The Mediation Procedure in Romania

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

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 conflicts is undoubtedly closely related to mediation. XXth century is the century of solving conflicts amiably outside the court room. In Romania and the mediation... (see full summary)

 
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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

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