Globally, mediation has a chance of success of 60%-80%

Reporter: What is your opinion on the introduction, starting on February 15th, 2013, of the mandatory information sessions concerning mediation?

Alina Gorghiu: It's been a few years since I can no longer say that I am completely unbiased when it comes to mediation, but I can answer you, and hope I do so with a dose of realism, that this addition to the Romanian legislation, represented by the mandatory and free-of-charge information session concerning mediation, is an extremely positive practice.

The global experience proves that mediation has a chance of success of approximately 60-80% in those cases where the parties show up for mediation.

Unfortunately, Romania is a litigious culture. Most of its citizens live under the impression that the only solution for a conflict is to file a lawsuit in court.

Despite this trend, statistics show that Romanians don\'t trust the Romanian legal system. The long time it takes to solve the lawsuits, the high expenses, the rulings which are often perceived as unfair, issued by the court, are most often the reasons which underlie this lack of trust.

The efforts made in the last few years to promote mediation as an alternative to a country\'s legal system have proven insufficient, as there is still a significant gap between the perception of Romanian citizens towards mediation and the perception of citizens from countries such as France, the US or the UK towards this method of solving conflicts.

In this context, a legislative measure was needed to provide citizens with information about the option to resort to mediation free of charge.

Reporter: Will the courts be less encumbered because of this procedure? Will the number of lawsuits be reduced?

Alina Gorghiu: As for the number of lawsuits on the dockets of the courts, I have to mention that the fact that the information session is mandatory does not directly influence the number of trials.

Mediation is and will remain a voluntary procedure. However, it is obvious that part of the citizens who participate in such mediation procedures will choose it to solve their conflicts and thus, the number of cases that get to court will be implicitly be reduced.

Reporter: The first mediation session will be free of charge. How will the rates for the other meetings be set?

Alina Gorghiu: If both parties show up for the information session concerning the benefits of mediation and they agree to solving the lawsuit through mediation, they will conclude with the mediator a mediation contract to specify the fee.

At the end of the information meeting, the mediator will issue an information certificate to each party, regardless of whether they agree to conclude the mediation agreement or not.

At this moment, there are no minimal or maximal tariffs, therefore the parties can negotiate the fee with the mediator. If the parties do not agree to the fee requested by the mediator, they can turn to another mediator for the mediation session.

Reporter: Do you believe that the number of mediators in Romania will increase because of this procedure?

Alina Gorghiu: The number of mediators will certainly increase, but I also believe that there is a need for adopting the charter of the mediator profession and for a constant oversight of the members of this profession by the Mediation Council, in order to prevent people of inadequate training and dubious reputation from entering the profession.

Reporter: Why is mediation a beneficial process for Romania?

Alina Gorghiu: Mediation represents a way of ensuring social peace, a factor of balance and an indicator of a country\'s level of civilization. In the current context, where social tensions are increasing, partly due to this economic crisis as well, mediation shows up as a solution.

Reporter: What is mediation like in other countries, compared to Romania?

Alina Gorghiu: Mediation has evolved differently across the globe. If we look at regulations across the EU we can see that there are significant differences between these countries.

There are countries which have a tradition in solving conflicts through mediation, with France and Great Britain being adequate examples in that regard, but also countries where even though mediation has only been recently introduced, it has reached an important level in only a short time. Thus, in Italy, between March 2011 and October 2012, there has been a regulation which stipulated the obligation of the parties to go through mediation when it comes to certain types of lawsuits (not to be mistaken with the notion that the preliminary information session is mandatory), and during that time, out of the 130,000 cases which went to mediation, 50% ended with the signing of a mediation agreement.

In spite of this, mediation remains an optional procedure in most EU countries.

I can not present you with statistical data concerning the percentage of lawsuits solved through litigation on a European level, but in the US, according to a study conducted at 126 top companies by the International Institute for Preventing and Solving the Conflict, published on April 20th, 2007 in New York, approximately 98% of the lawsuits which they had were solved before getting to court, which makes it obvious that these companies prefer to solve their conflicts amicably rather than go to court.

Also, in Dallas and Houston, the biggest cities in Texas, many judges have the right to ask for mediation for most of their cases. Most cases are solved through mediation. Even though no comprehensive statistics are known about the results of mediation, the average results show that the success percentage of mediators in Texas is 80%.

Starting from the certainty that commercial mediation is a success in the US (the most developed economic environment in the world, with China coming in fast from behind) and that most of the lawsuits are solved before getting to court, we can look optimistically at the future impact of mediation. What matters is for the domestic legal environment to have the necessary openness and to encourage this method for solving these conflicts amicably.

Reporter: What kind of impact does the postponement of the application of the sanction of inadmissibility have on plaintiffs which do not present the proof that they have participated in the session for information about mediation?

Alina Gorghiu: From my point of view, there is no conflict between the possibility of the court issuing a fine in the cases stipulated in art. 187 letter f) of the new Civil Procedure Code and the sanction of inadmissibility stipulated by the Government Emergency Ordinance 90/2012.

Art. 187 letter f) of the new Civil Procedure Code concerns the possibility of the court to issue a fine in those cases where the parties have accepted the recommendation of the court to attend the meeting about the advantages of mediation and one or both parties subsequently don\'t show up for that meeting. This applies to those lawsuits where the participation in the session about the benefits of mediation is not required, before filing a lawsuit in court.

As a result, the postponement of the coming into effect of the sanction of inadmissibility will determine the existence of an obligation to participate in this information meeting concerning the benefits of mediation, starting with February 15th, without this obligation being accompanied by a sanction.

Reporter: Are there any restrictions concerning the free circulation of the mediation services as there are in the case of legal services?

Alina Gorghiu: The session of information about the benefits of mediation, as well as the mediation itself, can only be done by a mediator.

In order to become a mediator, an individual must meet the following cumulative requirements:

a) they have full exercise capacity (they are 18 years old and they are not under interdiction);

b) they have higher education;

c) they have at least 3 years work experience;

d) they are medically fit for this profession;

e) they enjoy a good a reputation and they have not been convicted through a final ruling for committing a deliberate offense which would affect the prestige of the profession;

f) they have completed the mediator training courses, under the terms of the law, or a post-graduate master level program in the field, accredited according to the law and certified by the mediation council;

g) they have been authorized as a mediator by the Mediation Council, after the payment of the licensing fee;

Citizens of EU member states, of the European Economic Space or of the Swiss Confederation, which possess a document which proves they are qualified to work as mediators, will obtain the status of mediator after these documents will have been acknowledged by the Mediation Council, according to the law no. 200/2004 concerning the recognition of degrees and professional qualifications for professions regulated in Romania, with its subsequent amendments and modifications.

Mediators can conduct their activity all over Romania, regardless of where their headquarters is.

As for the individuals who are citizens of countries outside the European Union, of the European Economic Space or of the Swiss Confederation, the law 192/2006 makes a distinction between the situation where they want to conduct a mediation activity in Romania on a permanent or occasional manner.

If they want to work as mediators only occasionally, this can be done based on the certificate obtained in their country of origin, with the acknowledgment of the Mediation Council.

Foreign citizens who have a certificate which proves their position of mediators and who want to permanently work as mediators in Romania, must obtain the validation of their degree by the Ministry of Education and the authorization of their degree by the Romanian Ministry of Education and the authorization of the Mediation Council.