Dr. Judge Denis – Gabriela Ghervase

Craiova Court President

Taking into account that the traditional means of conflict resolution have become insufficient and difficult to overcome, by the fact that the courts are distressed by a large number of cases whose final settlement may be extended over some years and the ruling of a decision can lead in most cases, to the worsening of the conflicts between the parties and not to their reduction, it is necessary to apply concrete solutions, alternatives to justice, in order to reduce the economic and social costs involved in an ongoing process. Moreover and more than ever it is necessary to respond also to the need which demands "a different kind of justice."

A paradox of the time in which we live in, the era of unprecedented development of the most modern means of communication, it is just the lack of communication - communication is an essential element in maintaining good relations between people.

1. The procedure in the court

So, after the begging of the trial it is possible to enter into the mediation procedure. According to law, when the mediation procedure is closed, the mediator shall inform in writing the court whether or not the parties have reached an agreement following the mediation process. The information should include elements contained in the minute concluded at the end of the mediation procedure.

Thus, according to the article 63 from the law, if mediation was successful and the conflict was solved, the court will rule at the request of the parties, a consent judgment according to the provisions of the article 271 from the Code of Civil Procedure. According to these late provisions, the parties may present themselves at any time during the trial, even without having been summoned, in order to ask for the decision which will approve their agreement to be ruled. If the parties present themselves on the day fixed for trial, the application for the ruling of the decision will be received, even by a single judge, following that the decision will be ruled by the court in the session. If they present themselves another day, the court will rule the decision in the council chamber.

Where the parties are unwilling to reach a consent, the mediator can not be bind to inform the court about the parties' agreement which resulted from the mediation.

The law does not explain in which consists the approval made by the judge. We believe it has the same nature as the check-up made by the notary that includes the operations described in detail in the Law no. 136/1995. They must, among others, refer to the following aspects:

- if the agreement of the parties is referring to litigation on which the parties may conclude disposal documents: for example, the agreement of the parties should not concern a litigation already solved by a judicial decision (res judicata) or a litigation which is already subject to mediation when the mediation agreement was authenticated by Notary Public (application is not of interest) or even by the court (agreed res);

- if those who conclude the agreement are the holders of the rights in discussion: for example, if the conventional representative of one of the party complied with the limits of the power-of-attorney received or if the agreement in which a party is an under aged child was subject to approval of the guardianship supervisory agency; therefore, we believe that is imperative the presence of all parties from the mediation agreement before the judge, just as it happens at the Notary;

- if their willing was not somehow vitiated during the mediation process: for example, the error in which a party found herself, regarding the object of the agreement, or the fraud and the violence exerted on a party in order to force her to terminate the agreement;

- if the provisions regarding the legal assistance or the providing of the translator when these are mandatory, have been complied with;

- if the provisions of the agreement does not violate the mandatory rules of the law: thus, article 2, paragraph 4 of the Law no. 192/2006 expressly provides that "it does not make the object of the mediation the rights which are strictly personal, such as those concerning the status of the person and any other rights of which the parties, according to the law, can't have or by any other means permitted by law "; also the article 73 paragraph 2 of the Law 192/2006 modified by the Law no. 370/2009 provides that "The provisions of the present law shall apply also to the mediation of the rights' disputes of which the parties may have within the labor disputes„;

- if the provisions of the agreement does not violate the public order: article 58 paragraph 2 of the Law no. 192/2006 states: "The understanding of the parties should not include provisions which affect the law and the public order"; the same article 5 from the Civil Code states that "It is not possible to derogate by agreement or special provisions to the laws that concern public order and morals."

In the situation when any of these cases are given, the court will consider and solve by means of the state of exception the aspects of nullity of the agreement between the parties, under common law nullity and the legal trial will continue in a classical form. If these aspects are discovered and occur after the decision of acceptance, they can be invoked through the means of appeal extraordinary of the review.

We do not think that is necessary for the judge to check-up the quality of mediator of the third party, although the paragraph 4 of the article 12 recently introduced states that the profession of mediator shall be exercised only by the person who acquired the status of authorized mediator under the conditions of the present law authorized under this law. Nor is the task of the judge to check the legality of the mediation contract. Moreover, the annulment of this contract for the cases shown in article 45 of the law can only take place under the conditions of the common law.

Therefore, the approval given by the court is different from the court proceeding. In principle it is not required to grant trial terms, but immediately will be taken note of the mediation agreement if all the necessary documents are filed and the parties are present. Of course, nothing excludes the assignment of another day to consent the agreement that all these conditions are met. Also after the filing of the mediation agreement to the court it is not precluded his amendment, if the parties wish to amend it.

If mediation can be validated, the reasoning will be made succinctly and the focus will be on the device of the decision through which should take note of the parties' agreement that it will take exactly. It is possible that the parties' agreement to be filled at remedy at law, case in which it must be admitted, the contested decision should be dissolved/canceled and to take note of this agreement.

The judge will decide upon the request of the interested party the refund of the duty stamp paid for the investment of the court (article 63 paragraphs 2 from the law no192/1996). Also, it can be requested the recovery of the mediator's fee for the persons to whom they have been approved the application for legal public assistance in matters that are not criminal [1] if he passed through the proceeding of mediation of the litigation prior to the commencement of the trial or he requested the mediation after the beginning of the trial, but before the first day of hearing (article 20 from Government Emergency Ordinance no 51/2008).[2]