ASPECTS OF THE DIFFICULTIES OF WORKING AS A MEDIATOR WITHOUT HAVING A LEGAL BACKGROUND

Abstract

Mediation was introduced in the Romanian legal system by the Law on mediation no. 192/2006 subsequently amended and completed with the clear purpose to ensure the possibility of the amicable settlement of conflicts and the decrease of the workload in courts. The present article involves ethical and organizational aspects in the mediator’s activity through art . 7 in Law no. 192/2006, according to which the profession of mediator may be taken up by any individual who is mentally unimpaired, has a degree in higher education, 3-year seniority, is medically fit, enjoys a good reputation, has not been sentenced for an intentional crime causing harm to the profession, has graduated the necessary courses, and is accredited as a mediator under statute. None of these requirements imposes specialized legal studies, which, in our view, is a huge minus. Mediation in a divorce case - for instance - requires knowledge of the civil law. In our opinion, a mere specialization course cannot provide the future mediator with the necessary legal knowledge to conclude a valid agreement and he/she should be required to hire a lawyer or a legal adviser (this fact will increase the costs of mediaton) not only to have the possility to hire one. The present paper deals with the deficiencies and inherent problems occurring when the mediator is not a jurist, with the necessary legal background. Moreover, the ethical and deontological oligation of the mediator, established by Law no. 192/2006 and especially by The Code of Ethics and professional deontology of the Mediator can not be fulfilled in the absecence of legal studies or legal counseling. In the present paper we rephered to the following oligations:and ethical/deontological duties of the mediator: competence, the relationship of trust between the mediator and the parties (which envolves the mediator’s ability to actually solve the conflict based on his/her legal knowledge) – provided by Article 2.4 of The Code of Ethics and professional deontology of the Mediator, honesty, best dilligence, moral integrity, confidentiality, etc.