Mediation -Voluntary or Mandatory Procedure

• Author: Angelica Rosu, PhD
• Position: Senior Lecturer. "Danubius" University of Galati
• Pages: 121-126

Page 121

Under the circumstances of recent modifications brought by the 192/1996 Law, concerning mediation and structure of mediator profession,¹ it has been held that "from 2010 March the 3-rd, mediation will become obligatory.^."² Usually, thePage 122information offered by the media referring to a judicial institution must be regarded with infinite limitations, because sometimes the people who offered it are not specialists in this field.

Nevertheless, two are the motives for which we will take this information into discussion. First of all, on related internet sites, they try to accredit the idea that mediation will become an obligatory procedure. Second, having in mind that promoting mediation as alternative disputes resolution mean has encountered serious difficulties (generated by the legislator slowness, the two years delay in publishing the first Authorised mediators board, the distrust of both citizens and magistrates beside the possibility to solve a litigation other than by trial), one misinterpretation could jeopardise from the very beginning the whole meaning of this institution.

For us to be able to give an answer to this question, we take into consideration that in doctrine, depending of mediation source criteria, it has been classified in voluntary mediation and mandatory mediation. (Păncescu, 2008, pp. 5-6) The mediation can be called voluntary when parties resort to this kind of procedure at will. If legislation stipulates that the parties can be also obliged to submit mediation, then we will be talking about mandatory mediation.

But in reality, it has been alleged that mediation can be only voluntary³, (Beha (II), September 2002, p. 11)this aspect has been insisted over in almost all legal definitions concerning mediation, since this feature represents the essence of this procedure. The essentially voluntary character of mediation is also emphasized in 1^st paragraph of European Parliament and European Council Direction no. 2008/52/CE⁴ concerning some aspects of mediation in civil and commercial matters, in which it is shown: „The mediation stipulated in this Direction should constitute a voluntary procedure, meaning that parties are themselves responsible of thePage 123procedure, they can organise it as they wish, and they also can conclude it in any moment. Nevertheless, the 14^th paragraph of this European Union settlement stipulates that „ none of those provisions must interfere with the national legislation which provides that resorting mediation is obligatory or is subject of incentives or penalties, provided that such legislation doesn't hinder the parties' wrights to access the judicial system".

The Romanian legislator has initially established, in 1^st article of the 192/2006⁵Act, the particular optional character of mediation. We previously stated (Rou, 2009, p. 170) that it has been imposed to be taking into consideration the possibility of establishing an obligatory character to resort to mediation in specific stipulated cases and for certain litigation categories, as the legislator stipulates in the Civil Procedure Code 720th art., which even though is referring to conciliation, it has at its base the same principles and provides the same purpose.

It is sure that it could be objected in the meaning that the chances of mediation success, an eminently voluntary procedure, could be compromised ab initio, since parties must freely decide upon this manner of solving their dispute, without being forced in any way, including through legal provisions. There are studies which demonstrate that, if mediation is imposed, it can produce some agreements that are not necessarily the fruits of a consensual decision. Such agreements are more susceptible to be less durable, and so failing to materialize the purpose of mediation. (Baias & Belegante, 2000, p. 85)

Even so, at least until awareness of the potential justice appellants...