Editura Universitara Mediation Council - autonomous body of public interest

ISBN: 978-606-591-512-1

DOI: 10.5682/9786065915121

Publisher year: 2015

Edition: I

Pages:

Publisher: Universitară

Author: Zeno Şuştac, Nicoleta Pirvan

Product Code: SKU-11065 Do you need help? 0745 200 718 / 0745 200 357
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LEGAL FRAMEWORK IN THE FIELD OF MEDIATION

Established nine years ago by law no. 192/2006, the Mediation Council is insufficiently covered in the Romanian specialized literature. The presentation of the organization, functioning and attributions as well as of its working procedures, constitutes a point of interest for the specialists in the field and for the persons interested in accessing the mediation service.

Romanian law speaks for the first time about the named institution
"Mediation Council" in the law no. 192/2006 on the mediation and organization of the mediator profession, adopted by the Romanian Parliament on May 16, 2006, published in the Official Gazette of Romania no. 441 dated 22.05.2006.

According to it, "In order to organize the mediation activity, the Mediation Council is established, an autonomous body with legal personality, of public interest, based in Bucharest". The law organizes for the first time the mediation activity in Romania, until the moment of the law this taking place according to the general legislation and not according to a specific law of mediation, within several non-governmental organizations among which we can mention the Craiova Mediation Center, Foundation for Democratic Changes, Pro Mediation Association, Community Mediation and Security Center, etc.

In this context, by the appearance of law no. 192/2006, the mediation activity and the mediator profession are institutionalized. The need to organize the mediation activity (activity of public interest within the meaning of the law) is anticipated by the legislator, who considers that it is necessary to establish a national forum to organize the mediation activity and the mediator profession on the Romanian territory. Organization, in a broad sense, involves the coordination of actions (systematization of efforts), based on a well-defined plan, according to specific rigors, in order to achieve a goal, quantifiable in certain results. The need for the functioning of those who provide the mediation service in an organized way led to the establishment by law of the Mediation Council, the national authority for control and regulation in the field of mediation.

The Mediation Council, according to article 17 par. 1 of the law of mediation, arises to protect and satisfy a public interest. The concern of the legislator in this sense, enshrines the mediation activity as being of public interest. Naturally, an activity of public interest can only be coordinated and monitored by a body of public interest, this being also the name at which the Romanian legislator stops when talking about the Mediation Council. Within the meaning of law no. 477/2004, art. 4 letter c, the public interest is defined as “That interest which implies the guarantee and observance by public institutions and authorities of the rights, freedoms and legitimate interests of citizens, recognized by the Constitution, domestic law and international treaties to which Romania is a party, as well as and fulfilling the service attributions, respecting the principles of efficiency, effectiveness and economy of spending resources. ” Law no. 195/2001, in article 2 letter b defines the activity of public interest as follows: “the activity of public interest is the activity carried out in fields such as: assistance and social services, protection of human rights, medical-sanitary, cultural, artistic, educational, educational , scientific, humanitarian, religious, philanthropic, sports, environmental protection, social and community and the like ”; It should be noted in the Romanian legislation that the name of autonomous body of public interest and that of activity of public interest have been used previously, with certain particularities (see law no. 129/1998 establishing the Romanian Social Development Fund, body of public interest, autonomous from an administrative point of view, with legal personality, apolitical, subordinated to the Government as well as law no. 195/2001 which defines volunteering as a “public interest activity carried out on its own initiative by any natural person, for the benefit of others, without receiving a material consideration).

The autonomy enjoyed by the Council is total, it is not a question of a restricted autonomy, this not being subordinated to any authority. In the initial text of the law (not in its consolidated form at this moment), at article 17 par. 4, there is a provision regarding the validation of members by the Minister of Justice, a provision transposed in practice by issuing a validation order. This recognition of the validity of the appointment of the first council, respectively of the election of the second one by the Minister of Justice, did not violate in any way its autonomy, being more than necessary in the initial phase of the functioning of the Mediation Council. Subsequently, in order to give even more "weight" to the national forum in the field of mediation, by law no. 370/2009 for the amendment and completion of law no. 192/2006, the requirement for the validation of the members by the Minister of Justice is abrogated, the autonomy of the Council being total and uninterpretable. The Romanian legislator could adopt the option of subordinating the Council to a public authority (see the case of subordinating the Council of the Republic of Moldova or Austria to the Ministry of Justice),

The Mediation Council, an autonomous body of public interest, stopping at the option (inspired in our sense) of establishing an autonomous national authority over any state institution, with the capacity for self-regulation and administrative attributions. Being an important alternative to Justice, we consider that the choice of non-subordination to the Ministry of Justice was a fair choice, the benefits of autonomy contributing over time to the consolidation and maturation of the profession.

In order to emphasize the importance of the established body, it is specified in the text of the law that it is "based in Bucharest." Even if the phrase “national” is not included in its name, its national representativeness is evident from the corroboration of the provisions of law no. 192/2006.
Being invested with legal personality, the council is recognized by law the aptitude to be a legal person, thus becoming the holder of rights and obligations.

Express provisions on the Mediation Council can be found in section 2, articles 17-21 of law 192/2006, a section called “Mediation Council”.
Article 17 para. 2 of the law specifies regarding its organization and functioning which is carried out "according to the provisions of the present law, as well as of its regulation of organization and functioning."

The nominated regulation entitled “Regulation on the organization and functioning of the Mediation Council” was adopted based on the attributions conferred by law on 13.05.2007 by the Decision of the Mediation Council no. 5, decision published in the Official Gazette, Part I no. 505 of 27/07/2007 (acronym used-ROF). Over time, it has been successively amended / supplemented by the following decisions: Decision of the Mediation Council no. 128 / 26.11.2009 published in the Official Gazette, Part I, no. 913 of December 24, 2009, Decision of the Mediation Council no. 263 / 19.03.2010 published in the Official Gazette, Part I, no. 279/29 April 2010, Decision of the Mediation Council no. 517 / 21.05.2010 published in the Official Gazette, Part I, no. 27 of January 12, 2011, Decision of the Mediation Council no. 2,018 / 15.04.2011 published in the Official Gazette, Part I, no. 396 of June 6, 2011, Decision of the Mediation Council no. 2,247 / 29.07.2011 published in the Official Gazette, Part I, no. 581 of August 17, 2011, Decision of the Mediation Council no. 2,450 / 06.08.2011 published in the Official Gazette, Part I, no. 634 of September 6, 2011, Decision of the Mediation Council no. 2,570 / 24.08.2011 published in the Official Gazette, Part I, no. 686 of September 28, 2011, Decision of the Mediation Council no. 2,892 / 25.11.2011 published in the Official Gazette, Part I, no. 883 of December 14, 2011, Council Decision of
mediation no. 7 / 14.01.2012 published in the Official Gazette, Part I, no. 70 of January 27, 2012 and the Decision of the Mediation Council no. 195 / 25.02.2012 published in the Official Gazette, Part I, no. 224 of April 4, 2012. The most recent amendments were adopted by decisions no. 4346 and 4911 of 2013 and by decisions no. 5 and 52 of 2014, published in the Official Gazette.

The first section of the ROF is called "General Provisions" and resumes in Article 1 para. 1 definition in the law of the Council:
„Art. 1. - (1) The Mediation Council, hereinafter referred to as the Council, is an autonomous body with legal personality, of public interest, based in Bucharest, with regulatory attributions in the field of mediation, established pursuant to art. 17 para. (1) of Law no. 192/2006 on the organization and exercise of the mediator profession, with subsequent amendments and completions, hereinafter referred to as the Law. "Compared to the definition given by article 17 paragraph 1 of the mediation law, article 1 paragraph 1 of the ROF extends the formulation of the legislator detailing a part of the attributions of the council that results from the interpretation of the law and keeping unchanged the rest of the provisions.

Our definition, resulting from the interpretation of the law and the ROF:
The Mediation Council is the body with legal personality established by law no. 192/2006, which is organized and operates according to the provisions of the mediation law and of the ROF, operating in the public interest, being autonomous from the state institutions, based in Bucharest, having control and regulation attributions in the field of mediation.
  • Mediation Council - autonomous body of public interest

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Dr. Zeno Sustac (coordinator)
Mediator, Doctor in the field of Alternative Dispute Resolution, Vice President of the Mediation Council during 2011-2012 and 2012-2015, Co-President of the National Union of Mediators in Romania, Co-President of the National Union of Negotiators in Romania, international expert in the field cross-border mediation, main trainer, examiner and evaluator in the field of mediation, associate professor of the West University of Timisoara, lawyer, insolvency practitioner, writer.

Nicoleta Pirvan
Mediator, Definitive Legal Adviser, Head of Legal Department Mediation Council, General Secretary of the Bucharest Mediators Association, Trainer in the field of adult training, Main trainer in the field of mediation

content
1. The legal framework in the field of mediation / 7
2.Organization of the Mediation Council / 11
3. Functioning of the Mediation Council / 18
4. The attributions of the Mediation Council / 22
5. Working procedures of the Mediation Council / 37
6. The mission of the mediation council / 55
7. Comparative study in the field of mediation at the level of the European Union (Regulations / Particularities / Fields of application / Special procedures / Training) / 59
8.Addenda / 113
Law no. 192 of May 16, 2006 regarding the mediation and organization of the mediator profession / 115
Decision no. 5 of May 13, 2007 for the approval of the Regulation on the organization and functioning of the Mediation Council / 142
Decision no. 17129.01.2010 adopt the adoption of the Code of Ethics and Conduct of the members of the Mediation Council / 235
Decision no. 12 of September 7, 2007 for the approval of the Mediator Training Standard / 242
9.Bibliography / 260

LEGAL FRAMEWORK IN THE FIELD OF MEDIATION

Established nine years ago by law no. 192/2006, the Mediation Council is insufficiently covered in the Romanian specialized literature. The presentation of the organization, functioning and attributions as well as of its working procedures, constitutes a point of interest for the specialists in the field and for the persons interested in accessing the mediation service.

Romanian law speaks for the first time about the named institution
"Mediation Council" in the law no. 192/2006 on the mediation and organization of the mediator profession, adopted by the Romanian Parliament on May 16, 2006, published in the Official Gazette of Romania no. 441 dated 22.05.2006.

According to it, "In order to organize the mediation activity, the Mediation Council is established, an autonomous body with legal personality, of public interest, based in Bucharest". The law organizes for the first time the mediation activity in Romania, until the moment of the law this taking place according to the general legislation and not according to a specific law of mediation, within several non-governmental organizations among which we can mention the Craiova Mediation Center, Foundation for Democratic Changes, Pro Mediation Association, Community Mediation and Security Center, etc.

In this context, by the appearance of law no. 192/2006, the mediation activity and the mediator profession are institutionalized. The need to organize the mediation activity (activity of public interest within the meaning of the law) is anticipated by the legislator, who considers that it is necessary to establish a national forum to organize the mediation activity and the mediator profession on the Romanian territory. Organization, in a broad sense, involves the coordination of actions (systematization of efforts), based on a well-defined plan, according to specific rigors, in order to achieve a goal, quantifiable in certain results. The need for the functioning of those who provide the mediation service in an organized way led to the establishment by law of the Mediation Council, the national authority for control and regulation in the field of mediation.

The Mediation Council, according to article 17 par. 1 of the law of mediation, arises to protect and satisfy a public interest. The concern of the legislator in this sense, enshrines the mediation activity as being of public interest. Naturally, an activity of public interest can only be coordinated and monitored by a body of public interest, this being also the name at which the Romanian legislator stops when talking about the Mediation Council. Within the meaning of law no. 477/2004, art. 4 letter c, the public interest is defined as “That interest which implies the guarantee and observance by public institutions and authorities of the rights, freedoms and legitimate interests of citizens, recognized by the Constitution, domestic law and international treaties to which Romania is a party, as well as and fulfilling the service attributions, respecting the principles of efficiency, effectiveness and economy of spending resources. ” Law no. 195/2001, in article 2 letter b defines the activity of public interest as follows: “the activity of public interest is the activity carried out in fields such as: assistance and social services, protection of human rights, medical-sanitary, cultural, artistic, educational, educational , scientific, humanitarian, religious, philanthropic, sports, environmental protection, social and community and the like ”; It should be noted in the Romanian legislation that the name of autonomous body of public interest and that of activity of public interest have been used previously, with certain particularities (see law no. 129/1998 establishing the Romanian Social Development Fund, body of public interest, autonomous from an administrative point of view, with legal personality, apolitical, subordinated to the Government as well as law no. 195/2001 which defines volunteering as a “public interest activity carried out on its own initiative by any natural person, for the benefit of others, without receiving a material consideration).

The autonomy enjoyed by the Council is total, it is not a question of a restricted autonomy, this not being subordinated to any authority. In the initial text of the law (not in its consolidated form at this moment), at article 17 par. 4, there is a provision regarding the validation of members by the Minister of Justice, a provision transposed in practice by issuing a validation order. This recognition of the validity of the appointment of the first council, respectively of the election of the second one by the Minister of Justice, did not violate in any way its autonomy, being more than necessary in the initial phase of the functioning of the Mediation Council. Subsequently, in order to give even more "weight" to the national forum in the field of mediation, by law no. 370/2009 for the amendment and completion of law no. 192/2006, the requirement for the validation of the members by the Minister of Justice is abrogated, the autonomy of the Council being total and uninterpretable. The Romanian legislator could adopt the option of subordinating the Council to a public authority (see the case of subordinating the Council of the Republic of Moldova or Austria to the Ministry of Justice),

The Mediation Council, an autonomous body of public interest, stopping at the option (inspired in our sense) of establishing an autonomous national authority over any state institution, with the capacity for self-regulation and administrative attributions. Being an important alternative to Justice, we consider that the choice of non-subordination to the Ministry of Justice was a fair choice, the benefits of autonomy contributing over time to the consolidation and maturation of the profession.

In order to emphasize the importance of the established body, it is specified in the text of the law that it is "based in Bucharest." Even if the phrase “national” is not included in its name, its national representativeness is evident from the corroboration of the provisions of law no. 192/2006.
Being invested with legal personality, the council is recognized by law the aptitude to be a legal person, thus becoming the holder of rights and obligations.

Express provisions on the Mediation Council can be found in section 2, articles 17-21 of law 192/2006, a section called “Mediation Council”.
Article 17 para. 2 of the law specifies regarding its organization and functioning which is carried out "according to the provisions of the present law, as well as of its regulation of organization and functioning."

The nominated regulation entitled “Regulation on the organization and functioning of the Mediation Council” was adopted based on the attributions conferred by law on 13.05.2007 by the Decision of the Mediation Council no. 5, decision published in the Official Gazette, Part I no. 505 of 27/07/2007 (acronym used-ROF). Over time, it has been successively amended / supplemented by the following decisions: Decision of the Mediation Council no. 128 / 26.11.2009 published in the Official Gazette, Part I, no. 913 of December 24, 2009, Decision of the Mediation Council no. 263 / 19.03.2010 published in the Official Gazette, Part I, no. 279/29 April 2010, Decision of the Mediation Council no. 517 / 21.05.2010 published in the Official Gazette, Part I, no. 27 of January 12, 2011, Decision of the Mediation Council no. 2,018 / 15.04.2011 published in the Official Gazette, Part I, no. 396 of June 6, 2011, Decision of the Mediation Council no. 2,247 / 29.07.2011 published in the Official Gazette, Part I, no. 581 of August 17, 2011, Decision of the Mediation Council no. 2,450 / 06.08.2011 published in the Official Gazette, Part I, no. 634 of September 6, 2011, Decision of the Mediation Council no. 2,570 / 24.08.2011 published in the Official Gazette, Part I, no. 686 of September 28, 2011, Decision of the Mediation Council no. 2,892 / 25.11.2011 published in the Official Gazette, Part I, no. 883 of December 14, 2011, Council Decision of
mediation no. 7 / 14.01.2012 published in the Official Gazette, Part I, no. 70 of January 27, 2012 and the Decision of the Mediation Council no. 195 / 25.02.2012 published in the Official Gazette, Part I, no. 224 of April 4, 2012. The most recent amendments were adopted by decisions no. 4346 and 4911 of 2013 and by decisions no. 5 and 52 of 2014, published in the Official Gazette.

The first section of the ROF is called "General Provisions" and resumes in Article 1 para. 1 definition in the law of the Council:
„Art. 1. - (1) The Mediation Council, hereinafter referred to as the Council, is an autonomous body with legal personality, of public interest, based in Bucharest, with regulatory attributions in the field of mediation, established pursuant to art. 17 para. (1) of Law no. 192/2006 on the organization and exercise of the mediator profession, with subsequent amendments and completions, hereinafter referred to as the Law. "Compared to the definition given by article 17 paragraph 1 of the mediation law, article 1 paragraph 1 of the ROF extends the formulation of the legislator detailing a part of the attributions of the council that results from the interpretation of the law and keeping unchanged the rest of the provisions.

Our definition, resulting from the interpretation of the law and the ROF:
The Mediation Council is the body with legal personality established by law no. 192/2006, which is organized and operates according to the provisions of the mediation law and of the ROF, operating in the public interest, being autonomous from the state institutions, based in Bucharest, having control and regulation attributions in the field of mediation.

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