ProcedureCounsel 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):
Confidentiality of proceedings
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.
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.