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.
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