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INTERNATIONAL ARBITRATION
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ADR - Alternative Dispute Resolution COURT
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ARBITRAJ INTERNATIONAL - Curte alternativa de solutionare si mediere a conflictelor - CONFIDENTIAL
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MEDIATION AND CONCILIATION
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Str. Arh. Hirjeu nr. 10. sector 2. Bucuresti, ROMANIA
TEL/fax : 021.321-6125; Mobil : 072458-1078
U.S. Contact at : 6250 W. Flamingo rd. # 31 Las Vegas, NV. 89103.
ACTIVITATEA PRINCIPALA Cod CAEN : 7523 "Activitati de Justitie"
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First of all, which are, from a general perspective, the different types of ADR ?
Mediation
Conciliation
You may in most of the situations have recourse to one or the other of these different types of ADR.
Conciliation and mediation are always optional.
Conflicts between consumer and business.
Conflicts between businesses
Conflicts between employees and employers
Conflicts between landlords and tenants
Family conflicts
Conflicts between private individuals
Other specific situations (e.g. relations with public authorities, health services, solicitors, notaries, etc).
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Mediation
Mediation is defined as the act by the mediator of seeking to bring the two parties together and helping them to find a solution to the dispute between them.
Mediation may take place either out of court or in the course of legal proceedings. In the latter case, it is regulated by sections 131-1 and following of the new code of civil procedure and proceeds under the control of the judge. Any judge to whom a dispute is referred may, with the consent of the parties, have recourse to mediation: for this purpose, he appoints a mediator, a third person who is qualified, impartial and independent. The mediation process must not exceed three months and its confidentiality is guaranteed. The mediator’s remuneration is set by the judge and is the responsibility of the parties, who must make a provisional payment at the start of the procedure, with the exception of impecunious parties who are eligible for legal aid.
When mediation takes place out of court, there are no general regulations governing it.
Conciliation
Conciliation is the agreement reached by the parties, either by discussion between themselves or through a third party, the conciliator. Conciliation aims to put an end to a dispute by means of a solution accepted by the parties.
The parties may resort to conciliation before a legal conciliator out of court if their dispute concerns rights that they are free to exercise. The conciliators receive the parties, who may have assistance. They act in complete confidentiality; that is to say the reports and declarations that they obtain may not be produced or cited later in subsequent proceedings without the consent of the parties. The memorandum of agreement may become legally enforceable if the parties ask the court to order this.
In the judicial context, conciliation is defined as an agreement concluded between the parties in the case, under the aegis of the judge so that the proceedings may end in a negotiated solution and not one imposed by judicial authority. The court of first instance and the local court may also, with the consent of the parties, appoint a conciliator. This is a voluntary legal assistant registered on a list drawn up by the First President of the Court of Appeal following a proposal by the Court of first instance. Conciliation is a free service.
There are two mechanisms:
The preliminary attempt at conciliation before the court of first instance and the local court: the applicant applies orally or in writing to the clerk of the court’s office. The clerk of the court calls the parties together by means of an ordinary letter. If the conciliation is successful, the report, signed by the parties, the judge and the clerk of the court, is legally binding. In the absence of conciliation, the case may either be heard immediately if the parties agree, or there may be a summary or a declaration to the court office, depending on the seriousness of the claim and the nature of the dispute. In practice conciliation hearings are held before a judge in most courts of first instance.
Conciliation ordered during the legal proceeding with the consent of the parties: the court of first instance or local court may, with the consent of the parties, appoint a conciliator to attempt a conciliation. He sets the duration of this mission, which may not exceed one month but which may be renewed once only. The conciliator receives the parties in complete confidentiality. In the event of a memorandum of agreement being produced, it must be submitted for the judge’s approval. In the event of failure, the proceedings resume their course once more.
The law on guidance and planning for legal proceedings allows the court of first instance and the local court to order the parties to meet a conciliator to inform them about the aims and procedures of the conciliation process.
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Disputes can be solved without going to court.
You are in dispute with a firm, a tradesman, your employer, even a member of your family, in your own country or abroad. If you cannot settle the dispute amicably, you can go to court of course, but you can also consider other dispute settlement procedures such as mediation or conciliation.
Sometimes the law or the courts will say you must go to alternative dispute resolution, but more often it is the parties to the dispute themselves who decide to do so. Alternative dispute resolution techniques can help you solve you problems by involving a neutral and qualified third party. Alternative Dispute Resolution comes in different forms, distinguished by the way in which the third party gets involved.
In certain cases, the third party helps the parties come to an agreement without actually formally expressing an opinion on one or other possible solutions to the dispute.
In the course of these processes, known as “conciliation” or “mediation” , the parties are invited to open or resume a dialogue and avoid confrontation; they themselves choose the technique for settling the dispute and play a particularly active role in endeavouring themselves to find the solution that suits them best. These methods provide an opportunity to go beyond the purely legal position and come to a personalised solution matching the real nature of the dispute. This consensus-based approach boosts the chances that once the parties have settled their dispute, they will be able to maintain normal business or personal relations.
In other cases, it is the third party who finds the solution and puts it to the parties.
In consumer disputes in particular, there are various forms of alternative dispute resolution in which the third party produces the solution.
Sometimes the third party makes a recommendation that the parties are then free to accept or not.
The “Consumer Complaint Boards” in the Scandinavian countries work in this way. A consumer who has taken a complaint to one of these boards can subsequently go to court if he is not satisfied with the proposed solution.
Sometimes the third party takes a decision that is binding on the tradesperson.
Sometimes this is the case of the “Ombudsmen” set up in certain businesses such as banking and insurance. Their decisions are binding on firms taking part in the scheme. If the consumer is not satisfied with the decision, he can take his case to court. In yet other hypotheses, more closely resembling the conventional court procedure, the third party is called an “arbitrator” and takes a decision to settle the dispute.The decision, binding on both sides to the dispute, can be taken in accordance with rules of law (classical arbitration) or on an equitable basis (amicable arbitration).
The arbitrator's award has the status of an enforceable decision, which means that the settled dispute basically cannot be taken to court. Arbitration is often regarded as not really being a form of alternative dispute resolution. There are instruments of Community and international law governing or encouraging alternative dispute resolution. For further information on “Community law” or “International law” send your questions to:
by Mircea Halaciuga, Esq. President
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Clauses to look out for in a contract:
• The party-hopping assignment: Deals can be bought or sold--or, in legal jargon, "assigned." Thus, you could shake on it with a person you like and end up doing business with a person you don't like. To prevent the other side from selling your deal, have your lawyer incorporate appropriate verbiage into your contract. Conversely, if you want the right to sell the deal, your lawyer can spell that out, too.
• The integration clause: The integration or merger clause protects you from a claim that there are other parts to your deal that weren't written down, or that you reached an oral agreement to change the written one. It's usually the last clause in a contract. Here's a simple version: "This agreement contains our entire understanding and cannot be changed orally." It's standard and rarely controversial.
• Audit clauses: If your deal entitles you to ongoing profit or royalty payments, audit clauses will give you the right to check their accuracy. Frequency of accountings, notices, costs and time limitations are negotiating points.
• Representations and warranties (R&Ws): If prevarication is the disease, R&Ws are the cure. These make the other side reduce to black and white that which it promises to be true.
R&Ws must be custom-designed for each deal. The more complex the transaction, the more exhaustive the R&Ws and extensive the attendant negotiations. Even though R&Ws flag problems and promote honest discussion, don't let your guard down just because the other side swears everything's OK. In the real world, their dishonesty will become your problem.
• A notice clause: A notice clause lays out exactly how parties will exchange formal communications, including where, when and how to send them; when they're effective; and so on. They are innocuous until the parties are fighting; then whether notice was "properly" given can become key.
• Exculpatory clauses: As a general rule, the less you are legally responsible for, the better. Thus, if the other side has the leverage, it will sell you the goods "as is"; have you enter the premises "at your own risk"; and saturate contracts with disclaimers, limitations on liability and indemnities--even placing the obligation on you to buy insurance. It will feel outrageous--until you've got the upper hand and can stick these clauses to someone else.
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