The Mediation Procedure in Romania

• Author: Alexandrina Zaharia, Monica Saleh-Ali
• Position: Danubius University of Galati, Law Faculty - Galati Court
• Pages: 399-403

399

The mediation procedure in Romania

Alexandrina Zaharia1

Mediator Monica Saleh-Ali2

1Danubius University of Galati, Law Faculty, alexandrinazaharia@univ-danubius.ro

2Galati Court

Abstract: The mediation activity as an alternative way of solving conflicts occupies an important place in modern

society. Currently, the mediation reached its maturity worldwide being adopted without reservations.

The future of solving conflic ts is undoubtedly closely r elated to mediation. XXth century is the century of

solving

conflicts

amiably outside the court room. In Romania a nd the mediation profession were regulated by the Law no.

192/2006, on the basis of the idea that mediation is one of the major themes of the reform strategy of the judicial

system 2005-2007. By adopting the mentioned law it was followed the idea of reducing the volume of activity

courts, and therefore, r elieve them of as many cases, with the direct effect on the quality of justice. Mediation is a

voluntary process in which the parties with a neutral and impartial third party, without power of decision - the

mediator - who is qualified to assist the parties to negotiate, facilitating the communication between them and

helping them to reach a unanimous effective and sustainable agreement. The parties may resort to

mediation before

or after triggering a trial. Mediation can be applied, in principle, on any type of conflict. However, the

Romanian legislator has established special stipulations on conflict mediation in criminal, civil and family

law. Although not expressly provided, the st ipulations regarding the civil conflicts and also apply to commercial

conflicts. Therefore, the mediation is applicable to most types of lawsuits, except those relating to personal

rights. As a "win- win" principle, the mediation does not convert any of the parties defeated or victorious; all

those involved have gained by applying this procedure.

Keywords: mediation, mediator, conflict, alternative method, confidentia lity, mediation agreement.

1. Brief history of

mediation

To understand the genesis and evolution of mediation as a concept is necessary to study the etymology of

the word “mediation”. The origins of the word is Latin, originally was used in another form than

the

current one. The term "mediation" has its etymological origins in the Latin word "mediare”.

Original

meaning of the word is translated in “to divide into two”. The term was introduced in the U.S., in

1970

and was acquired for English and German language. The term "mediation" has subsequently

become the

name of the most important alternative ways of extinguishing conflict. Explanatory dictionary

of the

Romanian language explains the term “mediere”/"mediation" through

“mijlocire”/"intercession".

Under

the new Explanatory Dictionary of the Romanian language, “a media”/"to mediate" means „a mijloci, a

interveni în calitate de intermediar pentru a înlesni”/“intercession, to intervene as

an

intermediary

means to facilitate”. Human society has tried, over the time, to develop

indigenous

methods of

conflict resolution other than the traditional ones. In this context, the mediation was born, as a reaction to

the existing

inefficiency.

Mediation has been used since ancient times, Phoenicians, Greeks and Romans solved their

conflicts

through mediation. Mediation is a really old weapon, and it was known by man since the first years

of its

existence. According to historians, the first cases of mediation were known in the Phoenician

trade.

The practice of mediation has developed clearly in Ancient Greece and then in Roman

civilization

(Roman law recognized mediation). Subsequently, the mediation was found in all modern societies. It is

assumed that mediation was used in Babylon, in ancient Mesopotamia. Justinian is the first

Roman

Emperor who recognized mediation in the empire. In ancient Rome the mediator knew

different

names: "internuncius", "medium", "intercessor", “philantropus”, “interpolator”,

“conciliator”,

“interlocutor”, “interpres” and, finally, "mediator". Confucius (551-479 BC) considered that the

best

way of solving disputes was made amicably and not through coercion. Buddhist traditions

encouraged the

settlement of disputes by consensus rather than by coercion. And now, in China the focus is

on

conciliation and mediation in the purpose of stopping the conflict, with about 6 million of

local