Mediators

Accreditation

Is there a professional body for mediators, and is it necessary to be accredited to describe oneself as a ‘mediator’? What are the key requirements to gain accreditation? Is continuing professional development compulsory, and what requirements are laid down?

The professional body for mediators in Romania brings together 10,666 mediators accredited by the Romanian Mediation Council. Of all the mediators accredited, 4,641 are authorised to practise, according to the website of the Romanian Mediation Council (www.cmediere.ro/mediatori/) accessed on 24 April 2019, while the rest have suspended their mediation activity, mostly because of limited opportunities for practice.

The mediator profession in Romania can be practised only by individuals who have acquired the capacity of authorised mediator, under the national accreditation scheme and in compliance with the provisions in the Romanian Mediation Law.

A mediator can be any individual who meets the following requirements:

  • is fully qualified to practise;
  • has a university education;
  • has at least three years’ work experience;
  • is medically able to perform this activity;
  • has a good reputation and has not been convicted of an intended offence likely to affect the reputation of the mediator profession;
  • has graduated in mediator training courses or a relevant master’s degree level post-university programme, accredited in accordance with the law and approved by the Mediation Council; and
  • has been authorised as a mediator, under the conditions stated in the Mediation Law.

Romanian Mediation Law, under article 8, regulates all the conditions for foreign mediators interested in working permanently or occasionally in Romania according to which citizens of EU member states, of the EEC or of the Swiss Confederation who are holders of a document certifying their capacity and qualification as a mediator (obtained in any of the above states), shall - under the right to residence context - have access to this profession in Romania, after such qualification documents shall be acknowledged by the Mediation Council, in accordance with Law No. 200/2004 on the acknowledgement of professional diplomas and qualifications for the professions regulated in Romania, as later modified and supplemented. Mediator qualification documents obtained in any other state other than Romania, of the EU, the EEC or Swiss Confederation by the citizens listed above shall be acknowledged in accordance with the provisions under article 8, paragraph 5, applicable accordingly. If the abilities and knowledge do not meet the qualification requirements as stated in Romanian laws, the Mediation Council shall consider the professional experience of the applicant and can ask the applicant to demonstrate that he or she meets all such professional requirements. According to article 8, paragraph 5, the citizen of a third country, who graduates in mediator training courses abroad or who acquired mediator capacity abroad and wishes to permanently perform mediation activity in Romania, shall get access to this profession provided that he or she presents the education titles, accompanied by the validation certificate issued by the Ministry of Education and Research and he or she presents the contents of the completed training curriculum, including the duration of training, and, as the case may be, the documents demonstrating his or her acquired capacity as a mediator.

The Mediation Council shall evaluate the contents of the presented training curriculum, including the duration of training, comparing the knowledge and abilities certified by such documents in accordance with Romanian legislation and shall decide, if the case requires, the necessary access to this profession. The validation or compensation requirements of the applicant qualification if his or her certified knowledge and abilities do not correspond to the qualification requirements as stated in the Romanian legislation, shall be defined based on the regulations stated under article 17, paragraph 2. Moreover, the foreign citizen mediator may perform mediation activity in Romania occasionally, under the form of a service providing activity, based on a document certifying that he or she legally performs this profession in the country from which he or she originates, thus being exempted from the authorisation and listing on requirements, as stated in the laws. Nevertheless, in such a case, the person concerned must notify the Mediation Council in writing about carrying out this activity in Romania.

Romanian mediators are required to undertake 20 hours of continuous professional development every year.

Liability

What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?

The disciplinary liability of Romanian mediators are engaged for the following forms of misconduct:

  • breach of the obligation of confidentiality, impartiality and neutrality;
  • refusal to provide answers to requests made by the judicial authorities, in the cases stipulated by law;
  • refusing to return the documents entrusted to the parties in conflict;
  • representing or assisting one of the parties in judicial proceedings or arbitration proceedings having as their object the conflict under mediation; and
  • committing any other acts that affect professional integrity.

The Romanian Mediation Council approved the Code of Ethics for Romanian Mediators and managed the handling procedure of complaints from mediation users.

Romanian mediators are not required to have professional liability insurance, although this service is provided by the insurance companies, as well as being accessed by some mediators.

Mediation agreements

Is it required, or customary, for a written mediation agreement to be entered into by the parties and the mediator? What would be the main terms?

The agreement to mediate is called the ‘mediation contract’ under Romanian Mediation Law. Holding mediation sessions before signing a mediation contract is forbidden. The mediation contract must be concluded between the mediator and the parties under conflict or dispute.

According to article 45 of the Romanian Mediation Law, the mediation contract should include, under the sanction of nullity, the following clauses:

  • the identity of the parties under the conflict or dispute or of their representatives, as the case may be;
  • a description of the type or subject of the conflict or dispute;
  • a statement of the parties showing that the parties have been informed by the mediator about mediation, its effects and applicable rules;
  • the obligation of the mediator to retain confidentiality and the decision of the parties to retain confidentiality, depending on the case;
  • the commitment of the parties under conflict or dispute to observe the rules applicable to mediation;
  • the obligation of the parties under conflict or dispute to pay the due fee to the mediator and the expenses made by the same during mediation for the interest of the parties, as well as the down payment and payment modalities of such amounts, including a situation when the mediation procedure is waived or fails, as well as the share to be borne by each party, considering - depending on the case - the social situation of the parties. Unless otherwise agreed, the amounts shall be borne by the parties in equal amounts;
  • the agreement of the parties regarding the language in which mediation is to be performed;
  • the number of copies in which the agreement is to be prepared, if the agreement shall be in written form, and depending on the number of the signing parties of the mediation contract; and
  • the obligation of the parties to sign the minutes prepared by the mediator, regardless of the outcome of the mediation.

The mediation contract must be concluded in writing, under the sanction of absolute nullity.

Appointment

How are mediators appointed?

Parties are free to choose their own mediators. Where only one party submits the request for mediation, the mediator shall send a written invitation to the other party to accept mediation, indicating a maximum 15-day period to respond. The invitation is sent using any delivery means likely to confirm receipt of the text. The applicant shall provide the mediator with all the necessary information to contact the other party.

If one of the parties is unable to meet the mediator when invited, the mediator, at the request of the other party, can decide on a new date and notify the other party of the change. If the mediation is accepted, the parties in conflict or dispute will sign an agreement with the mediator.

If one of the parties gives explicit written refusal for mediation, does not respond to the invitation or fails to meet with the mediator twice in a row at the stated deadlines for signing the mediation contract, then mediation can be considered as not accepted.

Holding mediation sessions before signing a mediation agreement (or mediation contract) is forbidden.

Conflicts of interest

Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?

If a mediator is aware of any circumstance that might prevent him or her from being impartial and neutral, he or she has an obligation to refuse the case. The mediator must immediately inform the parties of any conflict of interest that occurred before or after his or her appointment, such as prior advice to one party in the same or other matters, membership of a law firm advising a party in the same matter, or a personal relationship.

If, during mediation, a situation likely to affect its purpose or the neutrality and impartiality of the mediator arises, he or she shall be required to notify the parties of it, who will then decide whether to continue or terminate the mediation contract. The mediator shall have the right to end the mediation procedure, acting according to the relevant provisions of the mediation law. In this case, the mediator is required to return part of the fee under the terms established in the mediation contract.

Parties are free to choose a mediator from the official panel of accredited mediators delivered by the Mediation Council, without any stipulation. This panel is available in the courts and on the Mediation Council’s website, which is also responsible for publishing the panel in the Official Journal twice a year.

The courts and the judge are not allowed to assist parties in the appointment of a mediator and it is not common to seek assistance from institutions or other official bodies.

Fees

Are mediators’ fees regulated, or are they negotiable? What is the usual range of fees?

The mediator has the right to receive a fee, decided by negotiation with the parties, as well as reimbursement of the expenses from the mediation process. The fee should be a reasonable amount and should consider the nature and the subject of the dispute. Unless otherwise agreed, the mediation fees are borne by the parties in equal share.

The mediation contract represents an executor title as concerns the obligations of the parties to pay the due fee to the mediator by the due dates.

Since mediation is a private service, there are no official fee scales that must be used by the mediator and the parties; each service provider is free to decide on the fee by using fee scales or by individual determination for each case.

According to Legal Aid Act No. 51/2008, if a party refuses to try mediation or another form of ADR, if applicable, an application for legal aid may be denied. Also, according to the same Act, parties that cannot afford to pay a mediator can receive financial support for mediation.