Mediation requires respect.
The history of mediation is long and rich in details. We encounter mediation in different cultures and countries in all sectors of social interaction: education, religion, employer-employee relationships, legal systems, criminal law, family, the environment, communities, neighborhoods and all levels of government.
By adopting the Law no. 192/2006 on the mediation and organization of the profession of mediator, this has opened the way to extrajudicial settlement of numerous civil, criminal or commercial cases, emphasizing the interests of the parties and not the legal aspects of the conflict.
Choosing mediation to identify solutions in the interest of all parties has a number of advantages:
- through mediation, the parties can reach solutions that respond to their real needs, participating directly and with full decisional power over the purpose of the conflict;
- the solution negotiated in a mediation session is convenient for all those involved, affected or interested in the conflict;
- by resorting to mediation, court costs (stamp duty, lawyers’ fees and experts, etc.) are substantially reduced;
- choosing mediation saves time and avoids the stress generated by a litigation in the courtroom as well as the public exposure to the personal problems faced by the parties;
- mediation helps to relieve the courts of many causes that can be satisfactorily resolved by the parties in their own interests through the intervention of a mediator.
Mediation is therefore an alternative and optional way of resolving conflicts; mediation is a voluntary and confidential procedure; mediation involves mediator intervention that facilitates communication between the parties, which is neutral and impartial and helps the parties find a mutually acceptable solution.
Through mediation, it is possible to resolve conflicts arising from: family relationships, commercial relations, housing, neighborhood, co-ownership, succession, contract performance. Mediation can also be used for solving for conflicts in schools (teachers – students – parents), in organizations (employees – employers), in traffic and in any other public places.
Although the goal of mediation is to resolve conflicting situations, the major distinction with which this method operates is that mediation seeks to reach an agreement with the involvement of the parties that will then support the solution.
Mediation is the art by which a person specialized in mediation, called a mediator, turns a conflict into an agreement. It seems simple and complicated at the same time. The mediator helps conflicting parties generate options, makes them understand that they have the choice between these options, starting from the idea that each person has a different point of view.
Mediators don’t have formal powers over the results of the negotiation and can’t solve the conflict or impose a solution on their own. Instead, their efficiency comes from the ability to meet individually with the parties, to ensure an understanding of the issues at stake, to identify possible compromise areas for each party, and to encourage parties to compromise and reach an agreement.
WHO ARE THE MEDIATORS?
Mediators are persons authorized to practice mediation as a mediator. Members of this Council are elected by mediators and validated by the Ministry of Justice. Mediators are persons independent of the parties and have the obligation to exercise their profession in compliance with the following obligations:
- To maintain the confidentiality of information received from parties engaged in mediation;
- To maintain neutrality towards the parties and to act impartially as a mediator;
- To ensure respect for the parties’ freedom, dignity and privacy.
If the mediator violates the provisions of the mediation law, then he or she will respond disciplinarily or, in the event of injury in the exercise of their profession, they will respond civilly to the parties involved.
- People who can appeal to mediation. Any natural or legal person may address the mediator. Two or more parties may participate in the mediation, depending on the number of those involved in the conflict.
- The moment when mediation can take place. Interested parties can address the mediator both before reaching the court and during the trial.
- The mediation procedure is optional for the parties. There is no obligation for parties to address the mediator, being at their discretion to resort to mediation or to use another way of settling the conflict-court, arbitration, etc.
- Mediation contract. The mediation procedure will only take place after the conclusion of a written contract between the mediator and the parties involved in the conflict. The mediator is entitled to receive a fee agreed with the parties.
- The technique of mediation. Mediation is based on the cooperation of the parties and the use by the mediator of specific methods and techniques based on communication and negotiation.
- The role of the mediator. The mediator can’t impose on the parties a solution to the mediation conflict. They have the role of assisting the parties and supporting them in their common approach to settling the conflict, in order to obtain a convenient solution for all those involved in mediation.
- The rights of the parties.
- The parties have the right to accept the participation in the mediation procedure, and the acceptance must also be given in written form.
- The parties have the right, during mediation, to be represented by lawyers or persons empowered by special proxy.
- The parties have the right to unilaterally terminate the mediation contract at any stage of the procedure.
- The result of mediation. Mediation may be terminated, as the case may be, by the conclusion of an agreement between the parties, by the mediator’s finding of the failure of mediation or by the denunciation of the mediation contract by one of the parties;
- The terms of the agreement concluded by the parties.
- The parties have the right to conclude a settlement without its provisions prejudicing law and order.
- Understanding of the parties may be subject to verification by a public notary for the purposes of authentication or, as the case may be, for the court’s consent, under the conditions established by law.
MEDIATION IN CIVIL MATTERS
If the litigation has been deducted from the court, its settlement through mediation may take place on the initiative of the parties or at the court’s recommendation accepted by the parties. Upon closing the mediation procedure, the mediator is obliged to inform the court of the outcome of the mediation. Where a settlement has been reached, the court may, at the request of the parties, issue a judgment, taking note of the parties’ transaction and order the restitution of the stamp duty.
MEDIATION IN CRIMINAL MATTERS
Mediation can’t be imposed on either party, and this has to be accepted, both by the injured party and by the perpetrator. Mediation will take place by guaranteeing the right of each party to legal assistance or the services of an interpreter.
DIFFERENCE BETWEEN MEDIATION AND OTHER FORMS OF LITIGATION SOLUTION
- The difference between mediation and arbitration. The main difference between the two forms of conflict resolution arises from the fact that by deducting a dispute in arbitration, the arbitrators decide on how the dispute is settled between the parties. In the case of mediation, the mediator doesn’t solve the litigation, but assists the parties in negotiating and obtaining a convenient solution for all involved in the conflict.
- The difference between mediation and conciliation. In the event of conciliation, the parties negotiate between them how to resolve the conflict. In the case of mediation, the parties negotiate between themselves, but assisted by a mediator, an independent and neutral person to the parties.