Monthly Archives: April 2012

Breaking Down the Romanian Mediation Law

Posted on by Matthew Rushton
Constantin Adi Gavrila

Constantin Adi Gavrila

Constantin Adi Gavrilă is a well known Romanian mediator and mediation trainer, co-founder and general manager of the Craiova Mediation Center Association, first president of the Romanian Mediation Centers Union and first vice-president of the Romanian Mediation Council.

While the rest of the EU didn’t adopt its Mediation Directive until 2008, Romania has had its own mediation law since 2006.

The law clarified the definition and the place of mediation within conflict resolution, the role and obligations of mediators, how can one access the mediation services and who can act as a mediator. It included provisions for the type of cases that can be mediated, including commercial and family disputes, penal matters and labor conflicts.

Parties can voluntarily choose to mediate, but all judicial bodies must inform parties about the mediation process and its advantages and recommend its use.

Mediators in Romania do not have to possess law degrees in order to receive accredidation, which is adminstered by the Romanian Mediation Council. However, there are many requirements for accreditation and the process is strict. A minimum of 80 training hours are required and at least 75 percent must be spent in practical circumstances, such as role-playing and other experiential exercises. Once accredited, authorized mediators are publicly listed on the Panel of Mediators published in the Romanian Official Journal, on the Mediation Council website and on a list distributed to all courts.

Parties may jointly request mediation, or one side may file independently. Under Romanian law, a formal mediation contract must be signed among all parties, including the mediator, before any mediation can begin.

As in other countries, the relationship between the mediator and the parties is paramount. It must rely on trust, integrity, sense of justice and sincerity of the mediator. If mediators are aware of any circumstance which might prevent them from being impartial and neutral, they have the obligation to refuse the case.

The mediators authorized by the Mediation Council have the obligation to deliver all necessary explanations to the parties related to the mediation activity, so that they clearly understand the purpose, limits and effects of mediation. All mediators must ensure that the mediation process fully respects the freedom, dignity and private lives of the parties. Mediators are also bound by confidentiality, which extends to all information or documents submitted into the process. As a rule, the parties are also bound by confidentiality, but they may decide to waive it in certain circumstances.

If a case pending in the courts is settled through mediation, the court will, on the request of the parties, issue a decision in accordance with the provisions under Art. 271 in the Romanian Civil Procedure Code. The court will also reimburse to the parties the judicial stamp charges paid to the court to deal with the case. This has become an important incentive for mediation in Romania.

Romania’s mediation law has been a significant step forward in the enhancement of public trust in mediators and the mediation process. It has also increased dispute resolution efficiency and assisted the courts in dealing with case backlogs.

A numer of other European countries have found success in the mediation directive, including Italy, Spain and the Netherlands, who have seen a significant drop in case backlogs. More countries continue to explore how best to apply the directive in their own jurisdictions.

Probate Battles: Tips on How to Manage Wills Between Family Members

Posted on by Hon. Elaine Rushing (Ret.)

Today’s post comes from Hon. Elaine Rushing (Ret.), who  served on the Sonoma County Superior Court bench for nearly two decades, including five years as Supervising Judge of the Civil Division. She has handled hundreds of settlement conferences in a variety of civil cases, including business litigation, construction, personal injury, employment, real estate, family law, and trusts, estates and probate matters.

Judge Elaine Rushing

A mother dies, leaving her daughter 75 percent of her estate. Her son, who thought he would receive 50 percent, contests the will. The daughter claims that their mother must have changed her will to compensate the daughter for caring for her during her last illness. The son, who was geographically distant, contends daughter alienated his mother from him and is now taking his inheritance.

An “unnatural” disposition in a decedent’s will can cause intra-family conflict, and will contests are often expensive and lengthy. More alarming, the litigation usually results in estrangement among family members.  What can legal professionals do to prevent such a tragedy? Here are four suggested strategies.

  • Draft the testamentary instrument to explain “unnatural” dispositions.

“I, Mother, love both children equally. However, acknowledging daughter’s recent assistance with my personal care, I have decided to leave daughter 75 percent and son 25 percent. Daughter and I have never spoken of this and she knows nothing about it.”

  • Include alternative dispute resolution provisions in trusts and wills.

Mediation:  Testators do not want their passing to spark a family feud. Thus, ADR should be routinely suggested, if only in a precatory fashion. The instrument can provide that the estate or trust pay for mediation, name the site for the mediation and identify suitable mediators – all issues that can be difficult to resolve once a conflict has begun.  “I have no desire to have this trust provoke an expensive and bitter lawsuit among my heirs. Therefore, it is my wish that any disputes arising under this trust shall first be mediated. The trust shall bear all costs.”

Arbitration:  A contest over the validity of a will is not a proper subject for arbitration, because a probate proceeding is in rem and binding on persons who are not parties to the proceedings.

However, an alternative to trust litigation might be binding arbitration. I use “might” because the most recent case to construe a trust clause requiring binding arbitration held that such clauses are unenforceable. In Diaz v. Bukey, the court ruled that a trust beneficiary was not contractually bound to arbitrate a dispute with the trustee.

Consider the following: “It shall be a condition to acceptance of any trusteeship or any beneficial rights under this instrument that all disputes among beneficiaries or trustees shall be resolved in a binding arbitration.” Here, one does not acquire any rights as trustee or beneficiary unless one signs a contract to arbitrate any disputes.

  • Maximize mediation by expanding the “issues”

In probate mediation, limiting ourselves to purely legal issues wastes a valuable opportunity to help a family restore its trust. Issues that can be addressed in mediation, but would not be appropriate in litigation include mother’s love and acceptance; an apology; a thank you; and so on.

  • Stipulate to arbitration

Suppose you have mediated without success. Are you only relegated to litigation? A trial may not fit your client’s needs or a trial that should only take a few days might last several weeks. Additionally, if a party is well known or averse to discussing personal matters in public, probate trials can be embarrassing. For these reasons, arbitration might be more efficient.

One distinctive aim of a testator is the preservation of the family.  Another might be to avoid the loss of bequests to attorneys’ fees. In Dickens’ novel Bleak House, the recipients of the testator’s largesse wound up with nothing. Using any of these suggested tools, we ultimately can do much better.

Mediation is a Team Sport

Posted on by Hon. Wayne Brazil (Ret.)

Too many mediators give themselves too much credit when cases they mediate settle. And too many lawyers put too much responsibility for the success on the mediator. But ultimately, it takes a team effort, and a vigorously shared sense of responsibility to maximize the likelihood that a mediation will be productive.

No one person is in a position to identify, or to understand how to manage or capitalize on all the factors, considerations, emotions and forces that can come into play during the mediation of a matter that is in litigation. The more people working to identify and understand the variables in play, the better the odds that unnecessarily lost opportunities will not derail the mediation.

The mediation process, viewed superficially, seems fairly straightforward. But it isn’t. Even its goal is often misidentified. The real goal isn’t simply to get the case settled – it’s to determine the best settlement terms the mediation is capable of generating.

The route to identifying the “best accessible terms,” however, often is both unclear and rich in hazards. The participants can reduce the risk of taking wrong turns and getting lost if all of them, not just the mediator, help decide which way to go when the group encounters forks in the road.

Among other things, this means that lawyers and litigants should not think only about how to impress or persuade or capture the mediator. Instead, it can be very important to think about the other participants in the process: what do they need, how can we try to address their interests or concerns, what would help opposing counsel gain greater trust from his client, what kinds of things could we do that would show the other side that we really have heard them, what can we do to increase our credibility with the other side, how is the other side likely to feel about or respond to different steps that we might take?

By asking these kinds of questions, the participants are attempting to improve or preserve the health of the process itself. They don’t want the process to break down on some artificial or avoidable grounds, e.g., because they take a tactical or behavioral risk that backfires, or because they are insensitive to something an opponent cares a lot about. And instead of relying completely on the mediator to keep the process on track, they explicitly discuss these kinds of questions with them (usually in private caucus), sharing their insights into other participants’ circumstances and personalities, so that, working with the mediator, they can take the steps that will enable them to use mediation to determine what their best alternative to trial really is.

Is an ODR System Coming Soon?

Posted on by Chris Poole

This week’s issue of The Lawyer Weekly discusses the recent developments of UNCITRAL’s Online Dispute Resolution System. Following is an excerpt from the article and link to the piece in full.

International arbitration is all over the map when it comes to resolving minor commercial disputes. Soon the United Nations Commission on International Trade Law (UNCITRAL) will announce its recommended rules for an ODR later this year.

“The concern is there are many, many millions of cross-border, but small transactions,” said Timothy Lemay, principal legal officer with the UNCITRAL Secretariat in Vienna. “There is no very good place for those disputes to be resolved.”

According to a UN report on the issue, countries around the globe are looking for a consistent approach to dealing with smaller commercial disagreements — and they believe a new model is needed.

“Many delegations voiced the view that traditional dispute resolution mechanisms, including litigation through the courts, were inappropriate for addressing these types of disputes, being too costly and time-consuming in relation to the value of the transaction,” the report stated.

“It’s undeniable that government resource shortages are making it difficult for many governments to maintain or improve small-claims dispute options, so long as they continue to rely on traditional court litigation,” said Darin Thompson, legal counsel with the B.C. Ministry of the Attorney General in Victoria, Canada.

“But in terms of the UNCITRAL model for low-value, high-volume cross-border disputes, the rationale seems to be more about providing redress for consumers where none would otherwise be available,” he added.

“We’re now working on the general procedural rules, such as who files a claim, when, during what period, what can be claimed … remedies, and who decides the remedies,” said Lemay.

A three-stage process — negotiation, facilitation, and arbitration — has been recommended, he added.

To continue reading, click here.