The Act 192/2006 implements in the Romanian judicial system a new alternative way of conflict solving and a new liberal profession of a judicial nature, that of a mediator. The Romanian public is not yet familiar with these notions but it is certain that the new profession will also compel recognition on the Romanian market, given its indisputable success in the USA and Europe. It is thus intended to replace the litigious approach with mediation, the most efficient alternative means of conflict solving, and obviously, to reduce the number of cases presented to the Instance Courts.
By law, the role of the mediator, as a mediation specialist, is well defined. He/she has the role of facilitating negotiations among conflicting parties and of supporting them in order to settle the dispute within a reasonable time frame. The solution obtained through mediation must be efficient, mutually convenient and lasting, as it is being attempted both the settlement of existing conflicts as well as the prevention of the occurance of future ones. The mediator must enjoy the parties’ confidence, those having the right of freely choosing their mediator. The principles by which the mediator guides his/ her activity are neutrality, confidentiality and impartiality. What do these principles mean, exactly? The mediator must conduct the mediation process in an unbiased manner and provide a permanent equilibrium among the parties. The mediator will not favour any of the parties in his attempt of settling the conflict and the information obtained by him/her during the mediation procedure will not be subsequently used by the mediator. He/she also has the obligation of refusing to take over a case when he/she is aware of any circumstance which might hinder his/her neutrality and impartiality or if he/she realizes that the disputed rights cannot make the object of a mediation. Last but not least, the mediator does not have the power of decision regarding the content of the settlement to be reached by the parties. Thus, the mediator cannot impose a solution but merely facilitate negotiations among parties in order to surpass disputes.
Mediation can be performed by one or several mediators, the latter being the case of the co-mediation. Usually, one resorts to co-mediation in the situation in which there are more than two parties involved or in the case in which the conflict presents an unusual complexity.
Exerting the mediation profession is compatible to any other activity or profession, except for those stipulated within special laws, mediators being able to conduct their activity within a professional civil society, an office or within a nongovernment organization. Authorized mediators can also be employed with an individual working contract. Attorneys, notaries public and judicial counsels who gain the quality of mediators may conduct their mediation activity within the forms of exerting their profession. The law establishes unequivocably the fact that the mediator’s professional premises is inviolable, thus supporting the protection of confidentiality of the mediation procedure. In the same sense, the mediator cannot represent or assist any of the parties in a judicial or arbitral procedure having as an object the conflict attempted to be solved by mediation.
Authorized mediators will be registered in the mediators’ roll, drawn up by the mediation council and published in the Romanian Official Gazette. On the roll there will also be registered the mediation fields in which those are specialized as well as the foreign language in which they are able to conduct the mediation.
The mediator is entitled to a fee established by negotiation, a fee which must be reasonable and take into account the nature and object of the conflict. The mediator’s fee will be paid equally by the parties, unless decided otherwise.
These are the main regulations of the Act 192/2006 regarding the tasks and role of the conflict solving spacialist. The mediation capacity can also be cultivated through specific and practical training but in most cases it is a native characteristic. The mediator must be a good speaker, a perfect listener and a fine psychologist. With the help of the specific techniques acquired during the training period, with much patience and dedication, with vocation and detachment, with objectivity and the ability to synthesize, with creativity and perseverance, the mediator stands all the chances of making his mark in the Romanian judicial scene which has been in serious need of a conflict settling specialist.
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