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Mediation as an alternative to conflict settlement.

Lately, disturbing facts has happened. The number of lawsuits is growing, reaching a sum of over four million cases in the courts of law, taking into account that in Romania live about 20 million people. The increase of the number of trials is of 30% in 2010 only. In this way, the legal system spends about 250 million a year to resolve cases in court. This is another reason that justifies the emergence but also the use of mediation in Romania. In these circumstances, mediation could be the solution for avoiding the overload of the prosecution offices and the courts and for limiting the average duration of trials. Mediation is an alternative related to the justice system, with the purpose of settling conflicts between parties, by which a neutral third party, which is impartial and free of decision-making power--the mediator--helps parties to find together a solution meant to resolve the misunderstandings between them.

Mediation is part of the big family of Alternative Dispute Resolution methods--ADR. Although the objective of mediation is resolving conflicts, the major distinction of this method is that it operates by seeking to reach an agreement with the involvement of parties, which will later support the solution found in this way. As we will see in the definitions of the concept of mediation, many authors consider this method as "an extension of the negotiation process". Mediation has often accompanied negotiations as an informal coordinate as such an intervention reduces the barriers in dispute resolution and adds value to the negotiation process. Obviously, negotiation accompanied by mediation tends to produce or to raise what the sides involved desire. It is true that formal or contractual mediation is based on established and accepted rules and procedures.

Mediators do not have formal powers on the results negotiation and they can not solve the conflict or impose a solution by themselves. Instead, their effectiveness comes from the ability to meet individually with the parties, to provide an understanding of the issues in dispute, to identify possible areas of compromise for each party and to encourage parties to make compromises to achieve an agreement. The term "mediation" was first introduced in the United States of America, as a specialized notion in 1970 and it was taken as such in the English language from German. (1) Germans name mediation "die mediation," the French "la mediation" and in Romania we call it "mediere." Forms of mediation can be found in Greece, in the Bible (Matthew 5.9 to 1, Timothy 2.5 to 6, the Corinthians 6.1 to 4), in traditional communities in Asia and Africa and the 14th century England "the Question Mediators."

In Romania, the first legislative step for mediation was made by the Decision no. 1052 of September 4 2003 on approval of the Reform Strategy for the Judicial System. From the institutional point of view, a key role to implementing this system in Romania has become the "Craiova Mediation Center" set up under the administration of Craiova City Court and Dolj County Court by Ministry of Justice Order no. 1391/C/2003. This center started its activity in November 2003 along with the reference to mediation of the first cases from the courts in Craiova. (2) In this institution, as part of a national training program for mediators, began the first training courses for mediators with Romanian and American instructors. This program had as partners the Ministry of Justice, the U.S. Embassy and the Dolj County Bar.

In processes and applications for civil and commercial matters, before the introducing of the writ of summons, parties may try to solve the dispute through mediation. According to art. 1 of Law no. 192/2006, mediation is a facultative way of resolving conflicts amicably, with the help of a third party, a trained mediator in conditions of neutrality, impartiality and confidentiality. (3) Mediation necessarily implies a mediation convention between the parties in conflict--a convention included in the generic category of named contracts and subject to the same requirements for signing and validity. Also, mediation implies virtually, if necessary, a second convention of "agreement" on the way of settling dispute, understanding or agreement that can sometimes acquire the form of a transaction, judicial or extrajudicial, as the case may be. (4)

The European Commission elaborated on 22 October 2004, a project "Directive of the European Parliament and Council on certain aspects of mediation in civil and commercial matters", endorsed by the European Economic and Social Committee on 9 June 2005, directive that was applied in the member states of the European Union starting January 1st 2007. This directive of the European Parliament is known as Directive 2008/52/EC. According to art. 3 of Directive 2008/52/EC, "mediation" means a structured process, regardless of the named it bears or it is referred to, in which two or more parties involved in a conflict attempt, on their own initiative, to reach agreement on the resolution of their dispute with the assistance of a mediator.

The same Directive names the mediator as any third party called to conduct the mediation process in an effective, impartial and competent manner, regardless of the designation or the profession of the third party in that Member State and regardless of the manner in which the third party was appointed or requested to perform the mediation. Law no. 192/2006 defines the mediator as the person who fulfills the following conditions: it promotes the mediation activity and represent the interests of authorized mediators with the purpose of ensuring the quality of mediation services; it has higher education, it has a work seniority of at least three years or it has completed a post graduate master's degree program in the field, which was accredited under the law of mediation and approved by the Mediation Council; it is suitable, medically, for performing this activity, it enjoys a good reputation and has not been immutably convicted for committing an intentional crime that is likely to affect the prestige of the profession; that person graduated the mediators training course, under the law, with the exception of graduates of master programs in the field, accredited under the provisions of the law and approved by the Mediation Council; it has received the mediator authorization.

Mediation can be: extrajudicial--out of court, therefore before the referral of the case to the Court, made in order to prevent resolving the dispute through judicial decision or judicial, during a trial, made with the purpose of terminating the trial, by the will of the parties and by an amicable solution, under certain aspects, under judicial control and may be acknowledged by the judge through an expedient decision. Both extra-judicial mediation and judicial mediation may be exclusively consensual or institutional. Extrajudicial mediation belongs to the domain of contracts, legal mediation, accepted or agreed on by the parties under the provisions of the law, is an institution of Civil Procedure, a possible way for settling the dispute. (5)

Besides "economy of stress, time and money," mediation offers tangible benefits to the parties directly involved. The date and time at which the mediation session takes place is set by the parties according to their agenda. In court, the deadlines are imposed and disregard the involved parties' schedule. The mediation session may be rescheduled if the parties so request. A mediation session can be programmed as easily as any other type of meeting (business or personal). There is no time limit for the mediation session; most mediations are completed after a single meeting. The duration of the mediation may oscillate from a few tens of minutes to several hours. Mediation may also result in partial agreement in which case it is possible to schedule another mediation session at a later date. The parties, by mutual agreement, may choose the mediator. This advantage does not exist in a court trial. The choice of mediator by the parties increases their confidence in achieving the desired result.

The room where the mediation takes place and the room which holds a trial have little in common: the problems of the parties do not get to be known by others as mediation is confidential. Formalism prevails in court, certain strict procedural rules must be followed, the speeches are done in a certain order, and so on. During mediation the focus is on the will and interests of the parties instead. At the mediation session is permitted only the presence of people approved by the parties.

In a trial, the solution is imposed on the parties by a judge after having seen the evidence in the case. The mediator can not impose anything, the parties have to decide whether and under what conditions an amicable solution is advantageous. Traditionally the mediator is seen as a neutral person that the parties consider impartial, experienced in conflict resolution and believed to be helpful. In many countries, it has been developed an organized system of official recognition of the profession of mediation, which helps to increase the credibility of that person. In our country too, some non-governmental organizations organize mediators training course, but the process is not completed at the governmental level. The idea of a neutral person which intervenes in the mediation of a dispute between two parties seems pretty simple and attractive.

Obviously, mediation is much more elegant than the classic trial. That is why it is so used throughout the civilized world. Satisfactions of the parties if they reach an agreement are even higher as they are due to the will and involvement of the parties. Through mediation existing conflicts are terminated and in the same time the emergence of other misunderstandings is prevented. At the end of mediation, the parties shake hands and leave with less problems than they had previously to the mediation meeting. The main difference from the classical trial is that during the entire process of mediation parties communicate. At the end of a trial, communication between parties disappears being replaced by a deeper state of conflict because, unlike mediation, in court there are winners and losers. The mediator does not judge the parties and does not give verdicts. His mission is to facilitate dialogue between the parties, dialogue that generates options for solving the existing divergences.

By resorting to mediation the parties do not give up the classical justice. If they fail to settle their conflict through mediation, they have the possibility to address the court, as they had it also before resorting to mediation. Finally, mediation is a viable alternative to the judicial trial, it involves no risk to the parties, which control the procedure on its entire duration, and any party may withdraw at any time in the mediation process. Even in this situation, if a solution is not found, the parties will leave the mediation table knowing more about the differences between them and being able at least to reduce the distance between their originally intended positions.

REFERENCES

(1.) Lazar, I. (2006), "Mediation--A Study on Alternative Methods of Dispute Resolution" Commercial Law Magazine XVI(3): 51.

(2.) Ibidem, p. 53.

(3.) Law no. 192/ May 16th 2006, on Mediation and the profession of mediator, published in Official Gazette Journal no. 441 / 22 May 2006 amended by Law no. 370 of 26 November 2009, published in Official Gazette Journal no. 831 / 3 December 2009.

(4.) Deleanu, I. (2006), "Mediation in the Civil Trial," Law Journal XVII(10): 64.

(5.) Ibid., op. cit., p. 75.

BIBLIOGRAPHY

(1.) Deleanu, I. (2006), "Mediation in the Civil Trial," Law, year XVII, 3rd series, no. 10.

(2.) Gorea, B. (2009), "Judicial and Extra-judicial Conflict Mediation" Law, no. 6, Bucharest, C.H.Beck.

(3.) Lazar, C. (2006), "Alternative Methods of Dispute Resolution (ADR), with Special Regard on the Mediation," Law, year XVII, 3rd series, no. 3.

(4.) Lazar, I. (2006), "Mediation--A Study on Alternative Methods of Dispute Resolution," Commercial Law, year XVI, no. 3, Bucharest: Lumina Lex.

(5.) Law no. 192/ May 16, 2006, Law on Mediation and the profession of mediator, published in the Official Gazette Journal no. 441 / May 22 2006 amended by Law no. 370 of November 26 2009, published in the Official Gazette Journal no. 831 / 3 December 2009.

ROXANA TOPOR

toporroxana@yahoo. com

Spiru Haret University, Constantza

CRISTINA BOROIU DRAGOMIR

cristinaboroiu3 @yahoo. com

Spiru Haret University, Constantza
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Author:Topor, Roxana; Dragomir, Cristina Boroiu
Publication:Contemporary Readings in Law and Social Justice
Article Type:Report
Geographic Code:4EXRO
Date:Jan 1, 2012
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