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JUDICIAL AND EXTRAJUDICIAL MEDIATION Ph.D. Lecturer ALINA ŞTEFANIA GORGHIU Legal and Administrative Sciences Faculty, Christian University „Dimitrie Cantemir”

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Presentation on theme: "JUDICIAL AND EXTRAJUDICIAL MEDIATION Ph.D. Lecturer ALINA ŞTEFANIA GORGHIU Legal and Administrative Sciences Faculty, Christian University „Dimitrie Cantemir”"— Presentation transcript:

1 JUDICIAL AND EXTRAJUDICIAL MEDIATION Ph.D. Lecturer ALINA ŞTEFANIA GORGHIU Legal and Administrative Sciences Faculty, Christian University „Dimitrie Cantemir” Peace is not the absence of conflict but the presence of creative alternatives for responding to conflict alternatives to passive or aggressive responses, alternatives to violence. Dorothy Thompson

2 1 General Information Law no. 192/2006, art. 1: mediation is a way of resolving conflicts amicably through a third party specializing in mediation, in terms of neutrality, impartiality, confidentiality and with free consent of parties. The European regulation: Directive 2008/52/EC of the European Parliament and the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters. The National Law: Law no. 192/2006 regarding mediation and the mediator profession, amended by Law no. 370/2009. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Definition of mediation Legal regulation

3 2 General Information 1. It is a voluntary process; 2. It is a confidential procedure; 3. It is an amicable settlement; 4. Requires the presence of a third party, a specialize mediator who is neutral and impartial; 5. Parties resort to this procedure knowingly, having the right to be informed of the mediation; 6. Meditation is characterized by self-determined parties, which held the central role. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Features of Mediation

4 3 The cooperation between the mediators and the lawyers a. Lawyers may attend parties and advise them throughout mediation; b. Legal aid is important in the mediation, lawyers are able to assist in drafting the mediator’s minutes and the mediation agreement; c. Lawyers protect the parts of any unfair terms of the mediation contract; d. The presence of the parts before the mediator is due to the advice received form their lawyers; through mediation, the gain will be from both sides; e. The client advised by the attorney is one that resolves the conflict, not the court. If mediation fails, the parts may appeal to the court; f. The lawyer and the litigant are saving time and reducing stress; g. Mediation expenses are lower than those made ​​ in court (no court fees, no expert fees, etc.); h. Mediation law stipulates that if the conflict is settled during a mediation process, stamp duty already paid will be refunded. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Mediator is not a competitor of the lawyer!

5 4 The Advantage of Mediation 1. time factor - rapid conflict resolution; 2. costs - significantly lower than in court; 3. stress - is significantly reduced with mediation; 4. confidentiality - is provided for the entire procedure, including mediation agreement, unlike the hearings, which are public; 5. choice of mediator - parties, by agreement, may appeal to a mediator agreed by them; 6. procedure - the dispute amicably is achieved through a simplified procedure; 7. flexibility - the schedule is flexible, and discussions are taking place in an informal setting. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU

6 5 Forecasting the absorption capacity of cases Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU No. Yea r Number of Authorized Mediators Mediation No./Day Working Days Absorption capacity (=2*3*4) 012345 12012333621801.200.960 22013600422503.002.000

7 6 Forecasting the absorption capacity of cases Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU NoNo Number of prior information No of Achieved Mediation invested by the court No of Achieved Mediation Not invested by the court No of Failed Mediation 1 3.002.000 1155323463968310984

8 7 Judicial And Extrajudicial Mediation When parties decide to settle the conflict amicably, through mediation, after notification of judicial bodies, we can talk about the application of mediation in relation to the judiciary. It is placed outside the courtroom, it is independent from the judicial or arbitral process in order to prevent such a process, thus the solution resulting it is not the subject of any judge. It may be subject to mediation, according to art. 2 of Law 192/2006: ■ Any rights which the parties may have by agreement or in any manner permitted by law; ■ Disputes in civil, commercial, family, criminal and other matters, the law no. 192/2006. It is not considered a subject of mediation, according to art. 2 of Law 192/2006: ■ Strictly personal rights, like the status of the person; ■ Any rights which the parties do not have by law or by agreement or otherwise permitted by law. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Judicial Mediation Extrajudicial Mediation Fields of Application

9 8 Judicial And Extrajudicial Mediation Both are forms of mediation, which are held following the same procedure; In both cases the conflicts that can be mediated are those in which the parties benefit of those rights; Both types of mediation can be applied to the same types of litigation, belonging to the same areas. Concerning the time attribute, the extrajudicial mediation takes place before the opening proceedings in the courts of law, while mediation shall be conducted after the beginning of such dispute; Judicial mediation may begin also after the recommendations of the court, while extra-judicial mediation will take place only as an expression of will concerning the parties; In the case of extrajudicial mediation, the mediation agreement is enforceable through the notary authentication while for judicial mediation, the mediation agreement is enforceable through the court, to the request of the parties, as judgment expedient; In case of the judicial mediation, the parties may request the reimbursement mediator’s fee in accordance with Art. 20 of Ordinance no. 51/2008 on legal aid in civil matters. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Similarities Differences

10 9 Mediation in the banking field Resolving disputes that may arise between credit institutions, insurance companies, reinsurance and their customers. 1. Not paying with bad faith, liabilities to customers; 2. unjustified refusal from customers to pay interest and penalties legally calculated; 3. threatening, insulting or slandering bank employees by customers; 4. media discrediting the bank by customers; 5. calculated wrong and unjustified interest charges; 6. failure to communicate the interest rate increase; 7. errors in processing customer transactions through online banking and delayed processing of orders; 8. incomplete or unclear information; 9. unauthorized transactions in bank accounts; 10. introduction of unfair terms in the credit agreements; 11. unilaterally change concerning the terms of the agreement by the bank. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Purpose: Conflicts that can be mediated:

11 10 Mediation in the banking field 1. rapid extinction of existing conflicts and prevent the emergence of other misunderstandings; 2. avoid future disputes on unfair terms in credit contracts and insurance; 3. maintaining customer already formed; 4. avoid the costs of a possible process and those involved in enforcement; 5.equitable resolution of disputes between credit institutions, namely insurance and reinsurance companies, through solution agreed by the parties; 6.regain mutual trust; 7. maintaining reputation. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Benefits

12 11 Mediation in business 1. practical way of fulfilling the obligations under the contract; 2. timing of payment of trade payables; 3. how to terminate a commercial contract if it does not contain a withdrawal clause; 4. extinction of certain obligations under the contract. a.profit growth; b.rapid conflict resolution, at low cost; c.creative solutions to solve the conflict in which all parties win; d.maintaining a full confidentiality policy regarding the conduct and the outcome of the mediation; e.reducing the negative impact of conflict on the business; f.fewer disputes with and between employees; g.labor productivity growth; h.reducing hostility and conflict environment; i.prevention of further conflicts; j.strengthening existing business relationships. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Conflicts that may occur Advantages

13 12 Mediation of labor disputes Labor disputes concern the general issues like: a. modification, termination, performance of an individual contract of employment; b. collective bargaining; c. workplace conflicts that arise between colleagues or departments. The existence of labor disputes leads to malfunction of the team, low employee involvement, absence without leave, staff turnover and material losses. 1. Increased productivity; 2. Law personnel costs ; 3. consolidated and lasting relationships in the workplace; 4. efficiency in the recruitment and selection process ; 5. spiritual strength; 6. flexibility in mediating other conflicts; 7. role of solution is to prevent a return to conflict. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU Labor disputes Advantages

14 13 Conclusion Mediation, not as a legal phenomenon but especially as a social phenomenon, governs a state of normality and represents an indicator of civilization among the community. Mediation represents a new procedure for resolving conflicts, a new product on the liberal profession market in Romania. The main difference between mediation and a trial becomes the advantages of mediation. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU

15 14 Conclusion The purpose of mediation is to foster a more flexible, legal, cheaper method of solving disputes and to relieving the courts of minor cases. Mediation, whether judicial or extrajudicial, has the same purpose, that of resolving conflicts amicably, with a satisfactory result for both sides, adapted to the needs and resources The use of extrajudicial mediation is desirable, because to arrive at the judicial mediation implies time, money on stamp duty, lawyers' fees, surveys, etc.., and brakes many times the confidentiality report between the parties. Ph.D.Lecturer ALINA ŞTEFANIA GORGHIU

16 Contact: E-mail: Mobile: 0722 587 667 Fax: 021 230 35 03 Thank You Alina Ştefania Gorghiu

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