| What is the most efficient way to solve conflicts? It can be done through mediation, while in trial or before the trial. Why should a judge decide how to solve a conflict between you and another person when the one who solves the dispute can ne yourself? Who knows your problems better than you? Cand a court find a better solution for you, or is it in your power to find it? Mediation offers you the possibility to solve all existing misunderstandings yourself, along with those whom you are in conflict with, and prevent the emerge of other. The mediator, the person trained in conflict resolution, is that who throught neutrality, impartiality and confidentiality helps you succeed. By accepting mediation you solve the problem in the shortest time, you reduce the inherent stress during a trial, and last but not least you save money (stamp duty fee, attorney and expert fees, etc.) The mediator can not impose a solution, the key to conflict resolution is in your hands! |
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Mediation is an optional way of solving conflicts amicably, with the help of a third person, trained as a mediator, in conditions of neutrality, impartiality and confidentiality.
Mediation is based upon the trust that the parties give to the mediator, as the right person to facilitate the negotiations between them and to support them for the settlement of the conflict, by obtaining a mutually convenient solution, effective and sustainable.
(Article 1 paragraph 1 and 2 of Law no.192/2006)
When is mediation possible?If the law doesn't provide otherwise, the parties, natural or legal persons, may voluntarily resort to mediation, even after the beginning of a trial, by agreeing to settle in this way any disputes, civil, commercial, family, criminal, or other issues, under the conditions provided by the law.
Natural or legal persons have the right to solve their disputes both outside and within the mandatory procedures for amicable settlement of conflicts provided by the law.
(Article 2 paragraph1 and 3 of Law no.192/2006)
Who are the mediators?The mediator may be the person who meets the following conditions:
a) has full legal capacity;
b) is educated;
c) has at least 3 years of experience in the field or completed a postgraduate Master's Program in the domain, accredited by the law and approved by the Board of Mediation;
d) is fit, in terms of health, for pursuing this business;
e) enjoys a good reputation and was not definitely sentenced for committing a deliberate crime, likely to affect the prestige of the profession;
f) graduated, under the conditions of law, the training courses of mediators, except those that completed a postgraduate Master's Program in the domain, accredited by the law and approved by the Board of Mediation;
g) was approved as a mediator, under conditions of the present law.
(Article 7 of Law no.192/2006)
Where to find a mediator?Authorized mediators are subscribed in the Table of mediators, established by the Board of Mediation and published in the Official Gazette of Romania, Part I.
The Board of Mediation has the obligation to regularly update, at least once a year, the Table of mediators and to make it available for those who are interested, at their offices, at the courts, at the local public administration authorities, as well as at the Ministry of Justice and on its website.
(Article 12 paragraph 1and 3 of Law no.192/2006)
Where does the mediation take place?
The parties that are involved meet at the mediator. In the case in which only one party is present, the mediator, at the request of the present party, will send a written request to the other party, for the acceptance of mediation and signing the mediation agreement, setting a maximum deadline of 15 days. The invitation is send by any means that ensure the confirmation that the text has been received.
(Article 43 paragraph. 1 of Law no.192/2006)
What happens at a mediation?Mediation is based on the cooperation of the parties and the use, by the mediator, of some specific methods and techniques, based on communication and negotiation. These methods and techniques used by the mediator must serve only the legitimate interests and objectives of the parties in conflict. The mediator can not impose a solution to the conflict under mediation.
Warring parties are entitled to be assisted by a lawyer or by other persons, in the agreed terms. During mediation parties may be represented by another person, who is entitled to make acts of deposition, according to law.
Claims made during the mediation by the parties in conflict, by the persons referred to in art. 52 and art. 55 paragraph. (1), and by the mediator are confidential towards third parties and may not be used as evidence in legal proceedings and arbitration, unless the parties agree otherwise or the law provides otherwise. The mediator will draw the attention of persons participating at the mediation in terms of art. 52 on the obligation of confidentiality and may request the signing of a confidentiality agreement.
If, during mediation, a situation occurs that is likely to affect the purpose of mediation, the neutrality or impartiality of the mediator, then the mediator is obliged to bring it to the knowledge of the parties, which will decide on continuing or terminating the mediation contract. The mediator has the right to refrain and to close the mediation, proceeding under the provisions of art. 56, which apply accordingly. In this situation the mediator is obliged to refund the fee proportional with the incomplete stages of mediation or, where appropriate, to ensure the continuation of the mediation process, in terms set by the mediation contract.
In the case in which the conflict presents difficult or controversial aspects of the legal nature or any other specialized field, the mediator, with the agreement of the parties, may request the view of a specialist in the domain. When he requests the opinion of a specialist outside his own office, the mediator will mention only the controversial issues without disclosing the identity of the parties.
Mediation procedure is closed if:
- an agreement is reached between the parties after the conflict is solved;
- the mediator realizes that the mediation has failed;
- one party submits the mediation contract.
If the parties have completed only a partial understanding, as well as in the cases stipulated in paragraph 1, letters (b) and (c), any party may apply to a court or a competent arbitration court. In the closure of the mediation process, in any case referred to in art. 56 paragraph (1), the mediator will prepare a report to be signed by the parties, personally or by a representative, and by himself. The parties receive a copy of the original report.
When the warring parties have reached an understanding, an agreement will be drafted which includes all the agreed terms and has the value of a signed document. The common agreement should not contain provisions that affect the law and order, provisions of art. 2. being applicable. Common agreement can be affected, according to law, by terms and conditions.
Common agreement can be subjected to public notary verification for authentication or, when appropriate, for sending to the court of law, as provided in art, 63.
(Articles 50-59 of Law no.192/2006)
Can we abort mediation? During the stages of the mediation process, any of the conflicting parties has the right to terminate the mediation contract by acknowledging in written the other party and the mediatior. The mediator takes note of the cancellation of the mediation process and within 48 hours from receiving the acknowledgement, writes a closure report for the mediation process. If one of the conflicting parties does not appear at the mediation, without terminating the mediation contract in terms of par. (1), the mediatior is obliged to make all the necessary procedures to establish the real intention of the concerned party and, when appropriate, to continue or close the mediation procedure.
(Article 60 from Law no. 192/2006)
What are the advanteges of mediation? For the mediation procedure, the trial of civil cases by the court or arbitration court will be suspened at the request of the parties, in terms of art. 242 par. 1. point 1 from the Civil Procedure Code. The deadline is suspended during the mediation procedure, but not more then 3 months form the signing date of the mediation contract. The pending request for redocketing is exempted from judicial stamp duty.
If the conflict was settled through mediation, the court shall pronounce at the parties request, a decision under the provisions of Art. 271 of the Code of Civil Procedure. With the delivery of the decision, the court shall order, at the request of the interested party reimbursement of the judicial stamp duty paid.
(Articles 62. And 63 from Law no. 192/2006)
Fields of activity: - Civil Law: estate claims, revendication, claims, discharges, the obligation to make, partition.
- Family Law: separation, partition, division of common property, entrusting minors etc.
- Criminal Law: complaints
- Commercial Law: payment orders, claims, discharges
Others:
- Road traffic accidents: with light damage, injuries, etc.
- Disputes between landlords and associations of owners and tentants
- Disputes concerning consumer protection
- Ethnic conflicts (to the extent that the conflicts are not covered by other
Mediation is available for civil disputes, commercial disputes and disputes in consumer protection fields (regarding the purchase of defective goods or services, breach of contract terms, the existence of unfair terms), family disputes and prior offences complaints (assault, physical injury, theft between spouses, abuse of confidence, rape, breaking and entering, possession disorder). It may be asked in issues regarding succession, housing and neighborhood relationships, continuation of marriage, exercisesing parental rights, establishing the domicile of children and the parents contribution for the children's support.
In other words romanians can tell the mediator they don`t want to share good and bad and the mediator will send their understanding of marriage dissolution to competent courts to pronounce the divorce.
Mediations can be scheduled for any type of conflicts where the parties accept the dialogue as a mean of interests clarification in order to reach a common understanding.
Our office has the logistics and necessary space-corresponding to the principle of confidentiality and for carrying on the mediation sessions.
Mediation saves time and money
Compared to a classic trial before courts, mediation is much faster and cheaper, basically, you can solve the problem yourself, in one session of mediation theoretically even in a day or several hours.
The day and time of the mediation are set depending on your time and your wish, no one will impose on you a certain day or time. Mediation starts with the premises that the conflicting parties are not counter parties.
The parties present at the mediation are not counter parties, but people who try together to find a solution to their problem.
The fee policy considers:
- the nature , the novelty and the difficulty of the conflicts subject;
- the importance of the interests involved;
- the time allocated by the mediator to the mediation sessions
- the parties benefits and profit results
- wealth of the parties
The fee will be borne by the parties equally, if not otherwise agreed
Expenditures made for the mediation will be borne by the parties (mails, telephone calls, faxes, means of transpoartation etc.).
(Article 45, the final part of Law no. 192/2006)