TUDOR TATU, THE UNION OF BANKING MEDIATORS: "Requests for banking mediation fell 93% last year"

Reporter: What is the form banking mediation currently takes in Romania?

Tudor Tatu: Since its creation, the Union of the Banking Mediators has constantly taken steps to promote mediation among the customers of banking or non-banking institutions (IFN), as well as among the employees of the latter, using various channels accessible for information.

However, the banking cases are just another segment of disputes which are hard to access by mediators, but an approach adapted to the rigors of the financial-banking system can ensure a positive response in a not so far future.

As the disputes between banks and their customers are many, mediation failed for now to be perceived as an efficient alternative to the conflicts of this kind.

However, the members of the Union of Banking Mediators who have succeeded in bringing the parties of a mediation party in, have a success percentage of approximately 25%, which is considered to be very good in relation to the specific of the dispute.

Bank cases have a specific nature, especially due to the fact that the representatives of the banking institutions can only make decisions during mediation within the limits of the mandate they have received. From this point of view, standard mediation has little chance of working, and this is caused by the fact that banks have created internal regulations to the representative which comes to the mediation.

It is noteworthy that, after the years where "ID-card-only loans" were all the rage and lenders would share the glory of loans denominated in Swiss Francs or Japanese yen, the time has come to pay them back. The first stages for the recovery of the claims are handled within the bank, rather than through mediation, as some of the banks intend to resort to debt collectors for this segment. As for late recovery, more than two thirds of the banks prefer to outsource the troubled loans instead of attempting to mediate with the clients. Bankers are thus looking for a way to "clean up" their balance sheet, which is a practice which is used constantly.

As I've said ever since the creation of the Union of Banking Mediators, there will come a time when legislative changes will clip the banks' wings, reducing their domination over their customers. The rules of the game have changed starting with January 9th, 2013, after the coming into effect of the new Civil Procedure Code. Customers and banks will be required to go to a banking mediator first. New lawsuits will no longer be admitted unless the plaintiffs prove first that they have participated in a mediation session.

The litigants who are customers of banks or lenders, will be forced to participate in a meeting for information about mediation, before going to court, regardless of whether they are individuals or companies. Failing to follow this procedure will be punished according to an emergency ordinance passed by the Government in its meeting of December 12th, 2012, with their lawsuit being rejected.

Reporter: Are you considering the creation of an institution for mediators?

Tudor Tatu: I can say that we are, leaving aside the law which governs mediation at the present time, by which any mediator can mediate anything and anywhere and going on the principle that "anything that the law does not prohibit or stipulate" is allowed.

The first step we took by creating the Union of Bank Mediators starting from the premise that the area of mediation of financial-banking litigations is one that, aside from the know-how and abilities obtained following the pursuit of the mediation courses, the people who pursue their activity in this area need to have legal and banking procedure know-how, to know the scheme of the banking system, to be permanently informed about banking products, the procedure for their selling and recouping and the legislation of the banking sector.

In my opinion, any activity is productive when it is conducted in an institutionalized manner.

There have been voices among mediators and at the level of the Mediation Council which are saying that in the case of banking litigation one can resort to any authorized mediator to solve the dispute. This is wrong! In my opinion, mediation in the financial-banking sector must be done in an institutionalized manner and by specialized mediators.

Reporter: How is the cooperation between the NBR and the Romanian Banking Association going when it comes to the banking mediation?

Tudor Tatu: I can say that we have a good cooperation. Both the Romanian Banking Association and the NBR are making efforts to introduce mediation in the banking system, but unfortunately it has been found that neither banks nor their customers are in the habit of using the procedure of mediation.

The Romanian Banking Association, together with the Union of Banking Mediators, is one of the promoters of banking mediation.

With the support of the Romanian Banking Association and of the Romanian Banking Institute (IBR) we have trained classes of students in banking mediation, both from the ranks of members of the Union of Banking Mediators, or from among other mediators who wanted to remain independent.

The Romanian Banking Association even sent a letter to the banking system saying that it would be a good thing for it to cooperate with the specialized mediators to reduce the number of cases that reach the courts, because many of them have no justification for doing so.

As for the cooperation with the NBR it is important to mention that, in the month of September 2012, the Romanian Government issued an ordinance which amended several laws concerning payment services, including some of the articles of the Government Emergency Ordinance 113/2009, the Law 127/2011 and Government Decision 1259/2010. The goal of the ordinance was to set up the procedure of mediation, as regulated by the Law 192/2006 concerning mediation and the organization of the mediator profession, with the subsequent amendments and modifications, as a procedure for solving the litigations in the financial payments services outside the court, in consensus with the mechanisms implemented on a national level in other sectors of the financial services and the elimination of the involvement of the National Bank of Romania in this matter.

Therefore, the law has amended art. 179 of the Emergency Government Ordinance 113/2009 concerning payment services, by replacing the attributions of the National Bank of Romania to solve the litigations between the users and the providers of payment services using the procedure of mediation, outside the courts, with the appropriate adaptation of other legal dispositions which refer to it.

As a provision of a temporary nature, the Ordinance comprises the fact that the requests for the solving of the National Bank of Romania, by the time the emergency ordinance came into effect, will be solved according to the procedure in effect until that date, and afterwards, by the mediators specializing in solving bank litigations.

So far, no such requests have been sent, but as such requests get sent to the NBR, due to lack of information, the NBR will distribute them to the Union of Banking mediators to be competently solved, through mediation.

The ordinance has been published in the Official Gazette, and since the date of its publication it has relieved the NBR from the task of dealing with the complaints.

Reporter: What are the aspects which you would enumerate to improve the institution of banking mediation?

Tudor Tatu: As a mediator, who knows quite well the financial-banking system, I would come up with mediation formulas which would answer to this type of cases, with new methods for solving them. One of the options would be the method MED-CON (Mediation - Counseling) and which can be successfully used in these cases.

This method involves the starting of the mediation procedure, and if the mediation fails it leads to the second step, which is conciliation.

A second method which I would introduce in the law, would be the MED- ARB method (Mediation-Arbitrage). If the mediation fails, then the arbitrage goes ahead, and it does not go to court, this being the last thing to resort to if both options failed.

Another aspect would be the introduction in the law of the evaluation mediation, which allows the mediator to assess the lawsuit without the presence of the parties being needed, using the data in the documents and issuing a recommendation which the parties may or may not follow, like they agree.

Aside from the presented technical aspects, there is also the involvement of the decision-making factors in the Mediation Council in promoting mediation in the financial-banking system and elsewhere, which so far has left a lot to be desired, as the members of the Board of Mediation focusing on promoting their own training schools and on the inclusion in the mediation law of the conflict of interest which would eliminate the access to these positions of mediators which are trainers or manage formation schools.

Reporter: How did applications for the school of banking mediation evolve in 2012?

Tudor Tatu: Whereas in 2011, the members of the Union of Banking Mediators have solved over 500 applications, most of them receiving a positive answer, at the level of 2012 a decrease was seen, to just 38 requests on a national level, of which more than half received a negative response, either due to the refusal of the representatives of the bank to show up for mediation, or tardiness, or due to non-confirmation.

Reporter: What expectations do you have in 2013 for banking mediation?

Tudor Tatu: I hope that 2013 will bring added value to the institution of mediation, and the litigants, whether they are customers, or lenders, will understand that it is better for them to use the procedure of mediation in the arguments that arise, rather than resorting to the Consumer Protection Agency (ANPC) or to the courts. But most of all, I wish for banks to comply with the legal provisions, to eliminate by themselves the abusive clauses which still exist in some lending contracts, to forget about making up all kinds of commissions and to be more forgiving with the troubled customers who lost their jobs due to restructuring, bankruptcies, mergers, etc.

Reporter: Which complaints do customers make the most often?

Tudor Tatu: The one conflict that was the most prevalent has been and I think will continue to be that of the introduction in the loan agreements of abusive clauses and of hidden commissions.

The latest complaints concerned the charging of a commission upon cashing in, which is completely illegal.

Reporter: What are the benefits of the mediation process?

Tudor Tatu: A good synonym for financial-banking mediation would be a mechanism for avoiding and reducing financial collapse, and it consists of an agreement between the debtor and the creditors on the manner in which the distressed debtor will pay off its debts.

The debtor is supposed to announce its creditors early about the difficulties it is facing and to grant them the chance to recover, thus proposing a concrete and coherent plan for reorganization for that purpose.

The creditors need to be persuaded to accept the proposed plan, as well as the fact that they could get more money in the event of an agreement between them, occurring at the end of the mediation procedure, than in the event of insolvency, bankruptcy or foreclosure.

Only if the mediation procedure fails and a compromise isn't reached through it, does the process move into insolvency, bankruptcy or foreclosure.

In order to begin the mediation procedure, the creditor or the debtor can ask a mediator to begin the mediation procedure, a member of the Union of Banking Mediators who in turn will ask for the agreement of the other party.

Once the party which received the request has given its approval through the signing of the agreement, the mediator will begin the mediation procedure. If the party whose approval was asked does not agree, the mediation is considered as not having been accepted.

When both parties want or plan to follow the procedure of mediation, the creditor and the debtor choose one or more mediators through mutual agreement, members of the Union of Banking Mediators ands based on their written agreement, the mediation procedure gets started.

The fee of the mediator will be set through negotiation with the debtor and the creditor, taking into account the complexity of the lawsuit, the time allocated, the number of sessions, the amount of the lawsuit, etc. and will be borne by the parties equally or according to their agreement.

Unless the law stipulates differently, the parties - banks' customers or the banks - can resort to mediation before or after the beginning of the insolvency procedure or the foreclosure stage, before the competent courts, thus agreeing to solve in this manner any conflicts arising from the loan contracts.

Whereas throughout mediation, a situation which would affect its purpose, the neutrality or the impartiality of the mediator were to arise, then the mediator is expected to announce it to the representatives of the creditor and of the debtor, which would decide on whether to maintain or denounce the mediation contract.

Once the creditor and the debtor have reached an agreement, a written agreement is drafted, which will comprise all the clauses they have agreed to, based on which, at the headquarters of the creditor, an appendix to the initial loan agreement would be drafted, as applicable, which would need to be honored by the debtor and the creditor alike, being no longer subject to authentication by the notary public or to verification by the court, as the case may be.

Reporter: What does banking mediation look like in the countries of the European Union? How often is mediation resorted to in the European countries, and what are the results?

Tudor Tatu: The Union of Banking Mediators has the expertise of banking mediation at the level of the European Union, because in the beginning of January we have begun the steps for the union to become a member of the FIN - NET (Financial Dispute Resolution Network) of the European Commission, together with the 56 member entities originating 24 EU member states and the European economic area, and as part of the meeting of March of 2011, which was held in Brussels, the Union has officially submitted its candidacy by becoming a candidate member.

Out of the relationship with the other partners and their exposures as part of the works of the plenums we have had the opportunity to find out that at the level of the other European countries, banking mediation operates through the banking Ombudsmen created through decisions of the governments of the EU member states, or by the associations of the banks, but in compliance with their independence or impartiality.

As for the costs of mediation in the European countries, they are supported by either the state or by the banks through the creation of a common fund handled by the banks' association.

On a European level, Greece holds the number one spot in terms of the number of disputes solved through litigation, followed by Italy, England, Spain and Austria, but the systems are so well implemented that the outcome of the mediation is positive most of the time.

Malta also has a very well developed banking mediation system, which is achieved through the Malta Financial Services Authority (MFSA) and which has solved a considerable number of applications.

Reporter: Thank you!