WHAT PEOPLE KNOW

ABOUT MEDIATION?

By

POP CATALIN

MARIAN

THEORY AND

PRACTICE OF SOCIAL

RESEARCH

1

TABLE OF CONTENTS

1. RESEARCH INQUIERIES...2

1.1 THEME AND DEFINITIONS ............................................................... 2

1.2 RELEVANCE OF THE SUBJECT ................................................................... 2

1.2 RESEARCH TYPE ...................................................................................... 2

2. LITERATURE REVIEW...3

3. HYPOTHESIS, QUESTIONS AND OBJECTIVES3

3.1 HYPOTHESIS ......................................................................................... 3

3.2 QUESTIONS .............................................................................................. 4

3.3 OBJECTIVES .............................................................................................. 4

4. DATA ANALYSIS AND INTERPRETATION..5

4.1 QUANTITATIVE DATA INTERPRETATED ..................................... 5

4.2 QUALITATIVE DATA ...17

4.2.1 MEDIATOR INTERVIEW 1 (DIVORCE MEDIATOR) ................................. 17

4.2.2 DIALOG INTRE VICEPRESEDINTELE CONSILIULUI DE MEDIERE ZENO

SUSTAC SI JUDECATORUL CSM CRISTI DANILET.21

4.2.3 INTERVIU REALIZAT DE REVISTA MEDIERII FOSTEI PRESEDINTE AL

CONSILIULUI DE MEDIERE ANCA CIUCA ....................................................... 23

4.2.4MEDIEREA IN CAZURILE PENALE (CRIMINAL CASES)........................ 24

5. CONCLUSIONS..26

6. BIBLIOGRAPHY.27

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1. RESEARCH INQUIERIES

1.1 THEME AND DEFINITIONS

Peoples perception regarding the institution of Mediation, and its utility

when it comes to solving conflicts.

Mediation: A settlement of a dispute or controversy by setting up an

independent person between two contending parties in order to aid them in the

settlement of their disagreement.

Mediator: The individual who intervenes in order to help the other parties

settle their dispute.1

The research theme tries to find out the degree of knowledge about

mediation in Romania, and whether people would use this procedure to settle their

disputes, or they prefer to sue themselves. This project contains interviews with

important figures in mediation, judges, lawyers, and ordinary people with no

juridical background.

1.2 RELEVANCE OF THE SUBJECT

The current theme is important due to the fact that mediation is a quite new

procedure in Romania. The bases were put in 2006, when the first law of mediation

was proclaimed. Since mediation is one of the fastest and cheapest ways to resolute

a dispute between sides, it is important to see what people actually know about this

procedure, and how many of them have actually been in a real mediation.

1.2 RESEARCH TYPE

This project is analyzing data quantitatively and qualitatively. The

quantitatively data will be gathered from questionnaires and the qualitatively from

interviews, web pages and media articles.

1 http://legal-dictionary.thefreedictionary.com/mediation

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2. LITERATURE REVIEW

What is Mediation?

While, there is no universally agreed definition or general theory of

mediation (Bellman, 1998) argues that mediation is:

the intervention in a negotiation or a conflict of an acceptable third party

who has limited or no authoritative decision-making power, who assists the

involved parties to voluntarily reach a mutually acceptable settlement of the

issues in dispute.

Sources consulted were TV talk shows, websites, blogs, media articles,

journals and interviews. I did not manage to find any similar study done in

Romania.

3. HYPOTHESIS, QUESTIONS AND OBJECTIVES

3.1 HYPOTHESIS

1. Most people would try to resolute their conflicts in a peaceful way, and if

they cant they would most probably sue one another, or would go to a

lawyer to ask for advices;

2. Only a few people know about Mediation, and less people are willing to

contact a mediator when a dispute appears;

3. People will most likely resort to a mediator if they have a civil conflict, and

very few people would contact a mediator if they have a criminal dispute;

4

4. Most of the people believe that mediation is not a viable alternative dispute

resolution method for Romania;

3.2 QUESTIONS

1. What is most likely to proceed in case of a conflict with your involvement?

2. Do you know what mediation is?

3. Would you be willing to use the services of a mediator in case of a civil

conflict between you and another person?

4. Would you be willing to use the services of a mediator in case of a criminal

conflict between you and another person?

5. What would you do if a conflict would outbreak between you and a work

colleague? ( a type of conflict that cannot be settled in court)

6. In what stage of the conflict you are willing to seek mediation?

7. What is the reason for which you would not be willing to call a mediator to

resolve a conflict?

8. If you were physically or verbally abused by another person, then that person

will convene mediation, what would you do?

9. If you would be in a situation when wanting to sue someone and as a prior

procedure you should go to mediation how would you act?

10. If you borrow a sum of money from one person and then you would be

unable to restore it, and that person threatens to sue you what would you do?

11. Do you think that mediation is a viable method to resolute conflicts in

Romania?

3.3 OBJECTIVES

The paper has 5 main objectives:

1. To see if people have any knowledge about the institution of mediation;

2. To see the most common method picked by people in order to resolute their

disputes;

3. To find out if people are willing to resort to mediation in civil and criminal

conflicts;

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4. To find out what people would do if their conflict cannot be settled in a

court;

5. To find out if people believe that mediation is viable ADR (Alternative

dispute resolution) method for Romania;

4. DATA ANALYSIS AND INTERPRETATION

4.1QUANTITATIVE DATA CHARTS AND TABLES INTEPRETATED

For this research 65 people answered to questionnaires, and also five

interviews were attached.

As we can see from the chart above most of the people questioned 54 % are

from the range between 16-25 years old, followed by the group of people between

25-50, with 26 %, and the last group between 50-70 with 20 %. People under 16

were not questioned because they are irrelevant for this study.

In terms of education, were questioned people with all lelvels of education,

except those with no studies which I could not find.

0%

54% 26%

20%

0% 1. Age Under 16 Between 16-25

Between 25-50

Between 50-70

More than 70

12%

21%

28%

28%

11%

2. Education

secondary education

specialized secondary

superioare incomplete

incomplete higher education

postgraduate

6

33%

52%

6% 6% 3%

3. Ocupation Ocupationschoolgirl/schoolboystudentemployeeunemployedretiredbusiness owner

7

As we can see from the chart above most people (41 from a total of 65)

believe that they can solve their conflicts in a peaceful way, without implicating

other persons or institutions, 3 persons would go directly to court and sue the

person they are in conflict with, 7 of them will contact a lawyer, police or a

prosecutor, none will ask for advice from a jurist, 10 persons will seek advice from

family, friends or work colleagues, and 4 people said that it depends on the type of

conflict.

0

5

10

15

20

25

30

35

40

45

I will try

to resolve

the

conflict

peacefully

I will go to

court

I will

contact a

lawyer,

police or a

prosecutor

I will seek

advice

from a

jurist

I will seek

advice

from

family,

friends or

work

colleague

It

depends

on the

type of

conflict

Series1 41 3 7 0 10 4

4. What is most likely to proceed in case of a conflict with your

involvement?

8

Most of the persons questioned (33 out of 65) know partially about

mediation, probably heard a few things from the press or read about it on the

internet. 18 persons dont know anything about mediation. 14 persons believe that

they know what mediation is. After this question, the definition of mediation was

given in the questionnaire in order to see if people would resort to it in case of a

conflict.

0 5 10 15 20 25 30 35

yes

no

partially

Do you know what mediation is ?

9

Most of the people dont know if they would resort to mediation in case of a

civil conflict between them and another person or institution (63%), 15% are not

willing to use the services of a mediator, and 22% would consider to use the

services of a mediator in case of a civil conflict.

60 % of the people questioned said that they would not resort to mediation in

case they are involved in a criminal conflict, 34 % dont know what they would do,

and only 6 % affirmed that they will be able to resort to mediation.

22%

15% 63%

6. Would you be willing to use the services of a mediator in case of a

civil conflict between you and

another person?

Da

Nu

Nu stiu

6%

60%

34%

7. Would you be willing to use the services of a mediator in case of a criminal conflict between you and

another person?

Da

Nu

Nu stiu

10

As the chart above states, people are more opened to go to mediation in a

civil conflict (14 out of 65) than in a criminal conflict (only 4), we can also see a

high level of rejection to mediation procedure when it comes to criminal conflict,

39 people said that they would not go to mediation, compared to the civil conflict.

Most of the people questioned (41) said that they dont know if they will resort to

mediation when if they are involved in a civil conflict. This is most probably

because most of the civil conflicts have a pecuniary value.

0

5

10

15

20

25

30

35

40

45

yes no don't know

Corelation between civil and criminal conflict

Civil Conflict

Criminal Conflict

11

In case of a work conflict more than half of the people questioned (52 %)

said that they will try to solve the problem without implicating somebody else, this

means they want to keep their issues confidential. 29 % would ask the boss or

another superior to give a decision, this procedure is similar to arbitration, it does

not matter if you agree with it or not you need to respect it. 11 % of the people said

that it depends on the type of conflict and 8 % care about the relationship they have

with that colleague. For example if they are beer buddies after work they would try

to solve their problem without implicating somebody else, or if its a colleague that

he/she is rarely in contact with most probably would ask the boss to solve their

problem.

29%

52%

11%

8%

8. What would you do if a conflict would outbreak between you and a work colleague? (a type of conflict

that cannot be settled in court)

I would ask the boss or

another superior to solve the

problem

I would do anything in my

powers to solve this problem

withouth the implication of

other sides

It depends on the type of

conflict

It depends on the

relationship i have with that

colleague

12

This question was answered only by people who are willing to use the

services of a mediator in case of a conflict. None of the people who answered

would go to mediation when they have a disagreement with someone. 7 out of 18

people would go to mediation when the conflict is at the confrontation stage, and

11 people would go to mediation only if the conflict escalates. This proves that

people tend to postpone things and only if there is no way out they would resort to

mediation.

0

2

4

6

8

10

12

disagreement confrontation escalation

9. In what stage of the conflict you are willing to seek mediation?

13

Even though people read the definition of mediation which states that the

mediator is impartial, and has no decision power, 4 people are still afraid that

impartiality may still occur during the mediation process. 3 persons believe that the

costs of mediation are too high, even though costs were not mentioned in the

questionnaire, 7 persons dont trust their capabilities to take a durable decision, 9

persons believe that they can sort any conflict by themselves and they do not need

to go to court when they have a problem, and 20 people said that they dont know

or they refused to answer.

0

2

4

6

8

10

12

14

16

18

20

I don't trust

that a

mediator

can be

impartial

The costs

are to high

I am afraid

that I can

take a

decision

based on

emotions

that I might

regret in

the future

I am

capable to

deal with

any kind of

conflict

without

going to

court

Don't

know/don't

answer

Series1 4 3 7 9 20

10. What is the reason for which you would not be willing to call a

mediator to resolve a conflict?

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20 out of 65 persons said that they would participate to a mediation session

to assess the advantages and disadvantages of this procedure. This answer is quite

intriguing because at an earlier question where they were asked: Would you be

willing to use the services of a mediator in case of a criminal conflict between you

and another person? Only 4 persons were willing to go to mediation. 30 persons

said that they would never go to mediation in this case, 5 persons said that it

depends on the degree of aggression, 3 persons said that they will let it pass if it

would be only verbal aggression, and 5 persons dont know or refused to answer.

0

5

10

15

20

25

30

35

I would

participate to

an

informative

session about

mediation to

find out what

advantages I

have in case I

decide to

continue in

this procedure

I would go to

mediation

I would never

go to

mediation,

and I will sue

that person

as fast as I

can

It depends on

the degree of

agression

If the

agression

would be only

verbaly I let it

pass and do

nothing

I don't know/

don't want to

answer

11. If you were physically or verbally abused by another person,

then that person will convene

mediation, what would you do?

15

28 % of the people questioned would follow the mediation procedure, from

which 17 % would go and ask the mediator to do anything in his power to invite the

other party to mediation, and for 8 % depend on the qualities of the mediator and

the degree of trust he inspires. A majority of 72 % would just ask for the minute

that certifies they followed the prior procedure. I believe we have such a high

majority of people that want to go to court because a lot of them follow the prior

procedure of mediation information only after talking and paying a lawyer.

17%

11%

72%

12. If you would be in a situation when wanting to sue someone and as a prior procedure you should go

to mediation how would you act?

I would go and ask the

mediator to do anything in

his power to invite the other

party to mediation

It depends on the qualities of

the mediator and the degree

of trust he inspires

I would only ask for the

minute that certifies that I

followed the prior procedure,

and I would continue in court

16

49 % of the people stated that they would try to negotiate personally with the

person who owes money, 22 % would ask for the services of the mediator.

Probably they gave this answer because they saw mediation as an opportunity to

reschedule the debt. 17 % would do another loan to a family member or a close

friend to be able to pay the initial debt and 12 % prefers to be sued because they are

certain that the process can take years and this way they will be able to postpone

the payment.

22%

12%

49%

17%

13. If you borrow a sum of money from one person and then you would

be unable to restore it, and that

person threatens to sue you what would you do?

I would contact a mediator,

to summon the other party

to mediation, where I will try

to obtain a rescheduling of

the debt

I would prefer to be sued,

because the procedure is

long and hard and it Is

possible to last a few years

I would try to negogiate

personally with the person I

own money

I would do a second loan

from a family member or a

close friend to pay my initial

debt

17

As the graphic above states 33 persons out of 65 believe that mediation is a

viable option for solving conflicts and dispute. Probably this high number is

because they were influenced by the questioned prior to this one. They learned that

through mediation they can negotiate a rescheduling of a debt or that they can use

the procedure to reconcile with another person in a civil or a criminal case. 12

persons still dont think that mediation is a viable option in Romania, and 15

persons dont have an opinion yet.

4.2 QUALITATIVE DATA INTERVIEWS, FACTS AND ARTICLES

4.2.1 MEDIATOR INTERVIEW 1 (DIVORCE MEDIATOR)

Interviewer: Im here with Paul Merlyn, founder of New Resolution. Paul, youre

a divorce mediator. Help me understand why divorce mediation is becoming such a

popular choice for couples today.

Paul: I think its because people are increasingly recognizing that divorce actually

creates a set of problems rather than a contest. The problems are things like how

should we divide our property? How will we coparent our children after the

divorce? And Will I need financial support? I think you see the difference: Contests

beget winners and losers, whereas problems need solutions. If you think of divorce

as a contest, then you should probably roll the dice and play the litigation game. If

010

2030

40

Yes

No

Dont know

14. Do you think mediation is a viable option of solving conflicts and

disputes in Romania ?

18

you think of divorce as a set of problems, then mediation starts to look like a better

way to go.

Interviewer: So youre saying mediation is more solution-oriented than litigation.

But I imagine some people feel a lot of emotion that makes it hard for them to be

practical.

Paul: Youre right. Most divorces are steeped in emotion. You know, people are

people. Yet some mediators think they can somehow force emotional parties into

logical and cooperative behaviors. I personally think that approach to mediation is a

mistake. It seems to me that our emotions are expressions of our authentic feelings.

So I like to work WITH emotions rather than pretend their not there. So, for

example, I spend a lot of time validating, reflect, and redirect emotions to help

clients settle their disputes. At the same time, Ill manage emotions when they get

out of hand. I need to ensure that sessions provide a safe environment for clients to

express their emotions without making anyone too uncomfortable.

Interviewer: Divorce is notoriously expensive. But are there other reasons besides

saving money to try mediation?

Paul: Yes, there are several other reasons, though youve hit upon the biggest

reason when you mentioned cost. The average litigated divorce in California costs

about $50,000 in attorney fees per spouse or $100,000 total. And Ive known

people spend as much as $150,000 when child custody is an issue. Thats enough to

diminish or even completely deplete the estate of some couples. Mediation, in

comparison, costs a fraction of that.

Interviewer: And the other reasons to try mediation?

Paul: I think we list a dozen reasons on our web site. Perhaps the most important is

that mediation empowers people to make their own decisions rather than delegate

decision-making to judges. I think thats important because studies show people

who are active in resolving their disputes do better emotionally as well as

financially than those who pursue litigation.

Paul: Uhh. Another benefit is that mediation works. About 80% of cases actually

settle in mediation.

Interviewer: Wow

Paul: Yeah, and people are much more likely to stand by the terms of their

settlement. I think thats because they feel less resentment when theyve

participated in shaping its terms.

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Interviewer: So, higher compliance. That makes sense. But does mediation ever

fail?

Paul: Chances are that mediation will keep you out of a costly and emotionally

damaging litigation. But it doesnt always produce a settlement. Here I think its

reassuring to recognize that trying mediation doesnt diminish any of your rights to

pursue litigation if mediation fails.

Interviewer: Okay

Paul: I like to think of mediation as a first resort, a provisional alternative to

litigation. Uhh. Other important benefits are protecting children from the often-

traumatic experience of an adversarial divorce; speed (mediation is usually much

quicker than an adversarial litigation), and also convenience. We provide mediation

in locations throughout the Bay Area, and we do our best to accommodate peoples

schedules by offering evening and weekend appointments.

Interviewer: Thats great. Now I dont really like confrontation, so Im

wondering: What do you say to people who hate confrontation and just cant face

the idea of being in the same room as their spouse.

Paul: Well, we do offer telephone mediation, but thats usually when one spouse

lives outside the Bay Area or out of state. But in general mediation really works

best when parties are in the same room with each other and the mediator. (Just in

passing, thats totally different from litigation, which isolates people, making

them UNABLE to communicate directly with one another.) So, we emphasize joint

sessions in which both parties are in the same room with their mediator. However,

we do also meet privately with each party to explore concerns or at points of

impasse.

Interviewer: So each person has a chance to raise any issues theyre maybe

uncomfortable saying while their spouse is in the room?

Paul: Thats right. Im also watching the parties body language to detect any

moments of discomfort. But hopefully there wont be too many of those. The

process is informal, open, and intrinsically non-confrontational. That said, its not a

free-for-all. The mediators guiding the process at every step towards settlement

without ascribing blame, fault, or guilt.

Interviewer: Youre not an attorney, right? Where do attorneys fit into mediation?

20

Paul: Im not an attorney. There are attorney-mediators, but they arent allowed to

give legal advice to either party while acting as mediators. If they did, theyd

compromise their neutrality and face a conflict of interest.

Interviewer: That makes sense.

Paul: Yeah. I see the role of mediator and attorney as complementary but separate,

Mediators are experts in conflict resolution. Of course, we have to know

Californias Family Code, which is the divorce statute for California, but our

primary purpose is to guide parties through a complex set of interlinked disputes

around custody, support, and property division. Usually, the real blockages to a

settlement are emotional issues, especially fear: Will I have enough money? Will I

see my children? Will I have to find a new place to live? Its these kinds of things

rather than questions of law that are usually at the heart of why a husband and wife

cant just agree settlement terms over the kitchen table.

Interviewer: So what role would attorneys play in the divorce?

Paul: I think attorneys can play a very valuable role as legal consultants during a

mediation process rather than as legal representatives in a litigated divorce. In fact,

I recommend my clients consult attorneys for independent legal advice so their

informed and empowered. And they should always have independent attorneys

review any proposed settlement agreement before they sign it. Likewise, they might

need to consult other experts during the mediation process such as real estate

appraisers, business appraisers, CPAs, financial planners, and career counselors.

Interviewer: What are the best and worst parts of your work?

Paul: Thats a fun question! Id say the best part is definitely watching the

transformation that takes place from when people begin mediation to when they

leave. In fact, theres often a discernible moment during a session when I can feel

the session tipping from conflict to collaboration. Those moments are electrifying. I

think I do good work in saving people from an adversarial litigation, and I think I

really make a difference in situations that are very high stakes in peoples lives.

Interviewer: And the worst part?

Paul: [Laugh] Mmmm. Well, Id say this is hard work. My clients are often in a

tumultuous phase of their lives. Theyre sometimes scared, hurt, angry, anxious,

worried. And you have to be comfortable inserting yourself in the middle of

conflict.

Interviewer: It sounds like you really love what you do.

21

Paul: I do.

Interviewer: And I want to thank you for letting me interview you.

Paul: Its been a pleasure. (Merlyn)

Paul Merlyn a mediator from US, that talks about the advantages of

mediation in a divorce, or a family conflict.

Analyzing this interview I reached the conclusion that mediation, is the

best alternative to court when talking about a divorce because it is a

confidential procedure, and the couple wont need to wash their laundry in

public, another advantage is that children are less affected as long as they are

not dragged in a court room full of people to testify for a parent or the other.

Mediation is also cheaper than the court because you dont pay taxes to the

state. If the degree of hostility between sides is high they have the possibility to

talk with the mediator in separate sessions without meeting each other. If they

follow the mediation procedure they can split they assets faster. In mediation

they have the possibility to negotiate themselves, or bring a lawyer; in court

the lawyer does most of the talking. The most important fact about mediation

is that it helps maintain a healthy relationship between the separated couple in

most of the times from which benefits the children.

4.2.2 DIALOG INTRE VICEPRESEDINTELE CONSILIULUI DE MEDIERE ZENO

SUSTAC SI JUDECATORUL CSM CRISTI DANILET

Cum vedeti medierea in Romania peste 5-10 ani?

CD: Intr-o tara framantata de probleme sociale majore, in care apelarea la

judecator este vazuta drept singura solutie viabila, in care neincrederea in autoritati

este mare, medierea poate avea succes numai daca este sustinuta in mod constant.

Statul roman trebuie sa investeasca mult in promovarea medierii, chiar in mod

agresiv si inca de pe bancile scolii, pentru ca populatia sa ia cunostinta de aceasta

noua profesie. De asemenea, institutiile juridice trebuie sa popularizeze medierea,

in mod viral chiar. Daca acestea vor fi realizate, impreuna cu o cresterea a

profesionalismului mediatorilor, peste 10 ani vom putea vorbi despre un succes al

medierii in Romania. Important este ca deja cei 10 ani - iata - au inceput

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ZS: Ce modificari legislative s-ar impune pentru eficientizarea

procedurii medierii?

CD: In anumite cauze medierea ar putea sa fie obligatorie. De asemenea, ar

trebui extinsa in materie penala. Codul familiei ar trebui amornizat cu noua

institutie. Si, in fine, lamurite chestiunile reglementate eliptic referitoare la ajutorul

public judiciar in materia medierii. In rest, totul e legat de bune practici: trebuie sa

avem cat mai multe intalniri comune judecatori-mediatori si cat mai multe acorduri

de mediere ca sa depasim dificultatile practice ce se pot ivi in aplicarea in concret a

dispozitiilor legale privind medierea la spetele care ajung in fata noastra

ZS: Tot mai multi magistrati (dvs, Adi Neacsu, Loreley Mirea, Ana

Maria Puiu etc) sunt promotori ai medierii...Ce a determinat acest lucru?

CD: Facem parte dintre cei care inteleg rolul social al judecatorilor: in afara

de activitatea de solutionarea cauzelor in mod impartial, judecatorul mai are inca

doua roluri foarte importante: sa promoveze si sa sustina drepturile omului,

respectiv sa asigure existenta statului de drept. Ori, drepturile omului pot fi lezate

in conditiile in care un judecator in Romania are prea multe dosare de solutionat

intr-o sedinta de judecata, caci durata de rezolvare a unui caz va creste, iar calitatea

muncii sale va scadea. De aceea, medierea o vedem ca una din metodele prin care

putem eficientiza activitatea instantelor. In al doilea rand, sunt multe aspecte din

viata oamenilor pe care ii judecam asupra carora nu avem nu numai timp, poate nici

abilitati sa ne aplecam - in special cele legate de cauzele conflictului si mai ales

cele legate de aspectele de familie: intotdeauna va fi preferabil ca intr-un cadru

comod, fara stres si zorite de timp limita, partile sa ajunga sa rezolve definitiv

conflictul dintre ele decat sa stea prin instante ani de-a randul, sa cheltuie enorm si

la sfarsit sa obtina o hotarare care sigur va nemltumi vreuna dintre parti. Asadar,

chiar credem in pacea sociala la care medierea poate contribui. (Sustac, Zeno

Sustac in dialog cu judecatorul Cristi Danilet)

Supreme Court Judge Cristi Danilet sees mediation as the only viable

alternative for conflict solving in Romanian society. He believes that the

mediation should be promoted more aggressively by the govern. He believes

that in 10 years from now mediation will reach its full potential. Mr. Danilet is

23

one of the first judges that promoted mediation in Romania. He believes that a

few adjustments are needed to be done to the family law in order for the

mediation law to be more efficient. He confirms what divorce mediator Paul

Merlyn stated above that mediation is very useful for family conflicts, and he

also sees mediation as a fast way for a conflict resolution.

4.2.3 INTERVIU REALIZAT DE REVISTA MEDIERII FOSTEI PRESEDINTE AL

CONSILIULUI DE MEDIERE ANCA CIUCA

RM: Este pregtit societatea romneasc s utilizeze medierea?

AC: Eu cred c da, avnd n vedere c i n actuala situaie, cnd nu exist obligativitatea nici

mcar pentru a avea o prim ntlnire cu un mediator pentru a afla ce este i cum poate s te ajute

mediere, un numr din ce n ce mai mare de persoane apeleaz la mediere i ajung la un acord cu

cealalt parte, asistai fiind de mediator.

Simplul fapt c din luna martie 2010 instanele au nceput s informeze prile c pot recurge la

mediere, a crescut considerabil numrul de medieri efectuate n Romnia. Nu am date statistice

din toat ara, dar acolo unde asociaiile profesionale au colectat astfel de date pot s va spun c,

la nivelul unui jude cu aproximativ 40 de mediatori autorizai, numrul medierilor a crescut de la

10 15 n perioada 2008 - 2009, la peste 400 de contracte de mediere ncheiate n perioada

martie iunie 2010.

RM: Ce msuri ar trebui ntreprinse pentru popularizarea medierii?

AC: Sunt foarte multe forme de popularizare a medierii, dar cea mai eficient metod este prin

activitatea de calitate desfurat de mediatori. Asociaiile profesionale au i ele un rol important,

dar i beneficiarii serviciilor de mediere pot face foarte mult n acest sens. n susinere, doresc s

dau exemplul asociaiilor profesionale ale magistrailor, asociaii care de la nceputul acestui an

au organizat multe aciuni de promovare a medierii i care au avut un rol determinant n

includerea n codurile de procedur i n proiectul Mica Reform a unor prevederi favorabile

medierii. Le mulumesc pe aceast cale tuturor magistrailor care au susinut i susin mediere i

le promit c eforturile Consiliului de mediere vor fi permanent orientate spre asigurarea calitii

serviciilor de mediere, pornind n primul rnd de la formarea mediatorilor. (Sustac, Interviu Anca

Ciuca)

Former president of Mediation Council Anca Ciuca considers that the

Romanian society is ready to utilize mediation as an alternative dispute

resolution method; the number of mediation agreements realized in our

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country is growing by each day and will continue to grow in the future. She

appreciates the role of judges that have promoted this relatively new

institution.

4.2.4MEDIEREA IN CAZURILE PENALE (CRIMINAL CASES)

Cand poate avea loc medierea in penal?

Puteti apela la mediere in cazul infractiunilor pentru care impacarea partilor

nu inlatura raspunderea penala. In aceste cazuri este posibila recupararea

prejudiciului inante de definitivarea procesului penal, prin punerea in executare a

acordului de mediere. In cazul in care inculpatul, in urma acordului de mediere,

acopera prejudiciul cauzat, beneficiaza de circumstante atenuante.

in termenul prevazut de lege pentru introducerea plangerii prealabile;

inaintea procesului penal sau a demararii urmaririi penale;

dupa inceperea procesului penal sau a urmaririi penale;

pe tot parcursul procesului penal pana la ramanerea definitiva a hotararii

judecatoresti.

Infractiunile supuse medierii

Infraciunile a cror rspundere penal se nltur prin retragerea plngerii

prealabile sau prin mpcarea prilor sunt expres prevzute n Codul penal:

Lovirea sau alte violene (art. 180 C.pen., pentru care mpcarea i poate produce

efectele i n cazul n care aciunea penal a fost pus n micare din oficiu);

1. Vtmarea corporal (art. 181 C.pen., pentru care mpcarea i poate produce

efectele i n cazul n care aciunea penal a fost pus n micare din oficiu)

2. Vtmarea corporal din culp (art. 184 alin. 1 i 3, C.pen.);

3. Violarea de domiciliu (art. 192 alin 1, C.pen);

4. Seducia (art. 199 C.pen, pentru care doar mpcarea poate nltura rspunderea

penal);

5. Furtul pedepsit la plngerea prealabil (art. 210 C.pen);

6. Abuzul de ncredere (art. 213 C.pen);

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7. Distrugerea (art. 217 alin 1, C.pen);

8. Tulburarea de posesie (art. 220 C.pen. pentru care doar mpcarea poate nltura

rspunderea penal;

9. Abandonul de familie (art. 305 C.pen.);

10. Nerespectarea msurilor privind ncredinarea minorului (art. 307 C.pen.);

11. Tulburarea folosinei (art. 320 C.pen).

Art. 16.1 introdus in Codul de Procedura Penala prin legea 202/2010 stipuleaza ca,

in cursul procesului penal, cu privire la pretentiile civile, inculpatul, partea civila si

partea responsabila civilmente pot incheia o tranzactie sau un acord de mediere,

potrivit legii, cu privire la despagubirile civile.

Avantaje:

1. Evitati un proces penal pentru infractiunile la care plangerea prealabila pun in

miscare actiunea penala.

2. Beneficiati de serviciile impartiale si neutre ale unui mediator autorizat.

3. Este o cale civilizata de a decide dumneavoastra solutia care sa va satisfaca.

4. Este o metoda rapida si fara costuri mari.

5. Prin accesarea serviciilor de mediere, beneficiati de un ragaz de 3 luni pentru

solutionarea unor situatii dificile pentru ambele parti.

6. Impacarea partilor inlatura raspunderea penala.

7. Confidentialitatea este garantata.

8. Va protejati de expunerea in public si de stres.

Nu este obligatoriu ca victima s ntlneasc fptuitorul n cadrul procedurii

de mediere. Prile pot fi reprezentate de mputernicii cu procur notarial, sau de

avocai. (Predut)

As we can see mediation can be widely utilized to resolute any kind of

conflict. Criminal conflicts are no exception. With the introduction of the New

Criminal Code, mediators can practically mediate in any criminal conflict.

Even tough for serious charges the mediation agreement is only a mitigation

circumstance. For small charges for which the prior complaint can be

withdrawn, if a mediation agreement is reached it means that the perpetrator

will no longer need to be present in a court in front of a judge and will not

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have a criminal record for the rest of its life. This is very useful especially for

foolish teenagers that commit minor crimes, because in mediation they have

the possibility to face the party that they injured and apologize or pay for their

losses.

5. CONCLUSIONS

I structured the conclusions based on the hypothesis and objectives. The first

hypothesis confirmed that most of the people are trying to solve their conflicts by

themselves. It is known that is a Romanian hobby to be good at everything and

have knowledge in every domain. The second hypothesis according to which only a

few people know about mediation was also confirmed by the questionnaires. The

third hypothesis according to which people will most likely resort to a mediator if

they have a civil conflict and only very few would contact a mediator if they have a

criminal conflict confirmed, but at this question I observed a big degree of

reservation, a lot of people did not knew how they would handle a conflict. The

final hypothesis did not confirmed, and to my surprise a lot of the questioned

people believed that mediation is a viable option for Romania, more than half of

them. There was also a category of people that did not know what to answer and

those who believed that mediation is no a viable alternative to traditional justice in

our country.

In my opinion more elaborated studies about mediation should be done in

order to know what is needed to be done in order to better promote the institution

of mediation, from which the people have most benefits. By promote I mean laws

and financial aid to support it. Conflict surrounds us every day and is only up to us

to how we approach it. Not all of us have the capacity to negotiate, this is why

sometimes we must surpass our ego that knows everything and talk to a

professional.

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6. BIBLIOGRAPHY

Bellman, H. (1998). Some reflections on the practice of mediation. Negotiations Journal,

205-210.

Merlyn, P. (n.d.). http://www.newresolutionmediation.com/. Retrieved from New resolution

mediation: http://www.newresolutionmediation.com/mediator-interview.shtml

Predut, M. C. (n.d.). Medierea in penal. Retrieved from http://avocat-mediator.net/:

http://avocat-mediator.net/mediere_penal.php

Sustac, Z. (n.d.). Interviu Anca Ciuca. Retrieved from http://medierea.ro:

http://medierea.ro/interviuri/646-interviu-acordat-revistei-medierea-de-ctre-

doamna-anca-elisabeta-ciuc-preedinte-al-consiliului-de-mediere

Sustac, Z. (n.d.). Zeno Sustac in dialog cu judecatorul Cristi Danilet. Retrieved from

http://medierea.ro: http://medierea.ro/interviuri/554-zeno-sustac-in-dialog-cu-

judecatorul-cristi-danilet

http://legal-dictionary.thefreedictionary.com/mediation