Law and policy

Definitions

Is there any legal definition in your jurisdiction of the terms ‘ADR’, ‘conciliation’ and ‘mediation’?

According to article 1(1) of Law No. 192/2006 on the mediation and organisation of the mediator profession, ‘mediation represents a way of amicable settlement of conflicts, with the support of a third party specialised as a mediator, in terms of neutrality, impartiality, confidentiality and with the free consent of the parties’. Moreover, according to the same article, second paragraph, ‘mediation relies on the trust which the parties invest in the mediator, as a person capable to facilitate negotiations between them and to provide them with support for the settlement of the conflict, by reaching to a mutually convenient, efficient and durable solution’.

There is no definition in the Romanian jurisdiction of the terms ADR and conciliation. The common understanding for conciliation is the attempt of the parties to solve a dispute alone, without any third professional person.

Mediation models

What is the history of commercial mediation in your jurisdiction? And which mediation models are practised?

Commercial mediation is not very popular in Romania in 2019, although mediation activity started before the Mediation Law was issued by the Romanian Parliament in 2006. Both private and public sectors are still not aware of the tremendous potential of commercial mediation and are simply not using it to prevent, resolve or manage commercial disputes. The mediation model that is mainly used in Romania is facilitative, although more experienced mediators were able to develop their own style, using different techniques that are relevant for different styles.

Domestic mediation law

Are there any domestic laws specifically governing mediation and its practice?

On 22 May 2006, Law No. 192/2006 on the mediation and organisation of the mediator profession was published in the Romanian Official Journal. It is this law that brings, for the first time, clarification on the place of mediation within dispute or conflict resolution, the role and obligations of the mediator in dispute resolution, how to access mediation services and who can act as a mediator.

To transfer the provisions of Directive 2008/52/EC of the European Parliament and of the Council regarding certain issues of mediation in civil and commercial cases into Romanian law, the Parliament adopted Law No. 202/2010 on measures to accelerate settlement of lawsuits, which modified the Civil Procedural Code and the Penal Procedural Code. Mediation is now included for the first time in the two procedural codes as an alternative method of settling disputes.

After 147 years, a new Civil Procedural Code came into force in Romania on 1 October 2011 and a new Civil Procedural Code on 15 February 2013. Both have included specific provisions on mediation and other ADR methods.

Neither the codes nor Law No. 192/2006 concerning mediation and organisation of a mediator’s profession include reference to cross-border mediation. All the legal provisions in this matter are applicable for both domestic and foreign mediation.

The Mediation Law stipulates, among other things, that a mediator has the following obligations:

  • to deliver any explanations to the parties related to the mediation process, so that the parties clearly understand the purpose, limits and effects of mediation;
  • to ensure that mediation is achieved in full respect of the freedom, dignity and private lives of the parties;
  • to conduct the mediation process impartially and ensure a constant balance among the parties; and
  • to refuse to take over a case, if he or she is aware of any circumstance that might prevent him or her from being impartial and neutral, as well as if he or she finds that the rights concerned cannot be subject to mediation, in accordance with article 2.

The mediator is also bound to keep confidentiality over the information obtained throughout the mediation process, to observe the deontological norms and to respond to the requests from the judicial authorities, in accordance with the provisions of article 32 of the Romanian Mediation Law and to constantly improve his or her knowledge and mediation skills by attending in-service or continuous training courses, under the conditions and requirements as defined by the Mediation Council.

Singapore Convention

Is your state expected to sign and ratify the UN Convention on International Settlement Agreements Resulting from Mediation when it comes into force?

Romania is likely to sign and ratify the UN Convention on International Settlement Agreements Resulting from Mediation when it comes into force.

Incentives to mediate

To what extent, and how, is mediation encouraged in your jurisdiction?

According to the Mediation Law, the judicial and arbitration bodies, as well as other authorities with jurisdictional powers should inform the parties of the possibility and about the advantages of using the mediation procedure and should advise them to resort to this recourse to settle conflicts between them.

To conduct the mediation procedure, the examination of civil cases by the law courts or by the arbitration courts shall be suspended at the request of the parties, under the terms provided in the Civil Procedural Code. The limitation period shall be suspended during the mediation, but no more than three months from the date of signing the mediation contract. The request for inclusion in the court’s list of cases shall be exempt from judicial stamp duty. If the matter has been settled by means of mediation, the court shall deliver, at the request of the parties and in compliance with the requirements of law, a judgment. At the same time as the ruling, the court shall, at the request of the party, refund the judicial stamp duty, paid for investing such court, except for cases where the conflict settled by mediation is related to a transfer of ownership, the establishment of another right in rem on immovable property, partition and inheritance cases.

Sanctions for failure to mediate

Are there any sanctions if a party to a dispute proposes mediation and the other ignores the proposal, refuses to mediate or frustrates the mediation process?

There aren’t any sanctions if a party to a dispute proposes mediation and the other ignores the proposal, refuses to mediate or frustrates the mediation process. The parties, legal or natural entities, can voluntarily resort to mediation, including after a trial has been initiated in front of competent courts of instance, by mutually agreeing to settle by mediation a conflict or a dispute. In any convention regarding the rights that the parties have, they may include a mediation clause whose validity shall be independent from the validity of the contract in which it is included.

Romanian law does not have any provisions for mandatory mediation as a pretrial or during the trial condition.

According to article 227, paragraphs 2 and 3 of the new Romanian Civil Procedural Code, the judge can invite the parties to participate in an information session on the advantages of using this procedure. The session is free of charge. When he or she considers it necessary, taking into account the circumstances of the case, the judge will recommend the parties to resort to mediation, with a view to settling the litigation amiably at any phase of the trial. It must be noted that mediation is not compulsory for the parties.

Still, according to article 108, point, 1 letter f of the Civil Procedural Code, if a party refuses to attend the information session with a mediator regarding mediation advantages, after she or he agreed it, pursuant to the law, the party can be ordered to pay a penalty of between 50 and 700 lei.

In July 2013, according to new developments of the legislation in the mediation field (Law No. 115/2012), the claimant was required to prove that, before going to court, he or she has attended an information session with a mediator regarding mediation advantages. The requirement applied to a number of fields of law such as family, commercial, civil and, to a limited extent, criminal cases. The evidence of attending such a session was to be made in the form of a certificate issued by the mediator who provided the information session. A piece of legislation (Government Emergency Ordinance No. 90/2012), which took effect from August 2013, created the sanction of case inadmissibility if the claimant failed to participate in the information sessions regarding mediation benefits. According to the Decision No. 266 of 7 May 2014, the Romanian Constitutional Court found that both the claimant’s obligation to attend the information session regarding mediation benefits and the sanction of case inadmissibility are not constitutional.

From the Court’s decision:

mandatory participation in learning about the advantages of mediation is a limited access to justice because it is a filter for the exercise of this constitutional right, and through the application of legal proceedings’ inadmissibility, this right is not just restricted, but even prohibited.

23. Since there may be situations where natural or legal persons want to resolve their conflict exclusively in the court, the Court notes that the legal regulation criticised did not allow them to assess for themselves whether or not they need this information. Free access to justice is the faculty of the individual to apply to a court to defend their rights or legitimate interests capitalisation. Any limitation of this right, however small it is, must be duly justified, analysing to what extent the disadvantages due to it do not somehow outweigh the possible benefits. Both the Constitutional Court and the European Court of Human Rights state that ‘mere legal consecration, even at the highest, constitutional level, is not likely to ensure its real effectiveness, as long as, in practice, the exercise of this right faces obstacles. Access to justice must be ensured, therefore, effectively and efficiently.

24. Accordingly, the Court considers that the preliminary mandatory procedure of information on the advantages of mediation appears to be a disincentive to obtaining citizens’ rights in the courts of law. Furthermore, a procedure consisting in information on the existence of a law appears, undoubtedly, as a violation of the right of access to justice, which puts undue burden on litigants, especially since the procedure is limited to a duty to inform, and no actual attempt to resolve the conflict through mediation, so the parties briefing before the mediator has a formal character.

25. In the context of that retained above, the Court finds that the obligation imposed on the parties, natural or legal persons, to participate in the briefing on the advantages of mediation, otherwise inadmissible, the application for summons is an unconstitutional measure, contrary to article 21 of the Constitution.

Unfortunately, following the Constitutional Court’s decision, mediation activity almost disappeared in Romania, proving that unsustainable policies that are not fully discussed with stakeholders can actually determine regress and downturn - effects that are opposite to the ones foreseen.

In our legislation there is only one provision that can be considered as being a penalty, respectively article 16, section 2 of Government Emergency Ordinance No. 51/2008 regarding judiciary public health in civil matters, according to which the judge can reject the application for a judiciary public health award if it is proved that the applicant had refused, prior to the trial beginning, to follow mediation procedure or an alternative method of case settlement.

In the same Government Emergency Ordinance No. 51/2008 we also find stimulating provisions, respectively those included in article 20 regarding the possibility to reimburse the amount paid as mediator’s fee, if prior to going to law, mediation had been used, but it did not end in a settlement, similar to the case when mediation was used after having gone to court, but prior to the first day of hearing.

Prevalence of mediation

How common is commercial mediation compared with litigation?

Commercial mediation is not very popular or common compared to litigation. While this conclusion is personal to the authors, there aren’t official statistics to back up views related to the level of practice of commercial mediation in Romania.

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.

Procedure

Counsel and witnesses

Are the parties typically represented by lawyers in commercial mediation? Are fact- and expert witnesses commonly used?

Parties have the right to be assisted by a lawyer or other persons, under mutually agreed conditions (article 52(1) of the Mediation Law).

The entire support provided during the mediation to the parties under conflict or dispute, by other persons who participate in the mediation procedure shall have a confidential character to third parties and shall not be used as evidence for judicial and arbitral procedures, except in the case where the parties agree otherwise or the law states the contrary. Therefore, the party representatives can be asked by the mediator to sign a confidentiality agreement.

Where the subject of the mediation presents difficult or controversial legal or juridical aspects, or aspects related to any other specialised fields, the mediator may, based on the consent of the involved parties, ask for the opinion of an external specialist in the respective field. When asking for the standpoint of an external specialist, the mediator shall present only the controversial issues, without revealing the identity of the parties (article 55 of the Mediation Law).

There are no legal provisions or information from mediation practice regarding the participation of other persons in mediation as witnesses, but they are more likely to play the role of catalyst should they assume a constructive role.

Procedural rules

Are there rules governing the mediation procedure? If not, what is the typical procedure before and during the hearing?

According to the Mediation Law, each mediator has the right to use his or her own model to organise the mediation procedure, by observing the dispositions and principles stated in the law (self-determination, neutrality, impartiality, confidentiality and informed consent).

Therefore, pending mediators’ styles and level of process influence, the parties may be encouraged to prepare case summaries or meet with the mediator in advance for preparation purposes. Parties may also meet with their advisers to prepare for the mediation meetings.

Also, there is a certain level of legal procedural requirement for invitations sent to the parties, documents for signing (eg, mediation agreement) and special provisions for court-related cases or juridical areas (eg, family or penal).

Parties can request joint or separate mediation services from a mediator. Where only one party submits a 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.

In Romania, holding mediation sessions before signing a mediation agreement or contract is forbidden.

According to the mediation training standard applicable to all mediation training providers and courses, the minimum stages of the mediation process are as follows:

  • consent or agreement to mediate and preparation of the mediation session;
  • introduction of the mediation process and definition of its rules;
  • identification of problems;
  • exploration of interests and problems;
  • generating options;
  • conclusion of the agreement; and
  • closing the mediation session.

Setting out mediation ground rules is common practice between Romanian mediators. If the parties reach an agreement, according to the law they can decide whether they want it written up, except for certain types of cases where it is required (eg, property cases).

In cases when the subject of the mediation presents difficulties or controversial legal or juridical aspects or aspects related to any other specialised fields, the mediator may, based on the consent of the parties involved, ask for the opinion of an external specialist in the respective field.

There are no special considerations for international mediation proceedings.

Tolling effect on limitation periods

Does commencement of mediation interrupt the limitation period for a court or arbitration claim?

As a rule, prescription does not begin to flow, and, if it began to flow, it would be suspended. According to article 2532, point 6 of the Civil Code, the limitation period is suspended if the negotiations between the parties are held no earlier than six months before expiry of the limitation period.

According to point 7 of the same article, if the negotiations are held according to a contractual clause or within a preliminary legal procedure, the process is suspended for a maximum of three months.

If parties only attend an information session on the mediation procedure and its advantages without starting a mediation procedure this does not suspend the limitation period for a court claim.

Enforceability of mediation clauses

Is a dispute resolution clause providing for mediation enforceable? What is the legal basis for enforceability?

Until now, it has not been the norm to insert a mediation clause in a contract and there are no special requirements for such clauses. If a mediation clause is included in a contract and the parties ignore it, the judge cannot refuse to hear the case for that reason. According to the Romanian Mediation Law, ‘in any convention relative to the rights that the parties may enjoy, they may bring a mediation clause, whose validity shall be independent from the validity of the contract to which they are parties’. Thus, there are no court decisions referring to escalation clauses.

However, mediation providers have started to put forward their own mediation clauses (www.mediere.ro/en/clauza-de-mediere.html):

Except as otherwise provided in this contract, any civil action concerning any dispute, controversy or claim arising from or in connection with this contract, including the interpretation or conclusion, shall not be initiated before being referred to mediation to the Craiova Mediation Centre Association (CMC) in accordance with the mediation rules of CMC.

Confidentiality of proceedings

Are mediation proceedings strictly private and confidential?

Professional secrecy is recognised equally as being both a right and a primary and fundamental duty of the mediator.

According to the law, the mediator cannot act as a witness in a hearing concerning the facts or documents he or she is aware of from the mediation procedure. All the information provided and obtained during the mediation procedure by the parties in dispute shall have a confidential character to third parties and cannot be used as evidence for judicial and arbitral procedures, except when the parties agree otherwise or the law states the contrary.

The mediator cannot be heard as a witness related to his or her deeds or to the instruments that he or she took note of within the mediation procedure. In criminal cases, the mediator can be heard as a witness only if he or she has the prior, express and written agreement of the parties and, if applicable, of the other interested parties. A witness’ capacity is primary as compared with that of a mediator, with regard to the facts and circumstances that he or she knew before becoming a mediator in that particular case. In all cases, after being heard as a witness, a mediator can no longer perform mthe ediation process in that particular case.

One of the exceptions from the mediator’s obligation to keep confidentiality is provided for in the Mediation Law, in particular in the section about family cases where it is provided that, if during mediation, the mediator notes any facts that jeopardise the normal growth or development of a child or severely affect his or her best interests, he or she shall be bound to notify the relevant authority. The obligation to keep confidential any information taken down during the mediation and the documents drafted during mediation even after the mediator retires is also stipulated in Law No. 192/2006 (article 32), as well as in a mediator’s code of ethics and professional deontology. From a disciplinary point of view, the mediator can be held liable if he or she breaks these rules.

When the mediation procedure is closed for a case that is also pending in a court of law, the mediator is bound in any case to deliver to the judge the original and electronic form of the mediation agreement and the signed statement of mediation closure if the parties reached an agreement, or only the signed statement of mediation closure if the mediation closed before settlement or without any settlement.

All support provided during the mediation by the parties, by the lawyers or by other persons who may attend the mediation under parties’ mutually agreed conditions, including translators or external specialists, shall have a confidential character for third parties and shall not be used as evidence for judicial and arbitral procedures, except when the parties agree otherwise or the law states the contrary. The mediator shall draw the attention of the persons participating in mediation to their obligation to keep total confidentiality and, for this purpose, he or she may require them to sign a confidentiality agreement.

Success rate

What is the likelihood of a commercial mediation being successful?

Since no statistics are available, any view or comment regarding the likelihood of a commercial mediation being successful in Romania is anecdotal. However, success rates above 50 per cent have been reported unofficially by individual providers.

Settlement agreements

Formalities

Must a settlement agreement be in writing to be enforceable? Are there other formalities?

When the parties to the conflict have come to an understanding, a written agreement may be drawn up, which shall include all the clauses on which they have agreed and that is as valid as a document under private signature. Typically, the agreement shall be drafted by the mediator, unless the parties and the mediator agree otherwise.

Challenging settlements

In what circumstances can the mediation settlement agreement be challenged in court? Can the mediator be called to give evidence regarding the mediation or the alleged settlement?

Being a written document under private signature, parties can challenge the agreement in any circumstance.

If parties choose to make the agreement enforceable through a notary or in court, they may only ask for the agreement to be rendered null if, at the time the parties reached agreement they infringed any mandatory provisions of law, they did not have the full capacity to close an agreement or their consent was invalid.

Enforceability of settlements

Are there rules regarding enforcement of mediation settlement agreements? And on what basis is the mediation settlement agreement enforceable?

The agreement has the power of a written document under private signature. Therefore, it has the legal value of a contract between the parties.

The parties’ agreement can be submitted for notarisation by a public notary (and at the same time awarded mandatory title to the mediation agreement) or, if applicable, to approval by the court of law, and it will award mandatory title to the mediation agreement.

Moreover, notarisation of the mediation agreement by a notary public or going to a court of law is required in certain situations (transfer of the private property rights regarding immovable goods or, whenever the law requires, under the nullity penalty, the fulfilment of substance and form requirements).

The parties can revise the final settlement agreement before the mediator by concluding another agreement from their own motion or at the request of the court.

As of 2012 when the Mediation Law was changed, the judge or the public notary can modify the agreement, if the parties agree, to fulfil the condition of substance or form requested by law.

Stays in favour of mediation

Duty to stay proceedings

Must courts stay their proceedings in favour of mediation?

Yes, the parties to the mediation agreement may go to court to request, in compliance with the legal proceedings, to give a decision to legalise their understanding. Competence shall lie with the court in whose jurisdiction any of the parties have their domicile or residence or, where appropriate, the head office or the court of first instance in the jurisdiction where the mediation agreement is signed. The decision whereby the court consents to the understanding between parties shall be delivered in the Council Hall (which makes the process more efficient) and will be an enforcement order under the law.

Miscellaneous

Other distinctive features

Are there any distinctive features of commercial mediation in your jurisdiction not covered above?

Although it is not a distinctive feature or form of commercial mediation, one example that is worth mentioning is the Alternative Banking Dispute Resolution Center that offers non-binding expert determination and arbitration. The centre was established by the association of banks to respond to disputes specific to this field of industry, and according to its website (https://csalb.ro/en/procedures/), it manages the infrastructure needed for ADR through two types of procedures:

  • the ADR procedure concluded with proposing a solution (conciliation procedure): the procedure is finalised after the parties have accepted the resolution proposed by the conciliator through the Solving Note. The deadline for parties to accept or deny the solution is 15 days after receiving the proposal. The parties may withdraw from the proceedings at any time; and
  • the ADR procedure concluded with imposing a solution (arbitration procedure): the procedure is finalised with imposing a solution that is mandatory for both sides. The procedure is similar to that of the judgment courts, but with shorter terms, within a maximum of 90 calendar days, and can be agreed upon. The parties cannot withdraw from the proceedings.

Conciliators or arbitrators appointed to resolve disputes propose or impose a solution, depending on the procedure chosen, following analysis of the documents and discussions with the parties.

These procedures are optional, voluntary, separated from court proceedings and free of charge for the consumer.

Update and trends

Opportunities and challenges

What are the key opportunities, challenges and developments which you anticipate relating to mediation in your jurisdiction?

Opportunities and challenges 25 What are the key opportunities, challenges and developments which you anticipate relating to mediation in your jurisdiction?

Five years after the Constitutional Court Decision No. 266/2014 that established the inadmissibility sanction for not attending a mandatory information session regarding mediation benefits, the Romanian mediation field is almost depleted. The civil, family, commercial and penal fields offer limited practice opportunities. Minor developments are foreseen in the banking, consumer and insurance fields, although some of them foresee a hybrid process (ie, mediation and expert determination). Public and private sectors are still reluctant to budget resources and invest in mediation services. In the meantime, the mediators have no or very limited practice opportunities and need to focus on other fields of professional practice.

However, on 24 April 2019, the Romanian Parliament adopted a modification to the Mediation Law, putting it in agreement (finally, after five years) with the Constitutional Court Decision 266/2014, and offering some concrete incentives for the use of mediation services, such as refunds of stamp taxes or enforceable settlement agreements when the parties’ lawyers check the legality and sign the agreements.