Draft2.

18 September

RESTORATIVE

JUSTICE

AND

VICTIM

OFFENDER

MEDIATION IN ROMANIA1
Doina Balahur

Introduction
The analysis of regulations directing and guiding restorative justice
acquires meaning only if it is interpreted within the wider context of the
transformations of the modern law and mainly of the modern world itself.
It is not the aim of this chapter to make such an investigation, but the need
for such interpretation must at least be recognised. This is because it
comprises the reference point against which it is possible to appreciate not
only the rapid growth of the new alternative dispute resolution practices,
and especially of restorative justice, but also the why of the of the
substantial ground it has gained within the last decade, even in the former
communist countries. During this time restorative justice has attracted the
attention of the leading interdisciplinary scientific research sociological,
juridical and criminological at both the European and the international
level. It owes its central status to the potential that its values, principles
and programmes have as the basis for an alternative paradigm of justice, of
conflict resolution and of safer communities. In his recent book, Ivo
Aertsen and his colleagues concluded that these virtues were so well
recognised that it is possible to speak today about the institutionalizing of
Restorative justice (Aertsen et al, 2006).

Nobody doubts today that modern law has lost its empire, a
consequencence of a long list of discontent about laws capacity to deliver
1

In Aertsen, Ivo and David Miers (Eds) (forthcoming) Restorative Justice : Evaluative Findings in
Europe, Bremen, Polizei und Wissenschaft.

on even its most basic claims for legitimacy. Among these is the striking
and repated failure of the modern system of formal justice to keep its
promise to be an objective and fair means of conflict resolution (Balahur
and Balahur (2005). This observation is supported by a large body of
research, undertaken from the perspective of a wide range of social and
legal disciplines, which has signaled the emergence of less formalized
models of social and political crime control and the pluralization of the
justice providers. The explanations that have accompanied these changes
vary appreciably among different disciplines and scholars. Some consider
that restorative justices recent visibility is closely associated with the end
of one of the foundational myths of the modern society: the myth that the
sovereign state is capable of delivering law and order and controlling
crime within its territorial boundaries (Garland, 2001: 109). Echoing
Garlands ideas, other authors consider that we are now observing a shift
from adjudication to administration (Mayerhofer,

2000: 111), and, I

would add, of justice in community and by community. Other analysts

appreciate that the network society (Castells: 2000) brought with it a
legal pluralism characterized by private regimes and neo-spontaneous
law (Teubner 2004: 71-86) and by a more negotiated procedure of conflict
resolution.

The changes that are the subject of a number of different studies and
research projects are occurring right before our eyes. An empirical
comparative analysis of the state of art in different legal systems and
legislative provision, from Asia to Europe and from America to Australia,
would undoubtedly observe, at a first glance, that almost everywhere
reform is the all encompassing strategy under which the major changes in
the justice systems are undertaken. This strategy aims at a better quality of
justice and its is frequently closely connected to the implementation of

non-adversial practices of conflict resolution and the institutionalization

of alternative dispute resolution. For example, the Japanese Ministry of
Justice, 2 through its specialized agency, the Justice System Reform
Council (JSRC), suggested in 2004 that the following three issues were the
priority of the reform of the justice system: construction of a justice system
that meets the needs of the people; reform of the judicial community to
support the justice system and the establishment of a popular base
(participation of the general public in the justice system) should be the
main issues of reform. () During the 161st Diet Session (2004
Extraordinary Diet Session), a law related to ADR (alternative dispute
resolution) and other laws were enacted. In the United States of America
the work of Gordon Bazemore and Mara Schiff likewise illustrates the
pervasive role of restorative justice, in particular in the results of the five
year research project on juvenile justice reform (2005).

We see these changes also at work within Europe. Within the processes
opened by the Treaty of Amsterdam, aiming to build the European area of
Freedom, Justice and Security, both Member and candidate States have
been obliged to change and to adapt their national legislation in order to
improve acccess to justice, integrate provisions regarding the protection of
the victims of crimes, 3 and also promote alternative dispute resolution.
According to the Directive of the European Parliament and of the Council
in 2004,4 access to justice should include promoting access to adequate
dispute resolution processes for individuals and business, and not just
2

The Japanese Minister of Justice (2004): Ensuring the results of justice system
reform take root http://www.moj.go.jp/ENGLISH/issues/issues01.html.
Council Directive: 2004/80/ECof 29 April 2004, relating to compensation to
crime victims.
The European Commission (2004) : Directive of the European Parliament and
of the Council on certain aspects of mediation in civil and commercial matters,
COM (2004)718.

access to the judicial system. . The concept of access to justice, especially

in the view of better protection of the victims of crimes, has also been
developed through the Belgian initiative to set up a European Network of
contact points for restorative justice. 5 The proposal emphasizes that
restorative justice implies that the needs of the victims are prioritized.
Both material and immaterial reparation should be aimed at restoring the
balance between the victim and society.

As noted, one of the effects of the deregularization of the modern world

(Garland: 2001) can be observed at the level of the deep changes (reforms)
that the justice and legal systems are experiencing all over the world. For
the former communist countries in Central and Eastern Europe, one might
talk about a wider project of reform. This aims to establish, within the
framework of a multifaceted process, both the modern content of justice
and of a legal system (especially regarding the observance and protection
of human rights) and also the post-modern modalities of justice that are
rooted in civil society, cultural tradition and sometimes in the soft-law
procedures of conflict resolution practices. Consequently, reform in the
former communist countries is a double reform. This aims, first, at rebuilding entire political and economic institutions (the modern reform).
Secondly it seks to restore trust among people, mainly by promoting less
formalised forms of social action and control; this is a part of a merely
post-modern project. Taking place in a time of deep social transformation,
these reforms have thus been simultaneously confronted with a set of
double range transformations: to democratise their life and also to (post)

Initiative of the Kingdom of Belgium with a view to adopting a Council

Decision setting up a European Network of national contact points for
restorative justice [Official Journal C242 of 8.10.2002].

modernise it in line with the major social movements and values in Europe
and the global society.

Based on the conclusions I have arrived at in my own reserch on the

process of reform, especially of the justice system (Balahur, Littlechild and
Smith, forthcoming), and also on results of other enquires carried out in
former communist countries, it becomes possible to appreciate that it is
only the synergy of the processes involved in the double reform that
could bring about the radical changes that other countries passed through
over several hundreds of years. That is why any inquiry into alternative
conflict resolution in the former communist countries, regardless of the
label used, mediation, conciliation, arbitration, restorative practices,
ombudsman, and so on, is always part of a wider analysis that aims to
identify the main directions of the changes to both the institutional and
legal framework of these societies and to the everyday life of thoe people
and communities.

Legal Description

1.1

Legal base

1.1.1 Primary Legislation

(a)

Some theoretical considerations

As an important facet of social transformation, the reform, of what I would

call the ways of doing justice in Romania, has been a lengthy process,
hindered by severe delays by comparison with other Eastern European
countries. As I have observed elsewhere, all of the major transformations
within the Romanian justice system have been the product of European
and international pressure (Balahur, 2004). Like these reactive strategies,
the existing regulations on alternative dispute resolution have been adopted
either within the framework of European integration or by virtue of the

pressure of the Council of Europe and other international organizations. In

2002, those monitoring the EU Accession Process in respect of Romanias
judicial capacity recommended to the Romanian Government and
Legislature the need to reduce the backlog of cases through improved case
management, including (...) introduction of alternative dispute resolution
(Open Society Institute, 2002:.185). It was four years before an obligation
to use mediation became law.

Like other social-legal institutions, the development and implementation of

restorative justice practices in Romania could be analyzed from two linked
perspectives. One is a bottom-up perspective, that sees these practice
promoted by civil society and supported by academic groups; the other is a
top-down, in which they are framed by different policies and legal
regulation. It has often been the case that within a process of reform, the
Romanian authorities have agreed to changes in the administration of
justice that have developed, at least initially, without their influence.6 From
this point of view, Romania is not an exception. The introduction and
diffusion of alternative justice strategies in Romania followed the common
model identified in the countries of the European Union. Mestitz and
Ghetti observed that in judicial systems any reform is introduced topdown through new norms, but VOM was almost always introduced by
spontaneous bottom-up processes promoted by social and professional
groups and/or movements (Mestitz and Ghetti, 2005: 17).

So far as penal law in Romania is concerned, both directions have been

closely connected mainly to the reform of the juvenile justice system.
6

It is the case of the alternative measures and strategies (probation) promoted

initially by a project implemented by the Social Alternative foundation in Iasi in
partnership with the National Association of Magistrates (branch Iasi) and also
the case of the Juvenile Courts promoted through a project by the same partners.

Meanwhile, as the comparative analysis and research developed by the

European Forum for Restorative justice observes (Aertsen et al., 2004), the
need to improve and make visible the position of the victim within the
criminal justice system has also contributed to the promotion of alternative
dispute resolution practices under the form of restorative justice and
victim-offender mediation programmes.

At this point, I would like to make a brief distinction between restorative

justice and victim-offender mediation. Sometimes, the two concepts are
considered (or at least used) as if they were synonymous. I do not intend to
enter this debate here and now. I would like only to clarify the meaning of
the concepts that I will be using in this analysis. In a minimalist
conception, restorative justice may be understood a new way of looking at
criminal justice that focuses on repairing the harm done to people and
relationships rather than on punishing offenders (although restorative
justice does not preclude incarceration of offenders or other sanctions).
Originating in the 1970s as mediation between victims and offenders, in
the 1990s restorative justice broadened to include communities of care as
well, with victims' and offenders' families and friends participating in
collaborative processes called conferences and circles (McCold and
Wachtel, 2003). A maximalist conception considers restorative practices
as a way of (re)building the networks of the organized reciprocity and
civic solidarity (Putnam 1995: 20), and also community and democracy
or at least the competence to be democratic (Braithwaite 2002: 132). It
could also be seen, from a maximalist point of view, as a strategy for
developing social capital (...) and civic participation through participatory
learning and decision making (Wachtel and McCold 2000: 118).

Victim offender mediation is more specific. As an alternative to the

adversarial system of court-based conflict resolution it aims to repair
harms by means of interpersonal strategies supported and falcilited by a
third person (the mediator). Despite the fact that it could have (indirectly)
restorative effects, it represents merely a transfer of the transaction in the
civil law to the criminal conflict resolution, and to other types of conflicts
as well. VOM resonates with the minimalist approach to restorative justice,
an approximation to a court based resolution. However, both restorative
justice practice and victimoffender mediation could be seen on the same
continuum, having at one end the court system of dispute resolution and at
the other informal community based strategies for dealing with conflicts.
Between these two lies the wide variety of forms of alternative dispute
resolution that display, in different proportions, characteristics drawn from
both extremes.

(b)

The legal framework

I will briefly review the principal legal framework that has been developed
in Romania to regulate the alternative forms of dispute resolution, either
under as restorative justice practices or as mediation. In short, there are
ADR provisions in civil and commercial matters (conciliation and
mediation), domestic violence (restorative justice), work relationships
(conciliation) and in criminal matters (victim-offender mediation).

Chronologically, the first step in the regulation of ADR in Romanian law

was made in 2000 through Government Ordinance nr.138 for the
completion of the Civil Procedural Code.

This regulates in a newly

introduced Chapter XIV, Dispositions regarding the resolution of the

commercial conflicts, a compulsory procedure for conciliation. According
to art.720(1), in commercial matters

(...) before

making a legal

complaint, the parties in conflict will try to resolve their litigation through
conciliation. Based on this disposition, the Romanian Chamber of
Commerce established an independent body, the Centre for the Mediation
of Commercial Disputes (CMCD) which, in May 2003 published Rules of
Mediation Procedure.

Since 2000 domestic violence against children and women has become a
priority closely associated with the reform of the child welfare system (see
Balahur 2001, 2007). In response to an important change of direction in
the promotion and protection of childrens rights, the law has ben
constantly adjusted in order to prevent and to curb abuse, neglect, and
violence against children and women. In particular, a new law regarding
domestic violence adopted in 2003 provides alternative ways of dealing
with conflicts among family members, emphasizing the potential role that
restorative justice could have for rebuilding their relationships. 7 For the
moment, this is the only legal regulation on which restorative programmes
and practice could be based.

Law nr.217/2003 regarding Domestic Violence provides, in Chapter V

(art.19-22), for mediation in cases of domestic violence.8 Article 19 states
that at the request of the parties, cases of domestic violence can be
referred to mediation. For this purpose the competent persons to deal with
such cases will counsel the parties. Conciliation in these cases may be
undertaken, according to art.20, either by a meeting of the family (the
Family Council) or by an authorised mediator. Article nr.21 in Law
217/2003 defines the Family Council as an asociation without legal

7
8

Law nr,217/2003 Regarding the Prevention of Domestic Violence.

Monitorul Oficial Partea I nr. 367 din 29 mai 2003 (Oficial Monitor of
Romania, Part I in 29 of May, 2003).

10

personality and patrimonial aim, formed by the family members who have
full legal capacity according to law.

In fact law 217 combines two

different ADR practices: traditional mediation and family group

conferencing, though without calling it such.

Nevertheless, the

conciliation provided for by this procedure, which involves the family

members in conflict and a family council can readily be recognised as a
variation on one of restorative justices core practices.

The initiative to run mediation through the family council belongs to one
of the famly members or to the familial social worker. In either case, Law
nr.217, art.20 (2) expressly states that the completed mediation procedure
does not affect the criminal trial. ADR research and evaluation typically
characterises this as a double track approach as it meets restorative
values and principles but leaves open recourse to the formal trial. The law
on domestic violence does not however regulate mediation procedure nor
clearly specify who may be a mediator or which organizational body is
entitled to authorise the mediators.

It has often been remarked that a range of criminal justice initiatives have
become associated with restorative values and principles because of the
processes they use to respond to and repair the harm caused by crime. That
is so, for example, in the case of programs designed to provide services to
crime and trafficking victims, as they recover from the crime and proceed
through the criminal justice process.9 In Romania, two statutory provisions
have such restorative justice connections: law nr. 678/2001 (revised)
regarding the Prevention of the Trafficking of Human Beings,10 and law nr.

10

International Institute of Restorative justice,

http://www.restorativejustice.org/intro/
Monitorul Oficial, Partea I, nr.783 din 11 decembrie 2001.

11

211/2004 regarding the Protection of the Victims of Crimes.

11

Both

contemplate a duty to establish programs for free psychological

counselling and recovery from the crime or the trafficking, and the
provision of financial support and free legal assistance to engage the
criminal justice process. Although it does so indirectly, Article 13 in law
nr.211/2004 opens the possibility that crime and trafficking victims will
benefit from mediation services.12

(c)

Legislative authority

In May 2006 the Romanian Parliament enacted the Law regarding the
Mediation and the Regulation of the Profession of Mediator.

It was

adopted within the framework of the negotiations for accession to the EU

as part of the obligation to implement the acquis communautaire. This
new law is closely bound to the values and principles containd in the
various recommendations on restorative justice declared by the EU,13 the
Council of Europe,14 and the UNO.15 The Romanian legislator chose an all
encompassing legal framework within which the following matters are
regulated: the profession of mediator, the rights and responsibilities of the
mediator, mediation procedure, and the types of conflicts (civil,
commercial, family and criminal) that may be referred to mediation.

11

Monitorul Oficial , Partea I, nr.505 din 4 iunie, 2004.

Art.13 mentions that the victims of crimes and trafficking benefit also by the
protection measures regulated by the Law 217/2003 regarding the Prevention of
Domestic Violence.
13
Council of European Union framework decision on the Standing of Victim in
Criminal Proceedings adopted on 15th of March, 2001;Council of European
Union Directive relating to Compensation to Crime Victims, adopted on 29th
April 2004; A European Code of Conduct for Mediators launched at the
Conference in Brussels , 2 July, 2004.
14
Council of Europe Recommendation Nr.R(99)19 on Mediation in Penal
Matters.
12

12

The two main purposes of the law of Mediation, as the Memorandum of

the Romanian Minister of Justice stated,16 is to promote ADR strategies in
order to better satisfy the interests of the parties and to reduce the numbers
of cases that with which the courts have to deal. The Memorandum also
affirms the obligation to harmonize Romanain law with the relevant ADR
European standards and regulations..

(d)

Mediation: definition and general conditions

The Romanian law of mediation does not have an explicit philosophy,

aiming merely to legitimize and empower existing practice and the
mediators profession. Of the seven chapters of the law, five are focused
on the regulation of the profession, mediators rights and obligations, and
the legal and educational qualifications required to become a mediator. An
attempt to integrate it within current ADR conceptions shows that it falls
within a narrow minimalist approach far removed from the values and
aims of restorative justice, but close to the values of traditional court
procedure. The law deliberately avoids reference to any notions of healing
or of the the reparation of the harm. The section in Article 66 that deals
with mediation in family matters states that during the mediation
procedure, the mediator will determine whether there is between the
parties an abusive or violent relationship and if so, whether the effects of
such a relationship could influence the mediation, and will decide, if under
such circumstances, mediation is appropriate or not. My question is, if
the parties do not have a such a relationship, which is by defintion almost
inevitable in these cases, what is left that is amenable to mediation?

15

16

UNO, Economic and Social Council, Basic Principles on the Use of

Restorative justice Programmes in Criminal Matters, July, 2002.
Romanian Ministry of Justice, http://www.just.ro.

13

Chapter 1 of Article 1 defines mediation as an optional way of informal

conflict resolution with the support of a third person as mediator, within
the conditions of neutrality, impartiality and confidentiality (....).
Mediation represents an activity in which there is a public interest. In the
exercise of their competencies, mediators do not have the power to decide
the content of the agreement that the parties will reach, but they can
counsel them to check its legality according to the procedures set up by
Article 59.17 So defined, mediation is an alternative to the court system for
civil, commercial, family and criminal proceedings. According Article 2,
consumer protection matters, such as personal injury or property damage
caused by faulty products or services, or otherwise by breach of the
contractual terms, can also be referred to mediation.

As a general proposition, the law provides for a wide range of disputes to

be referred to mediation. Both legal and natural persons have the right
(art.4 (3)) to resolve their disputes through mediation, both outside and
within the compulsory procedures of the informal resolution procedure that
the law envisages. They may also decide to refer the case to mediation
even where the trial has begun. Such provisions could have an substantial
impact on the courts case loads, so contributing not only to the
implementation of ADR but also to the increase in the quality of the justice
that is provided by the formal justice system. However, personal rights
and any other rights from which the parties are not legally entitled to . give
up to (the right to legal personality, to identity, image etc) cannot
constitute the object of mediation.

17

According to Article 59, the agreement at which the parties arrive can be
submitted for checking either to the public notary in order to authenticate it or to
the court for approval.

14

A core value of mediation is the equal treatment of and non-discrimination

between the parties during the entire process. Article 6 provides thst the
obligation to acknowledge the possibility that the parties may refer their
dispute to mediation rests with the judicial and arbitration bodies. They are
in addition required to advise the parties to consider the possibility.

(d)

Legal conditions, education and recruitment of mediators.

Unlike legislation in other European jurisdictions (Miers and Willemsens

2004; Mestitz and Ghetti 2005), the Romanian law on mediation provides
that several conditions must all be met by those who wish to be authorized
as mediators. These are (Article 7): (a) full legal capacity; (b) a degree;
(c) at least 5 years professional experience; (d) no medical condition that
would compromise the applicants ability to conduct mediation; (e) no
criminal record and a a good reputation; (f) completion of the training
courses for mediators and (g) is authorized as mediator according to thse
provisions.

In their overview and comparison of VOM in 15 European countries,

Mestitz and Ghetti noticed a major trend to recruit qualified experienced
mediators and to provide for more or less short training periods. A second
minor orientation was the recruitment of both inexperienced mediators and
experienced professionals who are often employed as social workers in
public services (Mestitz and Ghetti 2005: 15). The Romanian law lies
between these two general European trends. As a general condition
mediators need to have a higher education degree. The professionalization
is acquired through the training courses delivered by specialized providers
of education, themselves licensed according to law (art.9). Authorized
mediators are registered by the Council of Mediation on the list of the

15

official mediators. The list is published in the Official Monitor of

Romania, Part I.

(e)

Mediators activities, rights and responsibilities

Unlike other European countries the Romanian law on mediation is

focused mainly on the regulation of the status of the profession of
mediator. It regulates in a special chapter mediators rights and
responsibilities. Among their most important rights are the right to inform
the public about the mediators activity, with due respect to the principle of
confidentiality, and the right to seek an honorarium, negotiated and
decided together with the parties, and also to have their expenses
reimbursed (art.26). The law also provides that the parties are obliged to
pay the mediators honorarium and expenses, even where the mediation
fails to reach an agreement or when the parties abandon the process before
it is completed. In this last case the parties are obliged to pay a pro rata
sum, taking into consideration, if need be, their own financial position
(art.46 (f)).

Provisions of this kind raise, in my opinion, important questions regarding

access to justice. If mediation is paid for by the parties, it will be, from the
outset, a service provided only to those who can afford it, and probably a
preferred strategy to avoid the court and its sanctions. In commercial or
civil conflicts, why should the parties prefer mediation where they have at
their disposal the conclilation and arbitration procedures and also an
informal procedure even during the trial in court (transaction). Why would
a family that is experiencing difficulties in its members relationships with
one another pay for a mediator instead of a therapist, whose own
specialism might generate a better (more cost effective) outcome. And
Law 217/2003, which provides for restorative justice delivered by the

16

family council in cses of domestic violence, could equally prove more

efficient and definitely less costly. Similarly in criminal matters, it is
difficult to find any advantage in paid mediation to the court system, save
the suspects desire to escape the criminal sanction.

This arrangement, whereby the cost of mediation is paid for by the parties,
especially in criminal and family matters, appears to be unique in Europe.
The European Forum for Restorative Justices publication, Mapping
Restorative Justice: Developments in 25 European Countries (Miers and
Willemsens 2004) showed that in the countries analyzed, mediation in
criminal cases is financed mainly from public sources, by the Ministry of
Justice, Public Prosecutor, and local government (for example, Spain,
Belgium, Italy, Luxembourg, Finland, the Netherlands). In Poland the state
pays a fix amount per case.

Among their professional obligations, mediators are required to ensure that

the parties understand the procedure in which they will be involved,
togther with the limits and the effects of the mediation (art.29). They are
required to be diligent and to support the parties in arriving at a mutually
advantageous agreement. Mediators have to ensure both their impartiality
and a state of permanent equilibrium between the parties (art.30). The
law also imposes a duty of confidentiality regarding the information and
the documents that the mediator has received during the process. At the
same time, mediators cannot be called as witnesses regarding the facts they
have learned during the mediation (art, 32 and 37 (1)). As an exception to
this rule, in criminal matters, the mediator can be a witness, but only if the
parties agreed to this in writing at the outset, and, if need be, of the other
people involved in mediation procedure (art.37). However, mediators are
liable to be witnesses in respect of any facts of which they became aware

17

before becoming a mediator in the specific case.(art.37 (2)). All in all, the
obligation of confidentiality is weak as long as the sanction for its
infringement is disciplinary liability.

For Romania especially, as a

corporate society, and charactised by a generalized corruption, the

weakness of the duty of confidentiality could raise serious problems.

Mediators are liable for their conduct during the mediation. Article 38
specifies a number of matters that may give rise to disciplinary liability: (a)
breach of the duty confidentiality; (b) refusal to answer to the judicial
authorities in cases regulated by law; (c) refusal to return the documents
provided by the parties; (d) representation of one of the parties within a
judicial or arbitration procedure dealing with the same matter as the case
under mediation; (e) other conduct that could infringe professional ethics.
The disciplinary sanctions vary according to gravity of the infringement,
from written warnings, fines from 50 500 lei (Euro 14-139), to the
temporary (one to six months) or permanent withdrawal of the mediators
authority (art.39).

(e)

The mediation procedure

The mediation procedure has, according to law, four stages. The first, the
preliminary procedure, takes place before the mediation contract is
concluded. It aims to bring the parties within the mediation procedure, to
ask for a mediators services. When only one party asks for mediation
services, the mediator will, at that partys request, invite the other to
participate. The letter of invitation will establish a term of maximum 15
days within which to accept. If the other party explicitly refuses the
invitation or does not sign the contract after having been invited twice, the
offer of mediation is considered unaccepted and the process is closed
(art.43 (1), (2) (3)). While it insists on the voluntarily nature of mediation,

18

the law nevertheless provides that mediators may make any other legal
approach that they consider useful for inviting the parties to the mediation
process, while properly oberving the other provisions governing its use
(art.43 (4)).

The mediation process cannot be carried out before the contract has been
signed by the parties. The conclusion of the mediation contract, which
must be in written form, constitutes the second stage. The contract must
specify a number of matters, subject to absolute nullification if it does not.
These are the identity of the parties; the subject matter of the dispute; the
mediators obligation to explain to them the principles, the effects and the
rules of mediation; the parties declaration that they freely accept the
mediation; their agreement to respect the rules of mediation; their
obligation to pay the honorarium and the expenses occasioned by the
mediation procedure; and their agreement regarding the language in which
the mediation will be carried out (art.45).

The contract has to be

concluded according to law.

Once the contract is concluded, the third phase, the mediation activity, can
begin. By Article 50(1) the mediation process is based on the partiescooperation and on the special communication and negotiation techniques
and methods used by the mediator. The parties have the right to be assisted
by a lawyer (or by others), and cannot have a solution imposed on them by
the mediator. Developed as an analogue to court procedure, the process
resembles an informal trial. Article 55, for example, provides that where
the matter gives rise to difficult or controversial legal issues, the mediator,
having obtained the parties agreement, may ask for the point of view of an
expert in the field. The mediation process is so deeply embedded in the

19

model of court procedure that it is almost impossible to adopt a different

perspective on its place in Romanian law.

The fourth and final stage is the closing procedure. This requires one of the
following conditions (art.56): the concluding of an agreement between the
parties as a result of the mediation, or its failure as a result of one of the
parties withdrawal. Whatever the reason is, the mediator must write a
note that is signed by the parties or their representatives, and by him. The
agreement that the parties have arrived at has must also be written. It must
register all the matters agreed between them, and be signed by them. It can
be submitted either to the public notary for authentication or to the court
for approval (art. 59).

1.2

Scope

Beyond its general provisions that are common to all types of mediation,
Chapter VI (art.64-70) makes special provision for the mediation of the
conflcts in two areas: family, and criminal proceedings.

1.2.1 Special provisions regarding mediation in family disputes

As noted, ADR in family disputes already exists, holding out the
possibility of restorative justice, reconciliation and the rebuilding of the
couples relationship.

In practice, mediation in family disputes, as it is now constructed, could

obviate divorce proceedings in court. The potential breakdown of the
marriage could be addressed through mediation, as could the exercise of
the husbands and wifes parental rights, decisions concerning the care of
any children and the contribution to their maintenance, and any other
matters between the husband and wife regarding the rights they can

20

dispose according to law, for example concerning the matrimonial home

(art.64). The parties submit the divorce agreement to the court which has
jurisdiction formally to order the divorce.

Where there are children of the marriage, the mediation agreement should
not contravene to their best interests; for this purpose Article 66 requires
the mediator to encourage the partiess to focus mainly on their childrens
needs. But this provides no formal guarantee that their best interests will
be observed, either during the mediation procedure or after it. The formal
procedure described in the Family Code envisages a simple procedure
appropriate for couples married for more than one year and without
children (article 38). For couples who have children, the procedure is
different, and a first step that the the court takes (through a special,
emergency procedure) is to decide to whom the child(ren) should be
placed during the divorce.

There have been many voices that have called for divorce to be returned to
the civil law, as it is a contract. This is partly right, as marriage is an
agreement with obligations on each party, but it ignores the UN
Convention on Childrens Rights and more recently the jurisprudence of
the European Court of Human Rights, that childrens rights are superior to
adultsrights, and must be observed and protected by law. Consequently, if
the married couple have children, divorce procedure, whether through
mediation or in court, should contain sufficiently strong safeguards that
provide real protection for the rights of the child. This is not the case with
the provisions in art.65 in Romanian law of mediation.

1.2.2 Mediation in criminal matters

21

Article 68(2) makes it clear that the parties (victim and offender) cannot be
forced into a mediated agreement. The law also contemplates that legal
safeguards should apply to mediation (art.72(2)): the parties have a right to
legal assistance and also, if need be, to benefit from translation services
(art.68(1)).

The provisions regarding mediation are equally applicable to crimes for

which the reconciliation of the parties withdraws criminal liability (art.67).
This follows from Article 279 of the Romanian Code of Penal Procedure
(C.p.p), which provides that for certain types of crimes18 , the charge and
prosecution depend on victims preliminary complaint. In these cases, the
reconcilliation of the victim and offender before the matter omes to court
has a diversionary effect. All these types of crimes can be referred to
mediation.

Regarding its effect, the law provides that when the mediation procedure
takes place and is completed before the beginning of the trial, the mediated
agreement (art.69(1)) between the victim and offender precludes either
prosecution or trial with respect to the same facts (according to a
fundamental principle of criminal law ne bis in idem). According to
Article 70(1), when the mediation takes place after the criminal process
has begun and the parties provide a copy of the mediation contract, the
prosecution or the trial are suspended. This suspension subsists until the
mediation has come to an agreement, but no more than three months from
the date on which the contract was signed. If they do not reach an
agreement within that period, the prosecution or the trial resumes (art.70
(2) and (4)).
18

Battery (art.180, Penal Code); Threat (art.193, Penal Code); Theft between husband an wife or
between close relatives (art.210, Penal Code) etc.

22

The law includes a general provision regarding mediation with children

suspected of committing criminal offences. Article 68(2) requires that the
legal safeguards that have to be guaranted to children during crimnal
proceedings have also to be assured within the mediation procedure.

1.3

Organizational Arrangements

The comparative analysis and research conducted within the European

Cooperation in the Field of Scientific and Technical Research COST A21,
Restorative Justice Developments in Europe and within the European
Forum for Restorative Justice (Aertsen, 2006; Mestitz and Ghetti 2005,
Miers and Willemsens 2004, Pelikan, 2004, Wright, 2002) reveals the
variety of the organizational and procedural arrangements for mediation
within Europe. Mestitz and Ghetti (2005: 17), commenting on victimoffender mediation with youth offenders in Europe, remarked on three
primary features:
a. VOM is mainly an in-court or near-court procedure with the
exception of Anglo-Saxon and (partly) Scandinavian countries, where
VOM is an out of court strategy
b. In continental and Southerm Europe there is a strong orientation to
organize VOM as a public service, whereas in England and Wales and
in Northern European countries private / volunteer services and groups
are prefrred;
c. Volunteer mediators prevail in Anglo-Saxon and Northern European
countries, and professional mediators in continental and Southern
Europe.
Based on their taxonomy it may be observed that the Romanian
organizational arrangements while sharing some common features with the
main traditions developed in other European countries, also display some

23

important original features. Mediation in Romania is organized as an

activity that is a matter that falls within the public interest (art.4(1)), but
which is delivered by private mediators and paid for by the parties.

The draft of law on mediation that was submitted to the Romanian

Parliament provided that it could be organized both by public and private
bodies and also by private persons, authorized according to law. This
proposal ws removed from the enacted law. Instead, the law envisages in
Article 22 that the mediators undertake the activity within the context of a
professional civil society, defined as a co-operative arangement in which
one or several associated mediators work together with technical staff, 19 or
under the auspices of a nongovernmental organization. The result is that
according to Romanian law mediation is generally possible only under
private arrangements. Mediators may also establish local or national
professional associations in order to promote their professional interests,
and can also become affiliated to professional international organizations
(art.24).

The mediation law established a national body with legal personality, The
Council of Mediation, whose main purpose is to ensure the promotion of
mediation and the representation of mediators interests. The Council
comprises nine members, elected by and from authorized mediators.
Council members are approved by the Ministry of Justice for a two year
term (art.17). The Council is also responsible for the authorization of
mediators and for establishing standards for professional training in
mediation. It has adopted a Code of Ethics and of professional conduct.
Its activities are self-financing. It raises funds from the authorization fees,
19

These kinds of societies may be established under the regulations of the Civil
Code, Chapter V, Title VIII, About the Contract of Society.

24

donations, sponsorships, sales of its publications, fines applied as

disciplinary sanctions, and from any other legal source (art.21).

An

Analytical

Account

off

the

Political

and

Legal

Understanding of VOM / RJ
The Minister of Justices Memorandum that accompanied the draft law of
mediation as presented to the Romanian Parliament identified a number of
reasons why a statutory text on ADR was both necessary and desirable. It
emphasised that mediation had become one of the priorities in he reform of
the Romanian justice system. As an alternative to the traditional, formal
resolution of conflicts, mediation was better adapted to the new dynamics
of social and economic life and to a wide variety of conflicts and problems
(for example, domestic violence, and work relationships, civil and
commercial contracts). Closely connected to arbitration, reconciliation and
the informal resolution of conflicts, mediation could also relieve the courts
of a substantial number of the cases with which they would otherwise have
to deal. As an alternative to the formal disposition of disputes, it was also
argued that mediation better satisfies the interests and expectations of the
parties in conflict; it saves time, is less stressful and less expensive than
conventional justice. Finally, the Memorandum paid special attention to
European standards, emphasising that the overall project met the
obligations on Romania to harmonise it legislation with the acquis
communautaire in order to substantiate its accession credentials on access
to justice.

2.1

The social and political history within which RJ / VOM was

developed
The law on mediation does not exist in a vacuum. It was enacted after
almost a decade of join efforts by academic researchers (D.Balahur,

25

S.Poledna, P.Abraham, S.Radulescu, D.Banciu, M.Alexiu, I.Durnescu) and

civil society (The Association of Magistrates, Iasi branch, Social
Alternatives Association, Iasi) to implement alternative diversion strategies
and measures in the juvenile and in the criminal justice systems. These
efforts and their outcomes are described in a report of the Department for
Foreign International Development (DFID / UK funded project conducted
by a team of British and Romanian researchers, judges, prosecutors and
others to implement such alternatives in the Romanian justice system
(Balahur 2004). An extension of this project promoted a VOM pilot
experiment (in Bucharest and Craiova) during 2002-04. Research on an
experimental project in which restorative justice practices were applied to
cases of juvenile offending was carried out in 2004-2005 (Balahur,
CNCSIS project). Other projects that generate synergy with these have
been undertaken in recent years.

For example, in 2001 the National

Association of the Magistrates and the Association for Social Alternatives

focused their attention on the setting up of the juvenile courts.

Taken together, these incremental steps, carried out over the past decade,
combined to support a powerful movement for the reform of the juvenile
justice system. Shared by civil society and the academic and legal
professional communities, this movement pressed for the implementation
of diversion and ADR strategies in juvenile cases. This pressure had an
important effect on the legislative process. 20 It contributed to profound
changes to the existing legal framework and to the introduction of
legislative initiatives, albeit they were set within laws that were themselves
20

Important changes to the Penal Code and the Penal Procedures Code include
widening the range of non-custodial criminal sanctions and of the diversionary
strategies. Changes in the Civil Code made reconciliation procedure
compulsory in any commercial matters. The adoption of special laws, such as

26

often designed to support and to legitimise an already existing practice.

The law of mediation can also be seen as an outcome of the pressure
generated by this reform movement.

2.2

The legal culture

In order to understand legal change it is necessary to understand how

social change impacts on a legal culture. Social change depends in part on
changes in the relevant social actors critical reflexivity about the traditions
that they have inherited and now are charged to maintain. Attempts, for
example, to harmonise the criminal and juvenile justice systems will
inevitably be tentative, and will depend on the values to which social
actors, which includes both officials and private indoviduals, make sense
of these changes through their personal choices and their professional
practices. As David Garland pertinently emphasized, The consciousness
of these actors, the categories and styles of reasoning with which they
think and the values and sensibilities that guide their choice is therefore a
key element in the production of change and the reproduction of routine,
and must be a major focus of a study of this kind (Garland 2000: 24). (of
structural changes and reforms; n.n. D.B).

The steps taken on the route to reform can be understood if one starts from
the peculiarities of the Romanian criminal justice system of the 1990s,
which was deeply structured around the values of over-retribution (Balahur
2004). The common penal practice of that time could be briefly
characterized as a presumed penal route to which there were few
exceptions. The diagnosis, a young prosecutor made, in an interview
conducted in 2003, is illustrative of the state of the Romanian criminal
the Children Act 272/2004, which regulates special provisions for the child in
conflict with criminal law, contains important diversionary effects.

27

justice system, at least until recently. Romanian criminal justice system

does not re-socialize, he observed, it is so regulated and organized, and
so only amplifies the criminal behaviour.

The main barriers to change

are due to the organizational culture and the values of the justice systems
institutions combined with the culture and the retributive philosophy of
punishment of the Romanian criminal law and practice in which
prosecutors are educated..

Even so, there has ben a gradual change in the mind-set of those actors
whose consent is a precondition to change. This is directly noticeable in
the development of a critique that brought into open debate a series of
options in penal law and practice that had earlier been taboo. This
critique challenged the received and hitherto unquestioned wisdom, that
once a person has entered the criminal justice system, he passes from one
stage to another without any chance of some diversion from a path that
requires completion of a sentence that itself demands the deprivation of
liberty. By contrast, consider the (paraphrased) words of a judge from the
juvenile court in Iasi spoken in 2006:
The integration of restorative justice practice could contribute to the
release of the courts from the excessive number of files and cases; it
should also be noted that, especially for crimes prosecuted on the
preliminary complaint of the victim, the parties are not correctly or
not at all informed about the consequences of a penal trial both for
the victim and the offender (expense, time, possible penal sanctions
for the offender, fines for the victim if he/she refuses without good
cause to attend court etc). For juvenile justice, restorative justice is
of special interest, as it could considerably reduce the number of
children and young offenders sentenced with custodial measures or
punishments for petty crimes, which do not necessarily represent the

28

right reparation for the offence. Instead, the juvenile justice system
opens the inevitable route of a penal system which does not offer too
many alternatives regarding youth offenders. Restorative justice
practices could provide more satisfaction to the victim if the
offender provides the right reparation and empathizes with his/her
suffering. This alternative way to the trial in court could also, in my
opinion, prevent re-offending and recidivism..

An Evaluation of Practice

3.1

The degree to which the countrys legal provisions meet

supranational standards

As noted, the entire project incorporating the law of mediation and the
other changes to the Romanian legal system have been promoted within
the framework of European integration and the reform of the justice
system. These changes aim to meet the obligation to harmonise Romanian
legislation with the acquis communautaire on these matters. They also
seek to comply with the standards established by the Council of Europe
and the UN in the field of crime victims protection, mediation in penal
matters, and basic principles on the use of restorative justice programmes
in criminal matters.

3.2

An evaluation of the extent, to which the implementation of

these

legal

provisions

advance,

inhibit

or

orient

the

implementation of a VOM / RJ agenda.

The law of mediation is no exception to the observation that the reform of
the justice system was promoted by pressures generated within civil
society and by international norms. The law legitimised the existing
informal practice that had been developed by various private agencies. It

29

also addressed the conditions for accession to the European Union that
required improvement in the quality of the administration of justice,
especially through the improvement of case management, a reduction in
the backlog of cases and the implementation of alternative dispute
resolution.

Caseloads grew constantly during the 1990s. If in 1990 1,513 judges had
589,660 files (civil and criminal cases) with a caseload of 390 files per
judge, in 2003, 3,557 judges had 1,453,776 files, with a caseload per judge
of 409 files.i Under these circumstances, the effectiveness of the justice
system was among the lowest in Europe, constantly monitored by the
European Commission. The problems with which the formal system of
justice is confronted have been aggravated by institutionally endemic
corruption.

It is therefore unsurprising that the level of trust that

Romanians have of the justice system is also one of the lowest in Europe
and is the lowest in the hierarchy of Romanian national institutions, as the
chart below shows.21

30

The institutionalisation of mediation could, potentially, contribute to a

decrease in the number of cases to be heard by the courts, and thus to
speedier justice. But its potential is constrained by the fact that the
Romanian approach is to require the parties to pay for the mediation that
they receive. Equally, the evidence of the publics low level of trust in
national institutions, in particular in the courts, does not inspire any
confidence that matters will quickly improve. It may be that we can be
confident only the publics low expectations about what the justice system
can achieve for them will be fully met.

21

According to the national pool data published by the Centre for Urban and
Regional Sociology (CURS), www.curs.ro, Decembre, 2005.

31

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