide if it is possible and indicated for them to proceed to mediation on the matter of such litigation.

3. likewise, the states must be involved to take the necessary measures to allow access to family mediation, including international mediation and thus, to contribute to the dissemination of this means on amiable settlement of family litigation.

At this moment, family mediation in Romania is still fresh. The provisions of the New Civil Code related to family relations and exercising the joint parental authority, and the settlement of family conflicts mainly by mediation, amiably of such discussion, are still in the implementation stage. Persons facing a divorce come to a mediator in a reduced number compared to the cases related to family matters – divorce and shared custody. Family mediation in Romania has slow progresses, however, it is supported by the state and the mediation bodies, preconizing an increase of the conflict cases deferred to mediation.

4. Recommendation no. 19 from 1999 related to Criminal Mediation

Criminal mediation is connected to rehabilitation policies in the criminal area, policies that especially emphasise the social inclusion of the perpetrator, his/her rehabilitation in front of society, emphasizing the non-punitive aspect on a low social hazard fact and, at the same time, on the amiable settlement of conflict by remedying the damage of his/her facts. Activating the process power of the victim and introducing him/her in the development of criminal trial is more complex in the new criminal vision. Attenuation of the criminal fact consequences regarding the victim are considered by the new criminal legislation even more clearly and complex. In most of the European states, criminal mediation is possible and it is used in case of low social hazard offenders, generally where the criminal liability of the perpetrator/ perpetrators is thus eliminated by reconciliation with the damaged party or by revocation of the complaint. Generally, such crimes are classified depending on certain rapports between the perpetrator and victim, with a low social hazard ratio or circumstances that make the criminal fact to not be classified as offence.

In Romania, the hypothesis leading to the apparition of criminal mediation concerned the introduction of the victim in the first plan of criminal conflict settlement, his/her right to receive apologies in due time and equitably, principles of social reintegration and reinsertion of the perpetrator. In another words, it was concluded that the detention of the person could not settle the problem after the detention period, related to the reintegration into society after it, contrary, “exaggerated the criminal character of the perpetrator and consequently, the oppressive punitive system brings damages to society” (Zecheru, 2013)⁸. Adding to all these, the fact that the financial means necessary to support a prisoner are considerable, about 2,400 lei (Dollorez, 2013)⁹ - and usually that person is incarcerated again within only few months, we notice that the imprisonment could be too costly for the state. Out of such reasons, the house confinement was introduced in the new Romanian legislation as a punishment in between the detention in Prison and conditional remission of sentence.

The European Recommendation for the criminal mediation imposes the implementation of a legal stable fundament for the mediation development procedure. The ethics and procedure of the criminal mediation will be undergone to the parties under conflict, as well as their rights and roles into mediation, and the effects of it. Training and qualification of mediators practicing in the criminal area must be supervised by a competent body. According to the Recommendation, mediators should receive an initial training before being appointed, as well as in-depth training during their activity. Their training should concern a high level of competence, taking into account the skills to resolve conflicts, specific exigencies involved in the work with victims and offenders, main knowledge of the criminal legal system. The skills to mediate a criminal conflict brings about serious matters in practice. The conflict nature, or of the relation between the parties of it (who are seen ab initio as victim and offender), the complexity of criminal cause, are major differences noticed by mediators, referring to the civil code. Mediators should accept the mediation of a criminal matter only if they have the capacity and skills to understand the conflict and its substance, as well as its criminal features, which will make the mediation difficult, as well as reaching a final extinctive solution.

5. Recommendation no. 9 from 2001 related to the Alternative Means to Settle Litigation between the Administrative Authorities and Individuals

The Conditions of this Recommendation concerns the rapprochement of administrative authorities to the citizens, faster settlement of administrative conflicts, de-solicitation of the courts law of causes which can be settlement on amiable way, reducing the costs and diminishing the settlement time, recurrence and principle of equity, not only the law one.

According to the Recommendation, the regulation of alternative means must:

1. provide for the parties a proper information related to the possibility to use alternative means;

2. to provide the independence and impartiality of the conciliators, mediators and arbiters;

3. to guarantee equitable procedures to provide the observance of parties’ rights and the principle of equality;

4. to guarantee, as much as possible, the transparency in using the alternative means and a certain degree of discretion;

5. to ensure the execution of the solutions found by using alternative meas.

The Conciliation and mediation can be initiated by the parties involved, a judge or can be considered compulsory by the law, at the same time, conciliators and mediators must provide separate entrances for each parties, or at the same time, to find a solution, conciliators and mediators can invite the administrative body to cancel, retract or amend the administrative document, on opportunity and legality grounds.

As compared to these guidelines presented in the Recommendation, we shall make a difference between the administrative recourse regulated presently in Romania and the amiable settlement means. The administrative recourse is a preliminary form of trial, however, it does not have the type of an amiable method of settlement, but it is considered as a law feature. It is proved by the procedural and material frame. The request/petition done by a person who considers itself damaged by an administrative deed or a decision is submitted to the issuing body, which, following an assessment, decides on its rectification or maintains it as it is. An amiable procedure as mediation, would mean that the mediation application is done by the person that considers himself/herself damaged related to his/her rights by the same administrative deed directed to the mediator – a neutral, equidistant and impartial third party of the situation, a mediator that shall call the parties to a mediation meeting. The mediation meeting of an administrative conflict will be the discussion between petitioner and the representative of an administrative body/institution in order to identify the incident problems to find an amiable solution by the mediator. It can be seen a clear difference between the procedure of the administrative recourse and the one of the administrative mediation. A direct meeting in front of the mediator of parties in the administrative conflict seriously increases the likelihood and potentially the settlement of the respective differently. Although now the administrative mediation is not regulated in the Romanian legislation, it is possible, as, according to the general rule in mediation matters, to take place if the parties of a conflict can dispose of the rights/goods on which the conflict occurred, according to art. 2 para. 3 of the Mediation Act 192/2006.

6. Recommendation no. 10 from 2002 related to the Civil Mediation

Civil mediation boasts the largest possibility of being developed due to the diversity and multitude of conflicts. All social relations can generate conflicts by themselves. Civil mediation presupposes that any conflict in any activity line, labour conflicts, commercial, conflicts related to property, to possession/delimitation of property boundaries, conflicts of debts, etc. Civil mediation is aimed to decrease the number of litigation on the dockets of courts, thus increasing the quality of justice, and lead to a peaceful social environment based on dialogue and respect between persons that were or have a conflict. The interception and settlement of certain conflicts by civil mediation is beneficial also for persons in conflict who shall be thus educated toward an efficient management and prevention of any eventual ones that may occur.

All European policies in the civil mediation offer an opening toward a new vision of advantageous administration and management of conflict exploring solutions by parties with the mediator’s help.

Within the process related to mediation, the states must decide if and to which extent the clauses related to it can restrict the right of the parties to turn to justice. The mediator should act impartially and independent and supervise the observance of the equality principle during mediation. The mediator cannot impose a solution to the parties. The information acknowledged during the mediation is confidential and it cannot be used afterwards unless the parties agree or in cases permitted by the national law. During the mediation, the parties should be allowed sufficient time to examine the problems raised and to find an eventual solution to this litigation.

Mediation, although it is an informal procedure, involves a lot of attention from the mediator both in preparation of the process and of parties for the mediation as well as during the final discussions and negotiations. The complexity of a case shall make the mediation even more complex and difficult. In such cases, the presence of two mediators (the procedure being called co-mediation) is welcomed. After examining the issues in discussion, the assessment of the progress of mediation, generating as much options as possible by the capitalization of dialogue are key elements of the latter.

Related to the restraint of the litigants to turn to justice, the Constitutional Court of Romania decided that a previous procedure as the direct conciliation does not hinder unrestricted access to justice, as the “law-maker intended to transpose into practice the principle of celerity of litigation settlement between parties – more event in the commercial law – and to relieve the activities of the courts law”¹⁰. To promote the mediation, the states must provide to the public and stakeholders in the civil litigations general information on mediation. The states must group and share information in detail on the mediation related to civil matters, including the costs and efficiency of it. Measures should be taken in compliance to practice and the national law to create a network of regional and/or local ones, where individuals can obtain an impartial opinion and information on the procedure of mediation, even by phone, by letter or by e-mail. The states should inform the professionals involved in the operation of justice on the mediation related to civil matters.

7. European Directive 52/2008 related to Civil and Commercial Mediation

All recommendations above, together with all the discussions and pilot projects developed by the European States (in Romania the pilot project related to the mediation took place in Craiova) starting with 2000, lead to the need of a directive related to the mediation of conflicts, as a stringent need of judicial area, as a viable alternative for citizens. It was also possible due to the fact that most of the European states already have had a frame or a law of mediation more or less functional, where the Directive brought as a novelty being a principled note of mediation and equalization of the implementation and promotion of this procedure in the European Union.

The courts from the European states were almost suffocated by the high number of litigation which increased a lot also due to the economic crisis, the need of regulating and activating the alternative settlement frame was imposed by itself, in order to avoid a legal blockage. Mediation is the break that was need. When we refer to judicial blockage we do not have in mind strictly the physical impossibility of judging the cases on the dockets of court, but the large period needed for judgement. If a term is established after 12 months following the registration of the request is in fact, in our opinion, a judicial blockage. The Directive wanted to establish a less staffed judicial frame using the mediation in cases that could be mediated, where the intervention of the judge was not so necessary. Thus, for mediation of such litigation, the Directive imposed on the States Member to promote the mediation by national programs, informing the public, but especially by practitioners of law as persons already working on the files including conflicts between the citizens. Offering incentives to parties that are willing to use the mediation was also an important point of the Directive, meant to stimulate the use of such method.

The experience of Western states in mediation and the success of such procedure encouraged the European Union in regulating its frame and principles. The success of this procedure which started to enjoy was considerable. The Directive was aimed to increase the number of cases mediated, the amiable settlement of as many cases of litigation as possible and an ease on the judicial system. The states could impose a certain modality to use the mediation before and after a legal trial, as a condition. To create a filter of litigation cases brought to court is still a concern of the European Institutions. The increased number of cases on the dockets of courts, high period of judgment, determined the European policies in the ADR (Alternative Dispute Resolution) but especially mediation to be more dynamic, prompt and concrete.

According to article 5 of the Directive preamble, “the objective to provide a better access to justice, as a part of the European Union policy of implementing a freedom space, security and justice, should include the access to methods for settlement of litigation both on the judicial way and extrajudicial. This Directive should contribute to a better functioning of the internal market, especially related to the availability of mediation services”.

Related to the mediation concerning family matters, the Directive refers to the Regulation EC no. 2201/2003 of the Council dated November 27, 2003, which provides in art. 55 letter e: States should be involved to facilitate the conclusion of agreements between people responsible in terms of parental liability, using the mediation or any other means and to facilitate for such purpose the cross-border cooperation”.

The Directive also comprises frame mentions to provide a control of the mediation activity. “Members States encourage, by any means considered appropriate, drafting of voluntary codes of behaviour and accepting them by mediators and organizations providing mediation services, as well as of other efficient quality control mechanisms related to the provision of mediation”.

Related to the revision and analysis of the Directive effects, “no later than May 21, 2016, the Commission shall present to the European Parliament, the Council and Economic and Social European Committee a report on the implementation of this Directive. This report shall analyse the evolution of the mediation in the European Union and the impact of this Directive in the Member States. If it is necessary, the report shall be accompanied by proposals in order to adapt this Directive”.

The Directive was successfully implemented in the Member States of the European Union, some of them amplifying the mediation process within the judicial system, other have not proliferate this niche yet. Although the large majority of states have implemented a frame for the provision of mediation services, the litigants still do not know enough this procedure, and there are few people turning to this method for the settlement of litigations they are facing.

Promoting a first mediation meeting before going to court seems to be the most prolific procedure up to now, implementation that is still in force in Italy until 2017. There are also other states where the obligation of a meeting with a mediator before going to trial was regulated for certain types of litigation.

In Italy, during the period when mediation was compulsory an amount of 200,000 litigations were settled by mediation, unlike other European countries where the total of cases settled by mediation was of 500 disputes.

In Romania, the Act of Mediation no. 192/2006 was improved year by year. The number of mediators increased during this period, and the legislative progress was done gradually, at this point the obligation to conduct a meeting with a mediation before a trial was introduced by Law no. 115/2012, that sanctioned the parties under conflict for failure to observe this condition as the trial request was not accepted, a very severe legal sanction. As the obligation together with sanction was implemented staring with 1^st of August 2013, the results of this law can be measured only in 1-2-3 years. At this time, mediation in Romania is not largely used by people, although the number of people informed about this procedure increased. The evolution of mediation is good taking into account the new criminal legislation which broadens the frame of it into the criminal area too, offering the parties the right to choose a mediator for the amiable settlement of certain crimes¹¹.

In January 2014, within the Commission for Legal Business of the European Parliament, the impact study was introduced under the title “Restart” of the Directive related to mediation: assessment of the limited impact of its implementation and measure proposal to increase the number of mediation in the EU. For a significant increase of the number of people choosing mediation in the European Union, the proposal resulting from the study is as follows: legislative intervention which may introduce, not only to allow, a minimum model of compulsory mediation, at least for certain types of cases, the public information by different national or regional programs.

In Romania’s case, related to the incentives, we can think first to a reduction by 50% of the duty stamp which could be due to the case of litigations related to transfer of property or of another real property on one or several real estate assets or property division, in case the conflict was settled by mediation. Such an incentive would be an important element under the conditions of the economic crisis, however, it cannot be considered as the single element generating the mediation.

The analysis of the legal frame of mediation into the 28^th Member States of EU indicates significant variations in the implementation of directives. Some of them created two types of mediation – domestic and cross-borders. The following date for the assessment of directive’s effects into the European space is established for 2016, when the implementation of this Directive shall be addressed too, in terms of unification of certain procedures at the European level, both related to the settlement by mediation of certain types of conflicts (family, neighbouring relations, commercial) by imposing a preliminary compulsory meeting, both in way of evaluation and authorization of mediators, for the act and services of mediation not to have a doubtful quality.

At each country’s level, mediation had to face difficulties especially from law practitioners. In all states where the mediation was implemented in pilot centres, the first to be reticent were the attorneys that viewed the mediation unfavourable. Fear and reticence of new has been and still is one of the reasons for which mediation is implemented and it did not earn a place in the conflicts management. Although the rejection is not a general phenomenon, it is still detrimental to a normal evolution and judicial and fast implementation into society.

8. Mediation - the Current Practical Aspects

1. What are the critical issues in the mediation practice?

Implementing mediation also encounters several practical problems from various angles. Both in terms of novelty as a method of dispute resolution as well as in terms of law practitioners. If until the implementation of mediation lawyers and jurists were the only ones offering services to litigants in order to solve their disputes, it is understood that the emergence of a new profession in the sphere of litigation is viewed with scepticism and a less good eye. This also because, contrary to reality, many legal practitioners see their income endangered once the parties enter the mediator’s office and solve their conflict without judicial intervention or assistance, a less true fact.

2. The cost of parties for mediation

The mediation costs are low compared to fees charged by the state court. If a background preliminary hearing mediation (an information meeting on mediation and its advantages) cost around 50 euro as an average European level a conflict mediation process costs between 150-500 euro, sometimes over 500 euro, depending on the complexity and nature of the conflict. But most of them that are subject to mediation are less complex disputes where parties are more open to dialogue, litigation that shows no major problems or interpretable legal issues and thus the need of their trial is not the best option.

3. The qualification and legality of mediators

At the EU level, Directive 52/2008 as well as previous recommendations established that mediators must have qualifications in the field of amicable settlement of conflicts. This is to set a minimum standard of qualification. Thus in some countries have introduced some initial training courses for those who want to become mediators, courses that integrate knowledge and practical skills in the field of conflict analysis, methods, communication and negotiation techniques, mediation procedures. The course provides a minimum threshold for prospective mediators that once authorized by various procedures adopted by each state, are required to continue training in the mediation field. Some states have developed specific criteria for authorization as a mediator, others have declared lawyers as mediators - in disagreement with the recommendations and Directive 52/2008, which will result in drifting the institution of mediation in that state, as long as the minimum qualification and standard is not fulfilled. And is not filled because lawyers do not have the knowledge and skills of conflict analysis and mediation techniques (communication and negotiation) because these subjects are not in the organization chart of the faculties they graduate only with certain exceptions. In Romania no law school has the discipline for mediation, communication and negotiation in the curriculum cycle of four years.

4. The duration of mediation procedure

Mediation is a process consisting of discussion meetings with the parties in conflict. The duration of a mediation process can be 2 hours minimum, reaching up to 10-20 hours, hours understood through mediation session set in different days with the conflict parties, depending on their programme and the mediation complexity. Thus these sessions can be covered in a week or in a few months. In general, any mediation takes 2-3 weeks up to 6 months, depending on the conflict nature, the case complexity and also the parties’ availability. Therefore a case with multiple stakeholders some of which reside in different states and they want to present themselves to mediation will take longer, the mediation sessions being established by all participants in it. A case that requires expertise and assessments will take longer depending on the surveys or assessments length, results keeping in check the mediation process.

Comparing the mediation process with a time trial the costs are substantially reduced, and in conflict with a low legal complexity mediation is the best choice. We refer to family conflicts concerning divorce, child custody and separation, conflicts of debts arisen from various bilateral contracts, labour ones, and conflicts in criminal matters where the legislature provides greater procedural power to the injured party (offenses where criminal liability can be removed by withdrawing the criminal complaint or conflict reconciliation of the parties in criminal proceedings).

5. Involving lawyers in mediation

When we speak of mediation, lawyers can be viewed from 3 positions. Firstly lawyers who denies mediation, its success, regard it as a void invention, reaching up to hatred and contempt for mediation and mediators. Secondly are the lawyers sceptical about mediation, the ones who admit to it but does not give it a chance. For them, mediation is something good, but not useful today. Not now. Maybe in 10-20 years. The third position is given by lawyers who were authorized as mediators, or were part of a conflict in which they turned to a mediator, or who attended a party at a mediation. These lawyers have taken direct contact with mediation in the above forms, and thus have materialized the fact and act of mediation. They are optimistic about mediation and they do their best to promote it, getting themselves actively involved in the implementation of mediation, depending on the case, directing clients to a mediator. However, implementing and promoting mediation cannot be done without the help of lawyers because mediation does not exclude from litigation but it includes them. A mediation process has as a neutral third party the mediator that leads the procedure and the parties can choose, and it is sometimes desirable to opt for the assistance of a lawyer to negotiate the best possible solution. Lawyers are necessary for the act of mediation, but they do not see things this way; as long as they feel mediation as a threat to their profession and not as an opportunity, mediation is not progressing as much as it should, although going forward. The lawyers’ competition is vital to the implementation and progress of the mediation in any state. This competition excludes the interference of the mediator in the lawyers’ affairs and vice versa.

6. The potential rivalry between mediation and arbitration created by lawyers

The arbitration and mediation are both procedures which do not exclude the presence and legal assistance of a lawyer. The lawyer in a law system is like a judge: the guarantor of citizen rights, although different functions, they have the same goal. The lawyers must have confidence in their position, a dominant one in legal systems, a position that gives them more opportunities when a conflict comes in their office, and so a litigant appeal to that lawyer. The lawyer will have to know all the procedures for the conflict resolution, providing to the client a suitable service. A lawyers who take the hand of his client and brings him directly in court without an analysis of the possibilities of settlement – amiable (through conciliation, mediation, direct negotiation) – is a lawyer who does not consider his client's interest and so it looks like one that does not respect the profession itself and the code of ethics. The client does not come with a problem to go with it in court, but comes with a problem to a lawyer so the latter consult him what would be the best option for solving the conflict, herein lies the first consultation to a lawyer. The best solution can be conceived only if the lawyer knows the proceedings benefits exceeding the judicial space. Thus a rivalry between mediation and arbitration we cannot say there is, as long as the call to these two extra-procedural civil institutions are not commonly used by law practitioners. The habit with courtroom seems in the detriment of the litigants and lawyers as well as the expense of the state. If the service is offered to the litigants it goes without saying that the State and law practitioners and the related professions - mainly mediators, have to give their competition and to make efforts to change this habit, to enter the positive and advantageous side of the procedural balance in terms of conflict resolution.

9. Conclusions

The European policies related to mediation are under development; however the progress is not so fast as the judicial system and social realty needs. In Romania, year by year, conflicts grow in number, a fact also indicated by the CSM Report¹²; the problem lies with each European state. Under the conditions that mediation has the capacity to intercept and filter a certain type and number of conflicts, promoting mediation and facilitating the access of litigants to it, offering incentives, appear as important and necessary steps for strategies of the legal system in 2014-2020 interval.

The European Union promotes the mediation and alternative methods for settlement of litigations, however each state has the liability to choose its domestic policies related to this matter, which incentives for litigants offers, which quality of mediation services it guarantees. The example of Italy, which, by introducing the compulsory mediation, had a considerable number of conflicts mediated and settled – 200,000 that should be a favourable precedent to have implemented a form of obligation of an amiable frame of discussions, before the matter is taken to court and opening the judicial process. Thus, we can impose into the market an advantageous and appropriate management of conflicts as a maxim efficient procedure. The perspectives concerning the obligation of mediation could be subjected to a unitary regulation in the European states, involving the litigants, attorney, judges and mediators points of view.

Implementing the dialogue and mediation culture had a considerable evolution, however the appeal into the differences settlement by mediation is still low due to reticence to novelty, the increment of using old ways, lack of vision on the factors involved in the enactment of mediation methods.

Offering the incentives shall be still considered the best and attractive stimulus for litigants, to turn to this alternative. Either as the exemption from the duty stamp for the approval of Mediation Agreements, or as the non-judiciary public support (initiatives in this regard existed at a given time in Romania) (Gorghiu, 2013¹³), settlement of mediation fees when the mediation was not successful in offering an extinctive solution to a conflict, can be forms of financial support for the parties trying to settle a conflict by mediation. At the same time, the sanctioning of parties refusing the mediation without any justification (this practice is implemented in Hong Kong¹⁴) could be an element in planning a compulsory mediation frame.

9. References

Anches, Diana-Ionela (2010). Medierea în viața social-politică/Mediation in the social and political life. Bucharest: Universitară Publishing House.

Benezic, Dollorez (2013). Sistemul peniteniciar din România, Cât ne costă un deținut/Penitentiary System in Romania, How much a prisoner costs us, material available at the address http://cursdeguvernare.ro/sistemul-penitenciar-din-romania-cat-costa-un-detinut-si-de-ce-nu-munceste.html, accessed in 1.02.2014.

Costea, Corina (2013). Experiment în dreptul civil francez – medierea familială obligatory/Experiment in the French Civil Law – Compulsory Family Mediation, material available at the address http://www.medierenet.ro/2013/08/23/experiment-in-dreptul-civil-francez-medierea-obligatorie-in-domeniul-familial/#.Uu6Fwz2Szpw, accessed in 1.02.2014.

Georgescu, Violeta Elena, Respectarea dreptului la viața familială în unele situații speciale în jurisprudența Curții Europene a Drepturilor Omului /Observance of the right to family life in certain special situations in the jurisprudence of the European Court of Human Rights, material available at http://fs.legaladviser.ro/4caa2a7a9cfd670527e9d32483d0dc2a.pdf, accessed in 1.02.2014.

Gorghiu, Alina (2013). La nivel mondial medierea are o șansă de 60-80% de reușită/Globally, mediation has 60-80% success rate, in the column Piața de Capital/Capital Market, available at http://www.bursa.ro/piata-de-capital/la-nivel-mondial-medierea-are-o-sansa-de-reusita-de-60-procente-80-procente-198416&articol=198416.html, accessed in 1.02.2014.

Gorghiu, Alina (2013). Ordinance on the legal public support should also provide the support related to mediation, available at http://www.medierenet.ro/2013/10/31/alina-gorghiu-ajutorul-public-judiciar-ar-trebui-sa-prevada-si-beneficierea-de-asistenta-cadrul-procedurii-de-mediere/#.Uu6QSj2Szpw, accessed in 1.02.2014.

Ilie, Dorin (2013). Efectele medierii în SUA/Effects of mediation in the U.S., available at http://www.juridice.ro/280558/efectele-medierii-in-sua.html, accessed in 1.02.2014.

Muchielli, Alex (2005). Arta de a Comunica/Communication Art. Bucharest: Polirom.

Stoica, Constantin Anca (2004). Conflictul interpersonal/Interpersonal conflict. Bucharest: Polirom.

Trascu, Diana (2014). Bilanțul medierii: sub 1% din toate cazurile din UE/Report on mediation: below 1% of all cases from the UE, available at http://www.juridice.ro/304477/bilantul-medierii-sub-1-din-toate-cazurile-din-uniunea-europeana.html, accessed in 1.02.2014.

*** CSM Report available at http://curieruljudiciar.ro/2012/04/03/csm-a-publicat-raportul-privind-starea-justitiei, accessed in 1.02.2014.

*** Medierea pe glob, forme diverse – probleme commune/Mediation in the world, different forms – common issues, material available at the address http://www.clubmediatori.ro/2014/01/09/medierea-pe-glob-forme-diverse-probleme-comune/?lang=ro, accessed in 1.02.2014.

*** http://www.restorativejustice.org/university-classroom/04restorative%20justice%20theory, accessed in 1.02.2014.

Refbacks

• There are currently no refbacks.