Carte - Regelemtarea Legala A Medierii in Romania Final

Reglementarea legala a medierii in Romania
Legal framework of mediation in Romania

Authors:
Prof.Ph.D. Cornelia LEFTER
Lecturer Claudiu IGNAT
Abbreviations
GD = HG
GO = ordonanta Guvernului
UGD = ordonanta de urgenta
NCC = New Civil Code
n.a. – note of the author
Table of Contents
1. Legal framework of mediation in Romania..................................................................... 3
2. Mediation - definition and its legal nature.......................................................................4
3. The mediation’s domains of applicability........................................................................5
4. The principles of mediation................................................................................................ 8
5. The mediator....................................................................................................................... 10
5.1. The condition imposed by law for acquiring the capacity as mediator........................10
5.2. The suspension of the capacity as mediator....................................................................... 15
5.3. The end of the capacity ad mediator................................................................................... 16
6. The legal forms used to perform mediation activities.................................................16
6.1. Professional civil society........................................................................................................ 17
6.2. The individual office of mediator......................................................................................... 18
6.3. Collective office of mediators................................................................................................ 19
6.4. The mediation performed within a non-governmental organization............................20
6.5. The advertising of the legal forms used to perform mediation activities.....................21
7. The mediation procedure.................................................................................................. 23
8. The mediator’s professional liability..............................................................................32
Conclusion................................................................................................................................ 33
Bibliography........................................................................................................................... 33
2
In this chapter we will discuss about one of the oldest ways used to settle different
conflicts: the mediation. First, we will present the Romanian legal framework regarding
the mediation and then, with more details, we will analyse the main law referring to
mediation. Thus, we will present which, according to the law in force, are the domains
where mediation applies, the principles of mediation and about the mediator. Last but no
least, we will discuss the legal forms used to perform mediation activities and briefly
about the mediation procedure. At the end of this chapter the presentation will focus on
the mediator’s responsibilities.
1. Legal framework of mediation in Romania
As an alternative dispute resolution procedure, mediation was only recently legalized in

Romania. Thus, one of the conditions imposed on Romania in order to join the European
Union was to reform its judicial system. In order to fulfil this condition, the country has
adopted its Reform Strategy of judicial system for 2005-2007. One of the objectives of
this Strategy was the introduction and utilization of alternative dispute resolution (ADR)
methods. Among them, the regulation of mediation becomes a necessity.
For the first time, a unitary legal framework of mediation was adopted through Law
no.192/2006 regarding the mediation and organization of the mediation profession,
published in the O.J1 no.441, First part, from May 22,2006. The application of law was
possible only after the Council of Mediation2 was created and the Mediators’ Directory3
of Romania was completed on May 8, 2008. The law was applied according to the
Government Decision (GD) no.12/20074 and its Application Regulation5.
Up to now, in order to complete and update the initial text of the law with the evolution
of Romanian society and the needs to use the mediation as a real alternative to judicial
procedures for solving litigations, Law no.192/2006 was modified several times.
The first modification occurred through the adoption of Law no.370/2009 regarding the
modification and completion of Law 192/2006, published in OJ no. 831, First part, from
December 3, 2009. Other modifications are represented by:
- UGD6 no.13/2012, published in the OJ no.70, Part I, from January 30, 2010
- Law no.202/2010, published in the OJ no.714, Part I, from October 26, 2010
1
O.J = Official Journal of Romania, known as “Monitorul Oficial” in Romanian
language
2
Council of Mediation = in Romanian language “Consiliul de Mediere”
3
Mediators Directory of Romania = in Romanian language “Tabloul mediatorilor din
Romania
4
Published in OJ. no. 713, Part I, from October 22, 2007
5
Published in OJ no.505, Part I, from July 27, 2007
3
- Law no. 76/2012, published in the OJ no.365, Part I, from May 30, 2012
- Law no.115/2012, published in the OJ no. 462, Part I, from July 9,2012
- UGD no.90/2012, published in OJ no.878, Part I, from December 21, 2012
- UGD no.4/2013, published in OJ no.68, Part I, from January 31, 2013
- UGD no.80/2013 published in OJ no.392, Part I, from June 29, 2013
- To these legal texts we shall add the provisions of the new Civil Code and of the
new Civil Procedural Code referring to mediation, as it is mentioned further.
All these normative acts constitute a new, modern but still quite incomplete framework
for alternative procedures that the parties involved in litigation may choose towards a
classical judicial court. Thus, the use of mediation does not defeat the constitutional right
of free access to justice. On the contrary, within the observance of this right, the parties
have now the legal framework that allows them to solve their litigations sooner and with
less cost.
2. Mediation - definition and its legal nature
According to art.1 (1) of Law no.192/2006, as modified and completed, the mediation is
defined as “an amicably settlement modality of conflicts / disputes, with the support of a
third person specialized as a mediator, under neutrality, impartiality and confidentiality
conditions and based on the free consent of the parties involved”.
The legal nature of mediation is stipulated by art. 4-(1) from Law no.192/2006. This
article declares that mediation is an “activity of public interest”. That means, at least three
things: firstly, that state institutions or authorities, or other private bodies with judicial
competences7 (such as arbitration bodies) shall observe and guarantee the citizens’ legal
rights or interests that may arise during the mediation procedure or in connection with it.
Secondly, it means that the mediation activity shall be “accomplished equally for any and
all persons, and any discrimination based on race, colour, nationality, ethnic origin,
language, sex, opinion, political affiliation, wealth or social origin” 8 is forbidden.
Thirdly, it means that, although the mediation is not compulsory9 for the parties involved,
they shall be informed by state institutions (such as the courts of law) and other private
6
UGD = Urgent Government Decision, known in Romanian language as “Ordonanta
de Urgenta a Guvernului” or “OUG”
7
According to art.6 from Law no.192/2006 introduced through the second point of
Law no.370/2009 and entered into force from March 3, 2010
8
According to art.3 from Law no.192/2006 as modified and completed
9
According to art.1-(1) the mediation is based on the free consent of the involved
parties. This paragraph was modified through the first point of Law 370/2009 and
entered into force from December 6, 2009
4
bodies with judicial competences about mediation and its advantages and shall be
advised10 to use this procedure in order to settle the existing disputes or conflicts among
them, even if a trial is already pendinte11.
3. The mediation’s domains of applicability

Law no.192/2006 regulates different domains where the mediation procedure is
applicable. Several articles of the law explain these domains, as we will present further.
By delimiting the domains in which mediation applies, these articles prove the
legislator’s will to allow that this alternative dispute resolution method is broadly used in
private law disputes, as well as, in some litigation covered by rules of public law.
The main article regulating the domains for which the mediation is applicable is art.2
from Law no.192/2006 as modified and completed. In order to understand all the details
regarding the mediation’s applicability, this article has to be corroborated with the
provisions of art. 601 and art. 64 from the same law.
The first (1) paragraph of art.2 stipulates that conflicted parties can settle by mediation,
“any conflicts or disputes occurred on civil, family, penal matters, as well as in any other
matters, under the conditions stated by law”.
Within conflicts occurred in civil matters, the third (3) and the fifth (5) paragraphs of
10
According to art.6 from Law no.192/2006 as modified and completed. This article
was modified through the second point of Law no.370/2009 and entered into force
from March 3, 2010
11
According to art.2-(1) from Law no.192/2006 as modified by the first point of the
UGD no.90/2012 (which entered into force on December 21, 2012), in order to
settle their conflicts or disputes, natural or legal persons, as conflict parties in civil,
family, or penal cases, have the obligation to attend an “informational meeting”
regarding the mediation’s advantages, even if a trial is already pendinte,. Moreover,
based on art.2-(11) from Law 192/2006 as modified through second point of UGD
90/2012, starting with December 21, 2012, the natural or legal persons that have
the obligation to attend an “informational meeting” (as referring above) have to
provide the court of law with the evidence of this attendance issued by the
mediator. If one of the parties refuses to attend the “informational meeting” or does
not respond to the invitation mentioned by art.43-(1) of the law, or is not present at
the date fixed, the mediator issues a certificate that is deposited to the court’s file. In
addition, according to art.2-(12) as modified and completed by art. III and VI from
UGD no.4/2013, for the cases brought in court after August 1st, 2013, the court will
declared as inadmissible the plaintiff’s claim if, he does not fulfill his obligation to
attend the “informational meeting” before the summons or, after the case is
triggering in court, within the term given by the court.
5
art.2 from Law no.192/2006 stipulate that natural persons or legal entities have the right
to “settle their conflicts or disputes by mediation both beyond and within the compulsory
legal procedures for amicable settlement of conflicts or disputes purposes, as stated by
the laws”. They can also include a “mediation clause” in any convention regarding the
rights of which the parties can dispose on. It is important to say that, in this latter case,
the validity of the mediation clause is considered by law independent from the validity of
the contract in which it is included in.
Moreover, art. 601 –(1) letter c)12 from Law 192/2006 stipulates that the mediation shall
be used and the parties and/or the interested party have/has the obligation to attend the
“informational meeting” and to bring in court the evidence of their attendance in case of
disputes regarding the possession, the boundary limits, the resettlement of borders, as
well as any other litigations concerning the neighbourhood relations. According to art.
601 –(1) letter f)13, they have the same obligation if the civil litigation value is below
50.000 lei. Consequently, the natural or legal persons may disregard the rule provided by
art. 601-(1) letter f) from Law no.192/2006 in the following cases: (i) if the civil litigation
value exceeds the amount of 50.000 lei; (ii) if an enforceable judgment opening the
insolvency procedure was issued in the case; (iii) in case of judicial actions regarding the
register of trade and when the parties choose to use the procedure provided by art.1013-
1024 or that stipulates by art.1025-1032 from Law 134/201014, republished with
modifications and subsequent additions.
Within the family matters, according to art. 2-(1) and 601 –(1) letter b)15 corroborated with
art.64-(1)16, the mediation is applicable to: disagreements between spouses regarding the
continuation of their marriage, the exercise of parental rights, the establishment of the
children’s residence, the parents' child support and any other misunderstandings that may
arise in relations between spouses regarding rights they have under the law or in
connection with divorce and its accessory requests.
In the field of consumer protection, according to art.2-(2) corroborated with art. 601 –(1)
letter a) from Law 192/2006, the mediation applies “in the consumer protection sector,
in case the consumer invokes the existence of a prejudice as a result of purchasing
12
Art. 601 – was introduced through point 13 from Law no. 115/2012. It produces
effects from October 1st, 2012. According to art. II from Law no. 115/2012, as
modified by UGD no. 4/2013, the provisions of art. 601,letters a)-f) from Law no.
192/2006 enter into force on February 15, 2023
13
The letter f) of the article 601 was modified through point 4 of UGD no.90/2012
and produces effects from December 21. 2012
14
Law 134/2010 regarding the Civil Procedural Code
15
Art. 601. – Idem 11
16
Paragraph (1) of art. 64 was modified through point 17 from Law no. 115/2012
and produces effects from October 1st, 2012.
6
certain deficient services or products, in case of failure in observing contract provisions
or granted warranties, in case of existence of certain abusive clauses included in the
contracts concluded between consumers and the economic agents or in case of
infringements of certain rights stated in the national or European Union legislation
regarding the consumer protection sector”.
The mediation procedure is also used, according to art.2-(1) corroborated with art. 601 -
(1) letter e), in order to settle labour conflicts regarding the conclusion, performance or
termination of individual labour contract.
In addition, according to art. 601 –(1) letter d), mediation applies in the field of
professional liability (whenever such liability is engaged), malpractice included, if special
laws do not impose other procedures.
Last but not least, according to art. 2-(1) corroborated with art. 601 –(1) letter g)17 the
mediation applies in criminal matters but, “only for offenses for which the law provides
that the criminal liability is removed by withdrawing of the prior complaint or due to the
parties’ reconciliation after the claim was brought, if the perpetrator is known or was
identified and the victims consents to attend the information meeting with the offender; if
the victim refuses to attend together with the perpetrator the informational meeting, this
is conducted separately”.
As a preliminary conclusion, within its actual form, Law 192/2006 nominates now with
clarity certain domains where the parties are advised to use the mediation even before the
case is brought in court and have the obligation to attend the “informational meeting”
regarding its advantages. At the same time, we may consider that the wordings of art.2-
(1) leave enough room for other fields18 to become object of the mediation procedure.
It is certain, on the other hand, that the object19 of mediation procedure cannot be “strictly
personal rights, such as those concerning the statute of the person, as well as any other
rights of witch the parties, based on law, cannot dispose of through convention or by any
other means allowed by law’.
17
Letter g) was modified through point 4 from UGD no.90/2012 and was supposed
to produces effects from December 21, 2012, but, according to art. II from Law
no.115/2012 as modified by UGD no.4/2013, the provisions of art. 601 letter g) will
enter into force together with Law. no.135/2010 regarding the criminal procedural
code, published within the O.J of Romania, First Part, no.486 from July 15, 2010
18
Last part of art.2-(1) provides that the mediation can be used as well:…..” in other
domains, under the conditions stipulated by law”
19
According to art.2-(4) from Law no.192/2006
7
4. The principles of mediation
From the wording of Law no.192/2006 we should understand that the mediation
procedure is based on the following principles: neutrality, confidentiality, impartiality,
equality and self-determination. As we will see, these principles correspond to the
mediators’ obligations as stated by the law and by the Code of Ethics and Deontology of
mediators.
The principle of neutrality is provided by art.1-(1) and (2) from Law no.192/2006. It
means that the mediator is a neutral part of the procedure; he cannot interfere within the
parties’ negotiations or solution. His role is only to help the parties to negotiate and to
support them in finding a solution to their conflict. As a consequence, the mediator can
generate or present to the parties different options, but he cannot, ever, give or impose
solutions. During the mediation, the mediator cannot support any of the parties involved
in the dispute and he cannot side with any of them. The parties trust him to be neutral
because he is specialized in facilitating negotiations and have the necessary knowledge to
advise them and to bring them face-to-face in order to discuss. Unlike the rules adopted
in other countries, the Romanian rules regarding the mediation impose that the mediator
is not part of the parties’ negotiation process; he is just a facilitator of their meeting and a
consultant that may help them to be opened to negotiate.
The principle of confidentiality is also stipulated by art.1-(1) and (2) from Law no.
192/2006. It represents one of the fundamental features of any ADR methods and one of
reasons for which the use of these methods has lately increased significantly. The fact
that everything that the mediator learns during the mediation remains strictly confidential
is mentioned to the parties from the beginning of the “informational meeting”. Then, the
mediator has to act accordingly and to keep “secret” everything that each party tells him.
The principle of impartiality is stipulated by art.1-(1) and (2) corroborated with art.4-(2)
and art.59 from Law no.192/2006. The mediator is impartial because he is neutral. He
does not have any power to decide how the parties’ conflict is resolved, but he can advise
them how to be open for solving their conflict and how to reach a legal solution. Under
no circumstances can the mediator interfere with the parties’ thoughts, to subconsciously
influence the solution generated through the parties’ negotiation.
If, the neutrality and impartiality of the mediator are affected during the mediation
process by any events that may occur, he has not only a legal obligation but a
professional duty20 as well to inform the parties about this and to let them to decide if
they want to continue the mediation or not.
20
See Code of Ethics and Deontology of mediators approved by the Mediation
Council on February 17, 2007
8
The principle of self-determination in mediation can be explained by the fact that the
parties are the owners of the mediation process, while the mediator is only the supervisor
of the procedure and the one who facilitates and helps the parties to be aware of each of
their needs and expectations within the negotiation process. As a consequence, any
solution reached by the conflict parties entirely belongs to them; any element of the
solution reached by the parties should be just the result of their proposals and
unanimously accepted by them. The mediator will never be able to impose a solution, to
coerce the parties to reach a solution or to influence the elements of the solution reached
by the parties. He has to allow the parties to use their free will and personal knowledge in
order to adapt the future solution to the needs and interests that each of them has in the
conflict. As a principle and a rule of mediation, the self-determination allows the parties
to withdraw themselves from the mediation at any time until a “mediation agreement”
has been reached. Moreover, the parties are free to modify their claims or their envisaged
solution until the latter totally corresponds to their will and is unanimously accepted.
Consequently, we consider that, based on this principle, the parties’ right to modify the
agreement that they have reached has to be recognised if they consider that the new
agreement will better satisfy the needs and the expectation that they pursued during the
mediation process. This principle is important also because, if it is observed, the parties
will trust more the “mediation agreement” and will freely apply it and no third party or
state authority is needed to enforce it. In addition, the Code of Ethics and Deontology of
mediators establishes a set of rules of behaviour that the mediator has to observe during
the mediation process. These rules also entitle the parties to withdraw from the
mediation, at any time, if the mediator coerces them to reach a certain solution for their
conflict that he considers being fair.
The principle of equality, as we mentioned before is provided by art.3 from Law
192/2006. This particular article stipulates that the mediation procedure is applied to any
person regardless of his race, colour, nationality, ethnic origin, language, sex, opinion,
political affiliation, wealth or social origin.
If the mediator infringes on his obligations of impartiality, neutrality and confidentiality,
the Mediation Council through the Commission of Ethics and Discipline will sanction
him. The Commission of Ethics and Discipline analyses either ex officio, or based on the
complaint of the interested party the facts regarding the flagrant violation of mediators’
obligations during the mediation process and the possible damages caused.
5. The mediator
5.1. The condition imposed by law for acquiring the capacity as mediator
9
The capacity as mediator can be obtained by any natural person who fulfils cumulatively,
the conditions imposed by law. Indeed, art. 721 from Law no.192/2006 stipulates the
following conditions:
a) has full concrete capacity;
b) has university educational studies;
c) has at lest 3 years work experience;
d) is medically able to perform this activity;
e) enjoys a good reputation and has not been finally convicted for an intentional
felony (offence) that may jeopardize the prestige of this profession;
f) has graduated mediator training courses, as provided by law, or a postgraduate
program at the level of master degree, accredited in accordance with the law and
approved by the Mediation Council;
g) has been authorized as a mediator, under the conditions stated in this law.

Let’s have a quick look through these conditions. First of all, it should be noted that these
cumulatively conditions apply only to natural person no matter in which form he/she
exercises the mediation profession. Secondly, these conditions should be fulfilled not
only by Romanian citizens, but also by citizens of other countries, as we will present
further.
a) According to the rules of the new Civil Code, in Romania, a person enjoys full
concrete capacity at the age of 18 unless he is judicial prohibited. Full concrete capacity
means, based on the provisions of art.34 and 37 from NCC, that the person has rights and
obligations under the law and, also, he/she can exercise them by concluding legal acts
alone, on his own name. As the law regulates it, the legal capacity of persons presumes
the existence of discernment. The discernment is always analysed in personam. It
depends of the person’s mental abilities and psychological development and, as a
consequence, an incapable person may have discernment. While the discernment has a
psychological nature, the capacity has its sources in the law. It means that law supposes
that all the persons over the age of 18 have the necessary discernment to exercise their
rights and to assume obligations by concluding legal acts on their own name. By
exception, those being mentally disabled or because of other mental conditions do not
have discernment or, it is altered, can be prohibited by the court to exercise their rights
alone without any protection. In addition, we may consider that there are some categories
of persons, which, although they have the full concrete capacity, they cannot22 exercise it
21
Letter c) and f) of art.7 from Law no.192/2006 were modified through point 3
from Law no.370/2009 and produce effects from December 6, 2009
22
According to art.13 from Law no.192/2006 “The performance of mediator
profession is compatible with practicing any other activity or profession, except for the
10
due to either, their official position (the president, the ministries, the judges or
prosecutors, etc.) or because they have been convicted of different felonies and the court
has decided, in addition to the main sanction, to restrict their full capacity.
b) The condition referring to university educational studies is vague and ambiguous.

It may be understood that anybody attending classes at the university can become
mediator without having yet graduated, which is senseless since the person applying to be
authorized by the Council of Mediation has to provide a copy of his/her graduation
diploma. This is why we consider that this article should be understood in the sense that
the law requests that the mediator has a high level of education, which usually is proved
by a university degree. Moreover, according to art.13 from the law it has no relevance,
which was the main field of education, since “ the performance of mediator profession is
compatible with practicing any other activity or profession”.
c) The fact that the person applying to become mediator works for at least 3 years
assumes that he/she has a minimum professional experience; he/she is better prepared to
act in a challenging environment and is more aware of his/her obligations. Having a
minimum professional experience also assumes the development of natural or learned
skills that a person may have and which are helpful to become a better mediator.
d) Being medically able to perform the mediation activity means that the person does
not have any medical condition (illness or disease) that may impede him in performing
mediation activities. The elusive wordings of this condition leave to the Council of
Mediation liberty in evaluating the candidates.
e) A good reputation is probably the most difficult fact to be proved. In other words,
the good reputation is presumed until the contrary evidence is made and the person
arguing somebody else’s bad reputation has the burden of prove. Indeed, at the
authorization moment the candidates are not requested to prove their good reputation.
The only thing that they should provide is their criminal record. If that record is clean, it
is presumed that his holder enjoys a good reputation. Some debates can be done with
reference to the provisions of art.7 letter g) final part from Law no.192/2006 regarding
the fact that the person “has not been finally convicted for an intentional felony (offence)
that may jeopardize the prestige of this profession” because the penal code has no
provisions regarding felonies that may jeopardize the prestige of the mediation
profession. Currently, the court has the discretion to decide, for certain felonies, as a
complementary sanction the interdiction to perform mediation activities. But, we wonder
what would happen until the person is finally convicted for a felony committed with
incompatibilities stated by special laws”.
11
intention that may jeopardize the exercise of the mediation profession, could he still
apply to become mediator? At the same time, what would happen if the person is
convicted of another felony that has nothing to do with the exercise of the mediation
profession, or is committed without intention, could he still become a mediator?
f) The person that applies to become a mediator should produce proof that he/she
has graduated23 mediator training courses, as provided by law, or a postgraduate program
at the level of master degree, accredited in accordance with the law and approved by the
Mediation Council. It should be noted that, at this moment, there are no postgraduate
programs at the level of master degree or any master program accredited according to the
law of education and approved by the Mediation Council. This is why, at least for the
moment, the professional training of mediators is offered only by training providers. The
Mediation Council, according to the professional training standards in the field,
approves24 the courses and curriculum used by these providers.

As we mentioned above, these conditions are addressed to Romanian citizens that want to
become a mediator and apply for this qualification in Romania. Further the law
distinguishes among Romanian citizens, citizens of European Union countries or of
European Economic Space or Swiss Confederation and citizens of other countries.
Thus, when a Romanian citizen applies to become a mediator in Romania and fulfils the
conditions imposed by art.7, mentioned above, he/she becomes a mediator based on the
authorization granted25 by the Mediation Council. As a consequence, he/she can exercise
mediation as a profession on the Romanian territory. By difference, when the Romanian
citizen has obtained the qualification in the mediation profession in an European Union
country, or in a state of the European Economic Space and of Swiss Confederation, the
document that proves his/her qualification in the mediation profession should be
recognised26 by the Mediation Council according to the provisions of Law no.200/2004
regarding the recognition of diploma and of professional qualification for regulated
professions in Romania, as modified and completed.
23
See also art.9-(1) from Law no.192/2006 regarding the institutions that are
allowed to offer training classes in mediation profession.
24
See art.9-(2) from Law no.192/2006 and the Decision no.12/2007 of the
Mediation Council
25
The authorization is granted according to the provisions of art.8-(1) and 17-(2) from
Law no.192/2006.
26
According to art.8-(4) from Law no.192/2006. This paragraph was modified
through the first point of Government Ordinance (GO) no.13/2012 and produces
effects from February 2nd, 2010
12
The second case concerns the citizens of a European Union country, or of a state of
European Economic Space and of Swiss Confederation. Within the freedom of
establishment27, these persons are entitled to carry on mediation activities in Romania if
they have obtained this right according to the legislation of one of these states, and the
Mediation Council has recognise the document that proves their qualification in
mediation profession according to the provisions of Law no.200/2004 regarding the
recognition of diploma and of professional qualifications for regulated professions.
On the other hand, according to art.8-(7) and (8)28 from Law no.192/2006, the citizens of
European Union countries, or of those states that belong to the European Economic Space
or to the Swiss Confederation, may be qualified in the mediation profession in Romania
when the acquirement of the capacity as mediator is not regulated in their states. When
these persons have acquired the qualification as mediator in Romania, based on
reciprocity principle, they shall be able to permanently perform mediation activities
anywhere on the territory of the European Union or European Economic Space or Swiss
Confederation based on the document certifying that they legally perform the mediation
profession in Romania. The Mediation Council issues29 under the conditions stipulated by
the mediation training standards the above-mentioned document. In addition, according
to art.8-(10)30 from Law no.192/2006, the Information System within the internal market
is available for verification of documents requested for authorisation as mediator.
In order to recognise the capacity as mediator acquired in European Union countries, or
in states that belong to the European Economic Space or to the Swiss Confederation, the
Mediation Council assesses the skills and knowledge of the candidate together with
his/her professional experience as a mediator. It can also require the candidate to bring
evidences that he/she fulfils all the legal conditions to become a mediator.
The last case foreseen by the law refers to the citizen of a third country who has
completed mediator training courses or has acquired the capacity as mediator abroad and
wishes to permanently perform mediation activities in Romania. This person has access
27
The freedom of establishment and the right to exercise the mediation as a
profession by the citizens of European Union countries or of the states of European
Economic Space and of Swiss Confederation is regulated by art.8-(2) from Law
no.192/2006. This paragraph was introduced through the first point of GO
no.13/2010 and produces effects from February 2nd, 2010
28
The paragraphs (7) and (8) of art.8 from Law no.192/2006 were added through
the first point of GO no.13/2010 and, respectively, the fourth point of Law
no.370/2009.
29
Art.8-(9) from Law no.192/2006. This paragraph was introduced through point 4
from Law no.370/2009 and produces effects from December 6, 2009
30
The tenth (10) paragraph of art.8 was introduced through the second point of GO
no.13/2010 and produces effects from February 2nd, 2010.
13
to the mediation profession under the following conditions mentioned by art.8-(5) 31 from
Law no.192/2006:
a) presents the title that proves his/her educational studies accompanied by the
certificate of equivalence issued by the Romanian Ministry of Education and
Research;
b) presents the content of training curriculum, including the training duration, and
the documents demonstrating his/her acquired the capacity as mediator.
The Mediation Council evaluates the content of these documents and compares the
knowledge and abilities certified by them in accordance with the Romanian legislation
and decides if it is the case to grant the access to mediation profession or not. If the
certified knowledge and abilities of the candidate do not correspond to the qualification
requirements, as stated by the Romanian law, the Mediation Council defines the
validation or compensation requirements based on the regulations stated under Art.17-(2)
of the law.
But, a foreign mediator32 may perform mediation activities in Romania also occasionally,
as a „provision of services”. In this case, the person acts as mediator based on the
document certifying that he/she legally performs this profession in the country he/she is
originated in or comes from and is exempted from authorization and listing requirements.
The only obligation imposed by law is that the concerned person shall notify in writing
the Mediation Council about carrying out the mediation activities in Romania. We
emphasize that, in case that a foreign mediator occasionally performs the mediation
activities in Romania, without notifying the Mediation Council, the law does not provide
yet any sanctions, which unfortunately is a significant defect of the present law.
As a conclusion, it has to be noted that, according to art. 81 corroborated with art.12-(4)

from Law no.192/2006, in Romania, the mediation profession in performed only by those
persons that had acquire the authorized mediator capacity under Romanian law and by
those that are allowed33 to exercise mediation activities based on the provisions of
European Union law.
If a person does not fulfil the legal requirements to become mediator or there are not
enough evidences to sustain his application, the Mediation Council34 may issue a
motivated refusal. Nevertheless, according to art. 81-(4) from Law no.192/2006, the
31
Art.8-(5) from Law no.192/2006
32
33
According to art. 161 from Law no.192/2006. This article was introduced through
the point 4 of the GO no.13/2010 and produces effects from February 2nd, 2010. It
refers to the application of UGD no.49/2009 regarding the freedom of establishment
and the freedom to provide services in mediation field.
34
According to art. Art. 81-(3) from Law no.192/2006. Art.81 was introduced through
point 13 of the GO no.13/2010 and produces effects from February 2, 2010
14
applicant has the possibility to challenge in court the Mediation Council’s decision based
on the provisions of Law no.554/2004 regarding the administrative litigations.
. Furthermore, based on the authorization35 granted by the Mediation Council, the mediator
may apply to be listed on the Mediator’s Directory. The Directory is a public record issued
by the Mediation Council, updated annually36 and published in the Official Journal of
Romania, First Part. At the same time, the Mediation Council also keeps available for any
interested persons, at its headquarters, a copy of this record. Others copies of the Directory
are to be found at the Ministry of Justice and on its website, at the courthouses and at the
headquarters of the local public administration authorities.
. According to art.12-(2) from Law no.192/2006, the Mediators’ Directory records data
regarding each mediator, such as: name and surname; professional headquarters; main
education background of the mediator, training institutions attended and graduation titles
obtained; mediation area he/she is specialized for; duration of his/her practical experience
in mediation activities; foreign languages he / she can use to perform mediation; his/her
membership to a professional association in the area of mediation, as well as, to other
organizations and if there are any cases of suspension.
5.2. The suspension of the capacity as mediator
The exercise of the capacity as mediator and of the right to perform mediation activities
may be suspended37 in one of the following cases:
a) when the mediator become incompatible according to the laws. When this situation
occurs, the mediator is bound to inform the Mediation Council of his/her incompatibility
within 3days period;
b) on the writing request of the mediator;
c) as a disciplinary sanction under the conditions settled by art. 39-(1) letter c) from Law
no.192/2006.
In addition, according to art.14-(2) from Law no.192/2006, the exercise of the capacity as
mediator is suspended under law when the mediator is subject to a preventive custody,
until the penal trial is settled.
The suspension of the capacity as mediator is decided or ascertained by the Mediation
35
The authorization granted by the Mediation Council is, in fact, an operating permit
that allows the mediator to perform mediation activities.
36
37
According to art. 14 from Law no.192/2006
15
Council38.
5.3. The end of the capacity ad mediator
According to art.15 from Law no.192/2006, the mediator’s capacity to perform mediation
activities ceases in one of the following cases:
a) on the request of the mediator, by his written waiver statement;
b) in case of death;
c) in case the mediator no longer fulfils the legal requirements provided by art. 7
letter a) and d) from Law.no.192/2006;
d) as a disciplinary sanction, in accordance with the conditions provided by art.

39-(1) letter d) from Law no.192/2006;
e) in case the mediator is irrevocably convicted of a felony committed with

intention, which makes him/her unfit to practice this profession.
The end of the person’s capacity as a mediator has as effect39 the removal of the
mediator’s name from the Mediator’s Directory, no matter which of the above-mentioned
cases was the legal base for this cessation. As a consequence, that person no longer has
the right to perform mediation activities and, if he/she will disregard this interdiction
he/she may be further prosecuted.
Finally, it should be noted that, similar to the case of suspension, the end of the capacity
as a mediator is decided or ascertained by the Mediation Council.
6. The legal forms used to perform mediation activities
The mediator is a person who exercises a liberal profession within the limits imposed by
law. Being professionally independent, the mediator cannot be submitted to any
restrictions, political or juridical pressure. He is performing specialized activities,
mediation activities, as well as he/she is able to, based on his/her knowledge.
The mediator can perform this profession either individually or together with other
mediators. Thus, art.22-24 from the Third Chapter of Law no.192/2006 stipulate the legal
forms to be used for exercising mediation activities. Indeed, art.22-(1) provides that the
38
39
16
mediators can carry on their activities in “a professional civil entity, within an office
where one or more authorized mediators can work together… or within a non-
governmental organization”. In other words, the law imposes three different forms that
may be used for performing mediation activities: professional civil society, individual or
collectively office and non-governmental organization. In addition, according to art.22-
(3) from Law no.192/2006: “In performing their profession, the authorized mediators
can be hired on individual labour contract basis but only under the forms stated by art.
22-(1)”.
We shall observe that, there are no special rules within Law no.192/2006 that regulate the
legal forms which may be used by authorized mediators in order to perform their
profession. It means that, since this law just enumerates the legal forms without
regulating them, the internal organization and functioning rules for each of them are to be
found in other laws than the mediation law.
6.1. Professional civil society
As a form to carry on mediation activities, the professional civil society is subject to the
rules provided by the new Civil Code40 regarding the “professional simple society”.
This legal form is created contractually by two or more authorized mediators, based on
the so-called “society contract” concluded by the partners/associates. One of the
associates is nominated as the “coordinator mediator” and he/she will run the business
and will represent the professional society in relations with third parties. In order to
create this kind of society, the associates should bring their contributions. The
contributions may be in money, in kind, in know-how or in industry (meaning, the
partners’ direct work).
Following the application of the new Civil Code, we emphasise that the professional civil
society may have, or not, legal capacity. In case the professional society was created
without legal capacity, it can be transformed later, through the will of the associates, in a
society with legal capacity. In this case, the professional society created through
transformation will take over the entire patrimony of the initial simple society. We say
that, in this case, it is a universal transmission of assets.
But, when the associates wish to create, from the beginning, a professional society with
legal capacity they have to register it at the Mediation Council and at the fiscal
authorities. The professional society becomes a legal person from the day of its
40
According to art 7 letter c) from Law no.71/2011 regrding the application of Civil
Code:„Within the normative acts applicable at the date of entering into force of civil
code .....c) the references to the professional simple society are considered to be made to
the professional society, with or without legal personality, as applicable”
17
registration at the Mediation Council. Thus, it will have its own tax registration code,
apart from the same code attributed to each of the associates (authorized mediators) when
they were authorized as mediators.
In addition to the rules of new Civil Code regarding the functioning of the simple society,
art.22-(2) from Law no.192/2006 provides that “…the associated mediators… can hire
translators, jurists or other specialized personnel, as well as administrative and auxiliary
staff as needed for the mediation activity” . Moreover, because the simple society does
not have legal capacity, each associate, as an authorized mediator, “…is bound41 to keep
his/her own archives and registers, as well as his/her own bookkeeping”.
6.2. The individual office of mediator
The authorized mediator can exercise the liberal profession either individually, through
an individual office of mediator, or together with other authorized mediators, as a
collective office of mediators.
The individual office of the mediator becomes a legal person based on the authorization
to perform mediation activities issued by the Mediation Council to the mediator. The
mediator whose authorization is the basis for becoming a legal person represents the
individual office of the mediator.
According to the law, the natural person that exercises a liberal profession under the
provisions of a special law, as the law regarding the mediation is, should register himself
to the competent fiscal authority where the professional office is located or where, in fact,
he/she effectively performs that activity.
As a consequence, the mediator with an individual office should submit to the competent
fiscal authorities a fiscal registration form for authorized natural persons that
independently carry on economic activities or perform liberal professions. To this
application he/she has to append copies regarding the operating permit issued by the
Mediation Council (meaning the authorization granted to the authorized mediator by the
Mediation Council) and to prove42 that he/she has professional headquarters. He/she must
also submit documents that prove his/her civil status and any other evidence that sustain
the application. Within 15 days from the moment when the fiscal registration form is
submitted, the fiscal authority issues the tax registration certificate that includes the tax
41
According to the provisions of art 23 from Law no.192/2006 “in carrying out
his/her activity, the authorized mediator is bound to keep his/her own archives and
registers, as well as own bookkeeping”.
42
The prove may consist of lease or bailment contract or the ownership evidence
18
registration code of the taxpayer. The tax registration certificate may refer not only to
mediation activities but also to any other activities (advocacy, insolvency) that the person
carries on as a liberal profession. Consequently, in this case, the registration code of the
taxpayer is unique for all the activities, while the income statements are different for each
of them.
However, whenever the authorized mediator has multiple locations where he performs
mediation activities, the competent fiscal authority to issue the tax registration certificate
is determined, according to the Fiscal Procedural Code rules43 based on the location
declared as being the principal headquarters. Consequently, all the other locations are to
be considered, from the fiscal point of view, secondary professional locations and will
have the legal regime of these places.
On the other hand, in case that, after the tax registration code was issued, there are
modifications regarding the professional headquarters, the name or other elements
registered at the fiscal authority, the taxpayer shall submit a modifying statement within
30 days from the moment these modifications have occurred. Based on these
modifications a new tax registration certificate will be issued.
Finally, the mediator with individual office can hire translators, jurists or other
specialized personnel, as well as administrative and auxiliary staff as needed, for the
exercise of his profession. However, since the individual office is a form of exercising a
liberal profession that has its own legal capacity but includes only one authorized
mediator, art.23 from Law no.192/2006 will apply for the general obligation that any
authorized mediators have, meaning “... to keep his/her own archives and registers, as
well as his/her own bookkeeping”.
6.3. Collective office of mediators
The above-mentioned rules referring to an individual office of the mediator apply, in

principle, to a collective office as well. A collective office is composed of two or more
authorized mediators who have the option to create a single legal person. It means, that
they have the choice either to work together within the same legal form and share a
common accounting, or to work separately as independent legal persons and share the
common expenses necessary to administrate the headquarters. The collective office of
mediators may be represented by any of the authorised mediators who work within this
legal form.
43
See art. 72 from the GO no.92/2003 regarding the Fiscal Procedural Code as
modified and republished and art. 46 and the following from the Romanian Fiscal
Code –Law no.571/2003 and GD no.44/2004 regarding the Methodological Norms
for the application of Fiscal Code
19
6.4. The mediation performed within a non-governmental organization
The non-governmental organizations regulated by law are the associations and the
foundations. They are regulated by GO no.26/2000.
The association is, according to the definition stipulated by the law44, a subject of law,
which is created without the members’ intention to obtain profit. The association is
created through the agreement of three or more persons who put together, without the
right of restitution, their contributions in order to carry on certain activities of public
interest, either for a community, or for their personal and non-patrimonial gain. The
contributions can be monetary, in kind, know-how or just the members’ work.
Theoretically, being in the presence of the mediation law, we expect certain condition for
the creation of an association in this field. But, Law no.192/2006 does not impose any
special conditions either regarding the members or the association’s functioning. It means
that anybody can create an association having mediation as the object of activity. By
“anybody” we shall understand mediators who were not authorized under the Romanian
law, or even persons who are not authorized as mediators, as far as they contribute to
achievement of the association’s object of activity.
In order to create an association pursuing mediation activities, first of all, the associates
should place on hold the association’s name at the Ministry of Justice. Then, the name
held is lodged at the registry of the court that is territorially competent according to the
future headquarters of the association. Together with the name, the articles of association
and the association’s statute drafted in authentic form or certified by a lawyer, the
documents that prove the professional headquarters and the patrimony45that was
attributed to the association at the date of its creation are also submitted.
The court of law has the competence to decide the creation of the association and its
registration within the associations’ Register. As a consequence, the association obtains
its legal capacity from the date of its registration and thus it enjoys the benefits46 of being
a subject of law. In addition, we should note that, the association will have Romanian
nationality and, thus, the Romanian law applies to its creation, functioning and cessation.
After the association was created, either immediately or at a later date, the associates may
decide to create branches or subsidiaries in Romania or abroad. The creation of branches
44
See art.4 from the GO no.75/2000 regarding the associations and the foundations.
45
According to the law, the association’s patrimony value is equal to at least the
minimum wage for the economy at the date when the association is created. It
should be mentioned that, according to the Romanian law, the patrimony represents
the total value of the rights; obligations and the assets to which they relate that
belong to a person, subject of law.
46
Being a subject of law means that the association is recognized by its “name”; has
its own “headquarters” and its own “patrimony”; it can stand in court in its own
name, as a plaintiff or a defendant.
20
or subsidiaries will be thus submitted to the law of the place where these
dismemberments are located.
In order to register the association as a taxpayer, the court communicates, ex officio, to
the competent fiscal authority the completed enrolment of the association together with
the number assigned to it in the associations’ Register.
The foundations47 are non-governmental organizations of bigger importance, subjects of

law that are created by one or more persons whom, based on legal acts inter vivos or
mortis causa, decides/decide to permanently and irrevocably affect a patrimony with the
view to support the needs of public interest or of a community.
The procedure used to create a foundation is similar with that provided for the creation of
an association. Nevertheless, by difference of the association, the foundation’s patrimony
should at least equal 100 times the minimum wage for the economy. The foundation
becomes the subject of law from the date of its registration within the foundations’
Register, which is held by the competent court of law according to foundation’s
headquarters. As a subject of law, the foundation enjoys its full legal capacity from the
moment of its registration.
Finally, according to art.24 from Law no.192/2006, the mediators “…shall form local
and national professional associations aiming to represent their professional interests
and to protect their statute and can join international professional organizations”. The
conditions and criteria of admissibility within these associations take into account their
particular nature. It means that, in principle, only the authorized mediators can become
members of professional associations unless their constitutive deed provides some
exceptions or concessions.
6.5. The advertising of the legal forms used to perform mediation activities.
The Mediation Council establishes the rules regarding the advertising of mediators and of
their legal forms used for performing mediation activities. The means of advertising are
briefly enumerated48 by these rules and, in principle, they can be used only with the
purpose of promoting and offering mediation services. They cannot be used with the view
to attract the customers for another personal activity or for third parties’ interest. The
47
According to art.15 from GO no.26/2000
48
In order to advertise themselves and the legal forms used for performing
mediation services, the mediators shall use one of the following methods of
advertising: posting a firm; ads of advertising according to the advertising rules
established; announcements or notes in yearbooks, phonebooks or other
publications; professional advertising materials for participation in professional
events; services offered by mail, business cards or internet sites.
21
mediators are forbidden to use in their advertising comparative, unreal or exaggerated
mentions regarding themselves as mediators or about their activities, and cannot give
guidance on their clients’ identity unless the latter have agreed upon.
In accordance with the Mediation Council’s rules, the mediator’s firm (professional
name- n.a) should be posted at his/her professional headquarters and should have a
maximum size49 and specific elements50.
In addition, the mediators have the obligation to post inside their professional
headquarters the authorization51 issued by the Mediation Council regarding their capacity
as mediator together with the certificate referring to the legal form that he/she was
allowed to use for performing mediation activities.
Whenever the professional headquarters is changed or other substantial modifications
regarding the exercise of the mediation profession have occurred, the mediators also have
the obligation to inform the Mediation Council and to make available to the public this
information.
The mediators, as well as their legal forms to exercise this profession are allowed to have
their own site or blog or to use any other electronic forms of advertising or displaying
information regarding the mediation activities carried out. However, by using these
electronic forms, the mediators are forbidden to include advertising or publicity mentions
regarding goods or services different than those stipulated by the mediation law. In
addition, they shall respect the honour and dignity of other mediators and the professional
secrecy.
Whenever the mediators do not observe the advertising rules established by the
Mediation Council, they will be charged52 with disciplinary misconduct.
7. The mediation procedure
49
Maximum size is 90 cm x 200 cm
50
The specific elements are: a) the noun “Romania” and the denomination
“Mediation Council” together with its logo; b) the denomination of the legal form
used to perform mediation activities according to the authorization issued by the
Mediation Council; c) the complete address of the professional headquarters; d)
optional – the contacts (telephone number, mobile phone number, email address,
etc.); e) position where it is registered in the Mediators’ Directory.
51
According to the rules of the Mediation Council, the mediators should poste the
original or a copy of the authorization
52
According to art.38 letter e) from Law no.192/2006, the non-observance of the
rules regarding the publicity of mediators and of the legal forms used to carry on the
mediation profession is considered to be a misconduct and it is sanctioned under
law and in accordance with the Regulation of organization and functioning of the
Mediation Council
22
As we have previously mentioned, the conflict parties may use the mediation procedure
in order to end their conflict, either before they brought their case in court or based on a
contractual obligation. As such, the mediation procedure was and remains an optional
procedure, which depends of the parties’ will and of their confidence that a third party,
the mediator, may help them to solve their dispute away of the judicial rules applied by
the judge. Furthermore, the parties have not only the freedom to choose the mediation as
an alternative procedure to solve their dispute, but they have also the right to willingly
decide who shall be the mediator they trust.
Lately, due to the increase of the number of cases that the courts have to hear, the
Romanian legislator has adopted the UGD no.90/2012 regarding the modification and
completion of Law no.192/2006 regarding the mediation and the mediator profession
and, respectively, of art. II from Law no 115/2012 on December 12, 2012 regarding the
modification of Law no.192/2006.
Basically, this new normative act imposes that, within the cases, which, according to the
law, can be object of mediation, the interested parties, or the party should bring the
evidence that they/he/she have/has attended the “informational meeting” regarding the
mediation advantages. Thus, the preliminary procedure of “informational meeting”
becomes compulsory from August 1st, 2013 in specific categories of cases. Moreover,
this preliminary procedure can be used either before the parties file a petition for
summons in court, or at any moment during the trial until the final judgment is reached.
However, in this latter case, the judge can order to the conflicted parties only to attend the
“informational meeting” but cannot obligate them to use the mediation procedure for
solving their dispute. In addition, the law expressly recognizes the right of the conflicted
parties to return to court if the mediation fails. As such, the mediation maintains its
voluntary character and it remains at the discretion of the parties to use it or to return in
court and to let the judge find a solution to their dispute.
The cases where the preliminary procedure of „informational meeting” is mandatory are
now provided by art 601 from Law no.192/2006, as follows: consumer protection; family
matters; disputes regarding the possession, the boundary limits, the resettlement of
borders, as well as any other litigations concerning the neighbourhood relations; labour
conflicts and professional liabilities, civil litigation with the value below 50.000 lei and in
certain conditions in criminal matters. Since we have already discussed in detail about
these fields at point 3 of this chapter, let’s go further and see who is entitled to pursue the
“informational meeting”?
According to the legal rules in force, the “informational meeting” can be conducted by an
authorized mediator or by other persons.
23
In the first case, when an authorized mediator conducts the “informational meeting”, the
plaintiff has the right to select him/her. Then, the selected mediator sends invitations to
all the procedural parties and invites them to attend the “informational meeting”. All the
formalities to convene the parties at the “informational meeting” should be accomplished
within 15 days53 from the moment the mediator was selected.
In addition, it is important to note that, the law 54 expressly provides that the parties’
agreement to attend the “informational meeting” or the attendance of such session does
not imply the acknowledgement of the right, which may be the object of the trial and
does not interrupt the prescription.
The party/parties invited to the “informational meeting” may refuse to attend it, or
do/does not respond to it or are/is not present at the due date. In all these cases, the
selected mediator fills out the minutes55 of the “informational meeting” which are
deposited in the court’s file. But, when all the invited parties attend the “informational
meeting”, the mediator issues a “certificate of information” which provides evidence of
their attendance.
In the second case, based on the last modifications 56 occurred within the mediation law,
persons other than an authorized mediator may conduct the “informational meeting”,
such as: judges, prosecutors, lawyers, notaries or legal advisors. We should observe that,
this particular provision produces inconsistent effects, which contradict with other legal
provisions in force. For example, the new modifications do not provide what kind of
proof (act-n.a) will be issued to the interested parties that have attended the
“informational meeting” by those that, now, have the ability to conduct such session.
Furthermore, considering the active role of the judge within civil or penal cases and his
position as a mediator, the new modifications do not specify if the information about the
mediation advantages is subscribed to his active role provided by art.21 from Civil
Procedural Code57 or, by difference, it can be considered as a motive of reclusion.
Following the same idea, the legal provision challenged here does not mention what kind
53
According to art.602 –(1) from Law no.192/2006. Art. 602 was introduced through
point 6 of UGD no.90/2012 and produces effects from December 21, 2012
54
See art. 602 –(2) from Law no.192/2006
55
See art.2-(11) from Law no.192/2006. This paragraph was introduces through the
second point of UGD no.90/2012 and produces effects from December 21, 2012
56
See Law no.214/2013 regarding the approval of UGD no.4/2013 regarding the
modification of Law no.76/2012 regarding the application of Law no.134/2010
regarding the Civil Procedural Code, as well as the modification and completion of
some related normative acts. According to these modifications, within art.2 from
Law no.192/2006, after the paragraph (12 ) there are introduced two new
paragraphs (13) and (14) which stipulate that “ the informational meeting regarding
the advantages of the mediation procedure may be conducted by judges, prosecutors,
legal councils, lawyers, notaries, cases in which it is certified in writing”.
24
of act the judge or the prosecutor will issue in order to prove the attendance of the
“informational meeting” and, consequently, its nature and its legal force. The same can
be argued in the case of notaries or legal advisors. Of course, the question is not if these
„other persons” have or not the necessary skills to conduct an “informational meeting”
but it is an issue of corroborating the new provisions regarding the mediation with the
rules of other special laws, already in force.
However, we note that, according to the new art.2-(14) from Law no.192/2006, the
“informational meeting” regarding the mediation advantages is a service offered free of
charge and consequently any fee, tax or other amounts claimed for this are forbidden.
Finally, let’s remember that, according to art.2-(12) from Law no.192/200658, when the
plaintiff had the obligation to attend the “informational meeting” in the cases stipulates
by art. 601-(1) letter a)-f) from the law and he does not fulfil it, the judge will declare his
application for summons as inadmissible59.
In conclusion: the mediation procedure can be considered a procedure that may have two
steps (the preliminary step in some cases and the mediation itself) or just one.
Nevertheless, the mediation itself is always an optional procedure for the conflicted
parties while, in some cases, they are bound to attend a preliminary “informational
meeting” because the law imposes that. Even when the conflicted parties are bound to
attend the “informational meeting”, they still have the choice either to go further with the
mediation, or not. The only obligation imposed by law on them is to attend the
“informational meeting”, not to accept the mediation itself. Moreover, it is important to
understand that the conflicted parties have no legal or voluntary obligation to solve
through mediation their dispute or to pursue the entire mediation procedure; they have
just a possibility to do that.
57
Art.21 from Civil Procedural Code provides that the judge shall have an active role
consisting in recommending to the parties to amicably solve their dispute, or to try
during the trial to reconcile the parties.
58
As it was modified and completed by art. III and VI from UGD no.4/2013,
59
According to UGD no.4/2013 regarding the modification of Law no.76/2012 for
the implementation of Law no.134/2010 regarding Civil Procedural Code,
respectively the modification and completion of some related normative acts,
published within OJ no.68/01.31.2013, First Part, the art. III from UGD no. 90/2012
for the modification and completion of Law no.192/2006 regarding the mediation and the
organization of mediator profession, as well as for the modification of art. II from Law
no.115/2012 regarding the modification and completion of Law no.192/2006, published
in the OJ no.878/12.21.2012, First Part, is modified and stipulates that the sanction of
inadmissibility of the plaintiff’s application for summons applies only to the cases
brought in court after August 1st, 2013
25
With or without a preliminary “informational meeting”, at a certain moment and only if
the conflicted parties accept to use the mediation as an alternative procedure to settle their
dispute, they will be led to this procedure.
The conflicted parties may freely choose the mediation before their conflict is brought to
court or because they have a contractual obligation to do that.
If only one of the parties appeals to a mediator, the latter will convey by any means, at
the addresses indicated by the applicant, a written invitation addressed to all the parties
involved in the dispute. The invitation shall provide within maximum 15 calendar days a
meeting date for becoming acquainted with the mediation advantages and for debating
the acceptance of the procedure. According to the law, at this meeting, the mediator
cannot, under any circumstances, carry on any mediation. The aim of this meeting is only
for the parties to be informed about the mediation advantages. In order to accomplish the
goal of the procedure at this stage (meaning to bring the parties together in order to find
out about the mediation advantages), the mediator can use any means of communication
(telephone, email, letter, etc.).
When one of the invited parties informs the mediator about his impossibility to attend this
meeting, the mediator can meet him separately, at another day.
The mediation will be considered declined, when one of the parties gives a written and
express refusal regarding the use of the procedure, or does not respond to the invitation
sent to him, or is absent, twice in row, at the meetings established.
As soon as all the parties involved in litigation accept the mediation procedure they shall
sign together with the mediator the “mediation contract”.
The `’mediation contract” is concluded between the mediator and the parties involved in
the conflict, with no relevance to their number or their interests. Under penalty60 of
absolute nullity, the “mediation contract” is concluded in a written form and is to be
signed individually by all the parties, or by their representatives holding a special proxy
for to this operation. Each party is entitled to receive an original copy of the document.
60
See art.47 from Law no.192/2006
26
Also, the “mediation contract” shall include specific provisions imposed by law61,
otherwise it will be sanctioned with “relative nullity” and consequently annulled62. It
means that, the failure to include one of the provisions stipulated by art.45 can be
confirmed63 by the interested party whenever it expressly or tacitly abandons his right to
claim the nullity.
It is also important to note that, according to art.46-(2) from Law no.192/2006, the
“mediation contract” cannot include, under the sanction of absolute nullity, any
provisions that are contrary to the law or the public order.
On the other hand, the law64 protects the mediator against the parties’ dishonesty
behaviour, because it considers the “mediation contract” as a: “writ of execution
concerning the parties’ obligations to pay to the mediator the due fee at the due dates”. It
means that, in case the parties refuse to pay the mediator’s due fee, he can directly
enforce the “mediation contract” without any other previous warning.
The conclusion of the “mediation contract” has very important effects. First of all, the
61
According to art.45 from Law no.192/2006 “The mediation contract should include,
under the sanction of nullity, the following clauses: a) the conflicted parties’ identity or
of their representatives, as the case might be; b) the type or object of the conflict; c) the
parties’ statement that they have been informed by the mediator about mediation, its
effects and applicable rules; d) the mediator’s obligation to keep confidentiality and the
decision of the parties to keep confidentiality, as the case might be; e) the commitment
of the parties under conflict to observe the rules applicable to mediation; f)
the obligation of the parties under conflict to pay the due fee to the mediator and the
expenses made by this one during mediation for the interest of the parties, as well as the
down payment and payment modalities of such amounts, including the situation when
mediation procedure is waived or fails, as well as the share to be borne by each party
taking into account, if it is the case, their social situation. Unless otherwise agreed, these
amounts shall be borne by the parties in equal shares; g) the parties’ agreement
regarding the language mediation is to be performed in; h) the number of copies the
agreement is to be prepared, in case such agreement shall be inwritten form, depending
on the number of the parties that signed the mediation contract; i) the parties’ obligation
to sign the Minutes drafted by the mediator, regardless how themediation ends”. The
letters b), c) and d) of this article were modified through point 24 from Law no.370/2009
while the letters h) and i) through point 25 from Law no.370/2009 and produce effects
from December 6, 2009)
62
According to art.1251 from the new Civil Code from July 17, 2009 (adopted through
Law no.287/2009 republished): “the relative nullity causes: the contract is annulled
when the legal provisions regarding the concrete capacity, the consent of one of the
parties was vitiated, as well as in other cases expressly provided by law were
disregarded”.
63
According to art. 1562 –(1) from civil Code: “the confirmation of an annullable
contract results from the express or tacit will to abandon the right to invoke the nullity”.
64
27
parties have the chance to solve their dispute away from the decision made by the court
of law. Secondly, from the moment when the “mediation contract” is concluded, the
prescription65 of the parties’ right to bring in court the debatable right (object of the
mediation-n.a.) is suspended until the mediation is closed/ended, in any of the forms
provided by the law.
During the mediation procedure, the lawyers can assist66 the parties. This possibility is
envisaged whenever there are suspicions that the weaker party may not be protected
during the procedure or their lawyers perceive the mediation as a competitive procedure.
Moreover, according to art.52-(2) from Law no.192/2006, during the mediation meetings,
a party or both of them may choose to be represented67 by a proxy. The trustee shall have
a special proxy referring to what he can do. Nevertheless, the trustee can conclude any
act of disposal on the principal’s (party) name and on his behalf and shall always act
within the limits68 of his proxy. When the mediation is closed through an agreement, the
party’s trustee can also conclude any acts of execution stipulated therein. It is important
to note that, the mediator has no direct attributions or powers to censoring the agreement
concluded by the party’s representative that will close the mediation procedure. But, in
order to be sure that the mediation agreement will be fully implemented, he gives the
party’s representative a consultation period of time for informing the party about his
achievements.
A very important obligation imposed by art.53-(1) from Law no.192/2006 refers to the
“confidentiality” of mediation debates. It means that, not only the mediator, but, also the
parties and their lawyers or other representatives are bound to keep confidential all the
discussions, negotiations or debates they may attend. As a consequence, when the parties
are assisted or represented, the mediator may request these persons to sign a
“confidentiality agreement”. The provisions of art.55 from the law also express the
obligation of confidentiality. According to the wordings of this article, when the subject
matter of the mediation presents difficult or controversial legal or juridical aspects, or
aspects related to very specialized fields, the mediator may, based on the consent of the
parties involved, ask for the opinion of an external specialist. In this case, the mediator
presents to the specialist only the controversial issues, without revealing the parties’
identity.
65
66
See art.52-(1) from Law no.192/2006
67
See also art.2013 from Civil Code.
68
According to the Civil Code provisions the trustee “cannot exceed” the limits of his
mandate, unless he was unable to notify the principal about that. When the trustee
acted over the limits of his mandate, he has either a contractual or a tort liability, but
this fact cannot jeopardize bona fide third parties.
28
On the other hand, during the mediation process, certain situations may affect69 the
purpose of the procedure or the neutrality and impartiality of the mediator. When these
situations occur, the mediator has the obligation to inform the parties about that and to let
them to decide whether to keep or to cancel the mediation contract. If the mediation
contract is cancelled, the mediator70 closes the procedure according to the provisions of
art.56 from Law no.192/2006 and refunds the parties based on the provisions of the
mediation contract.
The prerequisite of a good mediation is the parties’ agreement to pursue this procedure
and their will to cooperate with the mediator in order to find a solution to their conflict,
solution that meets their needs and their benefits. In order to facilitate the parties’
dialogue and to clarify the parties’ needs and expectations that determine them to
negotiate, the mediator uses different methods and techniques depending of the nature of
the conflict and of the parties’ personalities. All these methods and techniques should
serve the parties’ legitimate interests and the mediation’s objectives. Nevertheless, as we
previously mentioned, during the entire procedure, the mediator’s interventions cannot
disregard the parties’ rights and cannot impose to them solutions.
On the other hand, according to art.60-(1) and (2) from Law no.192/2006, the parties are
entitled to denounce the mediation contract at any stage of the mediation process. For
that, they just have to give a written notice to the mediator and to the other party. In this
case, the mediator should consider the unilateral denunciation of the respective party and,
within maximum 48 hours from the moment he has received the written notice, he has to
draw up the mediation procedure closing minutes. But, if one of the parties ceases71 to
come to the mediation without denouncing the “mediation contract”, the mediator has the
obligation to take all necessary measures in order to identify the real intention of the
respective party and, only then, to decide the continuation or the closing of the mediation
procedure.
According to art. 54-(1) from Law no.192/2006, the closing of the mediation procedure
occurs in one of the following cases:a) when the parties reach an agreement that settles
their conflict; b) when the mediator finds out that the mediation procedure failed;c) when
one of the parties defers the “mediation contract”. Since, the parties agreement may refer
to any aspect of their dispute, we need to take into consideration also the first thesis of
art.54-(2) from the law, which stipulates that the mediation procedure is closed when the
parties reach a partial agreement. A partial agreement means that the parties have agreed
only regarding certain aspects of their dispute and have left the others unsolved.
69
70
See art.54-(2) from Law no.192/2006 which was introduced through point 26
from Law no.370/2009 and produces effects from December 6, 2009
71
29
This is why, whenever the parties have reached only a partial agreement, or they are in
the situations provided by art.54-(1) letters b)and c), they are free to go further and to
bring their conflict in the competent court of law or to address their claims in an
arbitration court72. In all these cases, the court of law or the court of arbitration will
deliver73 a partial decision. In the judgment74 of the decision the court will take note of
the parties’ partial agreement and will continue the trial for the unsolved parts of the
claim. The expedient decision75 is final and the parties can only bring recourse against it,
not an appeal.
When, through mediation, the conflicted parties reach an agreement, the mediator or the
parties themselves will transpose it in an act under private signature, the so-called
“mediation agreement”. The “mediation agreement” includes all the clauses established
as result of the parties’ negotiation, the term76 of which the performance or the
extinguishing of the parties’ obligations depends on, or the conditions77 that may affect
the effectiveness or the termination of obligations assumed by the parties during the
negotiation.
Similar to the “mediation contract”, under the sanction of nullity, the “mediation
agreement” cannot include78 clauses that are contrary to the law or to the public order.
72
In order to use the arbitration procedure, the parties should have an arbitration
clause included in their contract (object of their dispute) or they have reached a
compromise either, during the mediation or after it
73
See art.440 and art.44 from Law no.134/2010 republished, regarding civil
procedural Code
74
The judgment is a structural component of the court decision. It contains full and
precise reproduction of the minutes drawn up in the end and read in public
deliberation during the delivery of the court’s decision. As being the most important
part of the court’s decision, the judgment comprises the solution given by the court
in resolving the dispute and it is subject to enforcement. For details see M.Tabarca -
Drept procesual civil, vol.II, Ed. Universul Juridic, 2013, p.552-561
75
The expedient decision is a procedural act through which the judicial proceedings
are ended due to the transaction reached between the parties. The law gives to the
parties the opportunity to appear in front of the judge at any time during the
process, even if they have not been cited and to request the court to take note of
their agreement. The parties’ transaction will compose the judgment of the court
decision. Thus, the expedient decision does not have the character of a substantive
judgment because basically it does not solve the dispute, but only takes notes about
the parties’ agreement. For details see M.Tabarca-Drept procesual civil, vol.II, Ed.
Universul Juridic, 2013, p.472-477; V.M.Ciobanu,G.Boroi- Drept procesual civil, Curs
selective, Teste grila, ed.a-III-a,Ed. All Back, 2005, p.326-328
76
77
Idem 73
78
30
When the mediation agreement has as object specific79 topics, such as transfer of
ownership right, transfer of other real rights or of real immovable property rights80, or
inheritance cases, it has to be verified either by the notary or by the court of law. Within
this procedure, the notary or the court has the legal obligation to verify if the “mediation
agreement” fulfils the substantive conditions or the formal requirements imposed by law.
In the verification process and by taking into account the parties will, the notary or the
court may modify81 or complete the content of the “mediation agreement”. According to
art. 58-(5) from Law no.192/200682, the verification is also imposed whenever the law
provides, under the sanction of absolute nullity, the fulfilment of certain substantive
conditions or formal requirements. We emphasize that the “mediation agreement”
authenticated by the notary has the same legal force as a writ of execution.
Finally, based on the provisions of art.58-(6) from Law no.192/200683, the notary or the
court of law have the obligation to request the registration within the Land Register of the
authentic “mediation agreement” or of the court’s decision, as applicable, whenever the
law imposes the fulfilment of certain publicity conditions.
Apart from these situations, the parties can request directly to the notary84 the
authentication of their agreement or may claim to the court to issue a decision85 having
the same subject. The competence belongs to the court in whose district is located the
79
According to art. 58-(4) from Law no.192/2006: “In the case when the mediated
conflict refers to the transfer of ownership right regarding real estates, as well as of
other real rights, division of inheritance or other inheritance cases, under the sanction
of nullity, the mediation agreement drafted by the mediator shall be submitted to a
public notary or to the court of law in order for them to verify, with the procedures
provided by the law and based on the mediation agreement, the fulfillment of the
substantive conditions or formal requirements and to issue an authentic act or a
juridical decision, as applicable, following the legal procedures.….” This paragraph
was modified through point 8 of Law no.115/2012 and produces effects from
October 1st, 2012
80
See art.58-(41) from Law no.192/2006 which was introduced through point 9 of
Law no.115/2012 and produces effects from October 1st, 2012
81
See the last thesis of art.58-(4) from Law no.192/2006
82
Art.58-(5) was introduced through point 28 from Law no.370/2009 and produces
effects from December 6, 2009
83
Art.58-(6) was introduced through point 28 from Law no.370/2009 and produces
effects from December 6, 2009
84
85
According to art.59-(2) from Law no.192/2006 corroborated with the provisions
of art.438-441 from Law no.134/2010 regarding Civil Procedural Code (as modified,
completed and republished), the court decision is debated in the Council Room and
is a writ of execution. The second paragraph of art.59 was introduces through point
3 of the UGD no.90/2012 and produces effects from December 21, 2012
31
domicile, the residence, or the headquarters of any of the parties or, respectively, the
place where the mediation agreement was concluded.
8. The mediator’s professional liability
In the field of mediator’s professional liability, the Mediation Council has the
competence to receive from any natural or legal persons the complaints regarding the
mediators’ activity, to verify them, to accurately establish the mediator’s misconduct and,
consequently, to decide his/her disciplinary liability.
The facts that are considered disciplinary offences are provided by art.38 from Law
no.192/2006. According to this legal provision, the mediator that is found guilty for
infringement of his obligations of confidentiality, impartiality and neutrality; that refuses
to respond to the requests of judicial authorities, in the cases stipulated by law; that
refuses to return the documents entrusted to him/her by the conflicted parties; that leaves
his position of third uninterested party in the case and represents or assists of one of the
parties in a judicial or arbitral procedure, when such procedure concerns the conflict /
dispute he/she is mediating; or commits other facts that negatively affect his/her
professional integrity will be sanctioned according to the seriousness of his/her facts.
Depending on the seriousness of the mediator’s misconduct, the sanctions86 can go from
written notice or pecuniary fines up to the suspension from the capacity as a mediator or
even the ceasing of the capacity as a mediator.
The legal base to apply the sanctions is the decisions of the Mediation Council. The
decisions of the Mediation Council regarding the sanctions can be challenged, in first
instance, in the administrative division of the tribunal who has the competence87
according to the domicile or the headquarters of the plaintiff or the headquarters of the
defendant. According to art.41 from Law no.192/2006, the action taken against the
Mediation Council decision regarding the sanction suspends the execution of the
challenged decision.
Nevertheless, the mediator can also be kept liable88 in accordance to the civil law
86
See art.39 from Law no.192/2006. The pecuniary fines go from 50 up to 500 lei
and the Mediation Council periodically updates them according to the inflation rate.
The suspension from the capacity as a mediator can be decided for a period of one
month up to six months.
87
See art.111 from Civil Code corroborated with the rules of alternative territorial
competence provided by the civil procedural law in force, because the Mediation
Council has the capacity of organ of public law.
88
32
provisions whenever he causes damages to the parties or third interested parties through
the infringement of his professional obligations. It has to be considered here that towards
the parties the mediator has a contractual obligation (because they have concluded a
“mediation contract”), while towards third parties he has a tort liability.
Conclusion
After analysing in some extent the provisions in force regarding the mediation procedure
in Romania, we can conclude that the legislator’s desire was to implement an alternative
dispute resolution method which, on one hand, can reduce the enormous number of cases
that the courts have to deal with daily, and on the other hand, may help the parties
involved in a conflict to settle their dispute more easily, faster and with less costs. From
these goals, we may consider that the present legal rules go further and, in the long run,
the mediation will also become a specific profession in Romania and those carrying it on
will be not only specialists in human behaviour and conflict management, but will devote
all their professional abilities and skills to this activity.
Bibliography
1. Viorel Mihai Ciobanu,Gabriel Boroi- Drept procesual civil, Curs selective,
Teste grila, ed.a-III-a,Ed. All Back, Bucuresti, 2005,
2. Claudiu Ignat, Zeno Sustac - Modalitati Alternative de Solutionare a
Conflictelor, Ed. Universitara Bucuresti, 2008
3. Claudiu Ignat, Zeno Sustac,Cristi Danilet - Ghid de Mediere ,Ed. Universitara,
Bucuresti, 2010
4. Claudiu Ignat, Zeno Sustac, Cristi Danilet – Medierea, Standarde si Proceduri ,
Ed. Universitara, 2009
5. Mihaela Tabarca-Drept procesual civil, vol.II, Ed. Universul Juridic, 2013,
6. Law no.192/2006 regarding the mediation and organization of the mediation
profession, published in the O.J no.441, First part, from May 22,2006.
7. Law no.370/2009 regarding the modification and completion of Law 192/2006,
published in OJ no. 831, First part, from December 3, 2009.
8. UGD no.13/2012, published in the OJ no.70, Part I, from January 30, 2010
9. Law no.202/2010, published in the OJ no.714, Part I, from October 26, 2010
10. Law no. 76/2012, published in the OJ no.365, Part I, from May 30, 2012
11. Law no.115/2012 regarding the modification and completion of Law
no.192/2006 regarding the mediation and organization of the mediation
profession, published in the OJ no. 462, Part I, from July 9,2012
33
12. UGD no.90/2012 regarding the modification and completion of Law
no.192/2006 regarding the mediation and organization of the mediation
profession, as well the modification of art.II from Law no.115/2012 regarding
the modification and completion of Law no.192/2006 regarding the mediation
and organization of the mediation profession, published in OJ no.878, Part I,
from December 21, 2012
13. UGD no.4/2013, regarding the application of Law no.134/2010 regarding Civil
Procedural Code as well the modification and completion of related normative
acts, published in OJ no.68, Part I, from January 31, 2013
14. UGD no.80/2013 published in OJ no.392, Part I, from June 29, 2013
15. New Civil Code
16. Law no.134/2010 regarding Civil Procedural Code
17. Law. no.135/2010 regarding the Criminal Procedural Code, published
within the O.J of Romania, First Part, no.486 from July 15, 2010
18. Code of Ethics and Deontology of mediators approved by the Mediation
Council on February 17, 2007
34

Carte - Regelemtarea Legala A Medierii in Romania Final

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Reglementarea legala a medierii in Romania

Legal framework of mediation in Romania

1. Legal framework of mediation in Romania

As an alternative dispute resolution procedure, mediation was only recently legalized in

2. Mediation - definition and its legal nature

3. The mediation’s domains of applicability

b) The condition referring to university educational studies is vague and ambiguous.

As a conclusion, it has to be noted that, according to art. 81 corroborated with art.12-(4)

5.2. The suspension of the capacity as mediator

b) on the writing request of the mediator;

The suspension of the capacity as mediator is decided or ascertained by the Mediation

5.3. The end of the capacity ad mediator

a) on the request of the mediator, by his written waiver statement;

b) in case of death;

d) as a disciplinary sanction, in accordance with the conditions provided by art.

e) in case the mediator is irrevocably convicted of a felony committed with

6. The legal forms used to perform mediation activities

6.1. Professional civil society

6.2. The individual office of mediator

6.3. Collective office of mediators

The above-mentioned rules referring to an individual office of the mediator apply, in

The foundations47 are non-governmental organizations of bigger importance, subjects of

7. The mediation procedure

8. The mediator’s professional liability

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