SIMBOTIN REMUS - Lawyer and Mediator

What is the most effective way to resolve conflicts?

It is possible to resort to mediation, during the trial phase or before it. Why should a judge decide how to resolve a conflict between you and another person when you can be the one who resolves the dispute? Does someone else know your problems better than you? Who can find a better solution for you, a court or is it even in your power to find it? Mediation gives you the opportunity to resolve all the existing misunderstandings together with the party you are in conflict with and to prevent the appearance of others. The mediator, the person specialized in conflict resolution, is the one who through neutrality, impartiality and confidentiality helps you succeed. By accepting mediation, you resolve a conflict in the shortest possible time, you reduce the stress inherent in certain processes and, last but not least, you save money (stamp duties, lawyer and expert fees, etc.). The mediator cannot impose a solution on you, the key to resolving the conflict lies with you!

What is mediation?
Mediation is an optional way of resolving conflicts amicably, with the help of a specialized third person as a mediator, under conditions of neutrality, impartiality and confidentiality.
Mediation is based on the trust that the parties give to the mediator, that the person is able to facilitate the negotiations between them and to support them in resolving the conflict, by obtaining a mutually convenient, efficient and sustainable solution.

When can mediation be used?
If the law does not provide otherwise, the parties, individuals or legal entities, can resort to mediation voluntarily, including after the initiation of a trial before the competent courts, agreeing to resolve in this way any conflicts in civil, commercial, family matters, in criminal matter, as well as in other matters, under the conditions provided by this law.
Individuals or legal entities have the right to resolve their disputes through mediation both outside and within the mandatory procedures for the amicable resolution of conflicts provided by law.

Who are the mediators?
A person who meets the following conditions can be a mediator:
a) has full exercise capacity;
b) has higher education;
c) has a working experience of at least 3 years or has graduated from a master's level postgraduate program in the field, accredited according to the law and approved by the Mediation Council;
d) is fit, from a medical point of view, to exercise this activity;
e) enjoys a good reputation and has not been definitively convicted for committing an intentional crime, of a nature to affect the prestige of the profession;
f) has completed the courses for the training of mediators, under the conditions of the law, with the exception of graduates of post-graduate programs at master's level in the field, accredited according to the law and approved by the Mediation Council;
g) was authorized as a mediator, under the conditions of this law.
 

Where do we find a mediator?
The authorized mediators are registered in the Table of mediators, drawn up by the Mediation Council and published in the Official Monitor of Romania, Part I.
The mediation council has the obligation to periodically and at least once a year update the table of mediators and make it available to those interested at its headquarters, the courts, the local public administration authorities, as well as at the headquarters of the Ministry of Justice and on the Internet page his.

Where does mediation take place?
The parties in conflict present themselves together to the mediator. If only one of the parties is present, the mediator, at its request, will address the written invitation to the other party, in order to accept the mediation and conclude the mediation contract, setting a deadline of no more than 15 days. The invitation is sent by any means that ensures confirmation of the receipt of the text.
How does mediation take place?
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 methods and techniques used by the mediator must exclusively serve the legitimate interests and objectives pursued by the parties in conflict. The mediator cannot impose a solution on the parties regarding the conflict subject to mediation. The parties in conflict have the right to be assisted by a lawyer or other persons, under the conditions established by mutual agreement. During the mediation, the parties can be represented by other persons, who can make documents of disposition, under the conditions of the law.
The claims made during the mediation by the parties in conflict, by the persons stipulated in art. 52 and to art. 55 para. (1), as well as by the mediator, are confidential to third parties and cannot be used as evidence in a judicial or arbitration proceeding, unless the parties agree otherwise or the law provides otherwise. The mediator will draw the attention of the people participating in the mediation under the conditions of art. 52 on the obligation to maintain confidentiality and will be able to request them to sign a confidentiality agreement.
If, during the mediation, a situation arises that affects its purpose, the mediator's neutrality or impartiality, he is obliged to bring it to the attention of the parties, who will decide on the maintenance or termination of the mediation contract. The mediator has the right to abstain and close the mediation procedure, proceeding according to the provisions of art. 56, which applies accordingly. In this situation, the mediator is obliged to return the fee proportional to the uncompleted mediation stages or, as the case may be, to ensure the continuation of the mediation procedure, under the conditions established by the mediation contract.
If the conflict subject to mediation presents difficult or controversial aspects of a legal nature or in any other specialized field, the mediator, with the agreement of the parties, may request the point of view of a specialist in the respective field. When requesting the point of view of a specialist outside his office, the mediator will highlight only the controversial issues, without revealing the identity of the parties.
The mediation procedure is closed, as the case may be:
- by concluding an agreement between the parties following the resolution of the conflict;
- by the mediator's finding that the mediation has failed;
- by submitting the mediation contract by one of the parties.
In the event that the parties concluded only a partial agreement, as well as in the cases provided for in para. (1) lit. b) and c), any party can address the competent court or arbitration.
At the end of the mediation procedure, in any of the cases provided for in art. 56 para. (1), the mediator will draw up a protocol to be signed by the parties, personally or through a representative, and by the mediator. The parties each receive an original copy of the minutes.
When the parties in conflict have reached an agreement, an agreement is drawn up that will include all the clauses agreed to by them and which has the value of a private signature. The agreement of the parties must not include provisions that affect the law and public order, the provisions of art. 2 being applicable. The understanding of the parties may be affected, under the law, by terms and conditions. The agreement of the parties can be subject to the verification of the public notary in order to authenticate or, as the case may be, the approval of the court, under the conditions provided for in art. 63.