Lecturer drd. Gheorghe DRAGOMIROIU

The scope of mediation is largely because it represents a potential mean to resolve disputes arising out of law breaches.

Mediation is possible in the matter of legal procedures in certain circumstances, as well as in administrative matters of legal disputes between consumers and suppliers in cases of insolvency, in the contractual divergence situation, unlawful practices, competition law etc. The mediation limitations consists primarily by the law enforcement and public order.

The directive 2008/52/EC stipulates in article 3 that “the process of mediation is a structured process, however it is named or referred to it, where two or more sides in a case try on its own initiative to reach an agreement regarding the settlement of their dispute with the assistance of a mediator.”

The Românian legislation and the Community rules establish the scope of expressly exempted areas,the sides freedom being the main principle , the mandatory dispositions being the exception. From the contents of the Law 192/2006 result that mediation is exercisable in all areas with the condition that the rights which make the subject of mediation could be used by the sides of the mediation. The mediation theory discuse about the extrajudicial mediation and judicial mediation settlement.

It is considered extra-judicial mediation when it’s characterized by the absence of any link with the judicial system and the resulting solution is not subject of judicial control organ.

Judicial mediation involves a regulatory framework and it’s under judicial control.

According to Românian legislation based of the conflict level before it’s reached to mediation process can be accomplish in two stages: the conflict has been advanced to court or the conflict hasn’t reached to the court and regarding the nature we can have: civil conflicts, commercial conflicts, family conflicts, legal conflicts and labor conflicts. The sides can approach mediation voluntarily before or after the beginning of the a process, at the request of a side , at the request of several sides or upon the recommendation of the judicial , arbitration organs or other law enforcement authorities.

The Law 192/2006 in art.67-70 provides special dispositions for the mediation process regarding the criminal cases which involve crimes for which according the law the withdraw complaint or sides reconciliation abolish the criminal liability.

The basic conditions consist that the sides involved in the conflict could not be constrained and they should have legal assistance rights warranty of an interpreter when is necessary. The sides can expressly quit this, the statement being written down in the final report. For minors is mandatory in the case of mediation the guarantee assurance provided by the procedural criminal law.

The crimes from the Criminal Code which can be subject of the mediation process are: striking or other violent actions art. 180; assault and battery art.181, assault and battery by fault art.184 paragraph 1 and 3; domicile violation art.192 paragraph 1; threat art 193; secret correspondence violation art.195, the disclosure of professional secret art.196; the rape art.197 paragraph 1, the seduction art.199, the insult 205, the defamation art. 206; the theft between spouses or close relatives art.210; the trust abuse art.213; fraudulent management art 214, paragraph 1; the destruction art.217 paragraph 1., the possession disorder article 220, family abandonment art.305, minor custody measures defiance art.307, use of home defiance art.320

For a correct understanding of the law rules application in the mediation procedure it must be understood from the beginning the clear distinction between the previous complaint and the complaint. While the previous complaint notice is a condition for the guilty side prosecution for the committed crime, the complaint is only a notice about the committed crime whose harmed side was him or another person for whom he can make a complaint.

The first complaint is indivisible to the effects it produces and it is personal and it can’t be introduce by other persons but the victim. So only the victim has the right to withdraw the previous complaint.

Cumpara Revista Medierea Nr 3-4/2010