Draft2. 18 September

RESTORATIVE JUSTICE AND VICTIM OFFENDER

MEDIATION IN ROMANIA1

Doina Balahur

Introduction

The analysis of regulations directing and guiding restorative justice

acquires meaning only if it is interpreted within the wider context of the

transformations of the modern law and mainly of the modern world itself.

It is not the aim of this chapter to make such an investigation, but the need

for such interpretation must at least be recognised. This is because it

comprises the reference point against which it is possible to appreciate not

only the rapid growth of the new alternative dispute resolution practices,

and especially of restorative justice, but also the ’why’ of the of the

substantial ground it has gained within the last decade, even in the former

communist countries. During this time restorative justice has attracted the

attention of the leading interdisciplinary scientific research – sociological,

juridical and criminological – at both the European and the international

level. It owes its central status to the potential that its values, principles

and programmes have as the basis for an alternative paradigm of justice, of

conflict resolution and of safer communities. In his recent book, Ivo

Aertsen and his colleagues concluded that these virtues were so well

recognised that it is possible to speak today about the institutionalizing of

Restorative justice (Aertsen et al, 2006).

Nobody doubts today that modern law has lost its ’empire’, a

consequencence of a long list of discontent about law’s capacity to deliver

1 In Aertsen, Ivo and David Miers (Eds) (forthcoming) Restorative Justice : Evaluative Findings in Europe, Bremen, Polizei und Wissenschaft.

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on even its most basic claims for legitimacy. Among these is the striking

and repated failure of the modern system of formal justice to keep its

promise to be an objective and fair means of conflict resolution (Balahur

and Balahur (2005). This observation is supported by a large body of

research, undertaken from the perspective of a wide range of social and

legal disciplines, which has signaled the emergence of less formalized

models of social and political crime control and the pluralization of the

justice providers. The explanations that have accompanied these changes

vary appreciably among different disciplines and scholars. Some consider

that restorative justice’s recent visibility is closely associated with the end

of one of the ’foundational myths of the modern society: the myth that the

sovereign state is capable of delivering ’law and order’ and controlling

crime within its territorial boundaries’ (Garland, 2001: 109). Echoing

Garland’s ideas, other authors consider that ’we are now observing a shift

from adjudication to administration’ (Mayerhofer, 2000: 111), and, I

would add, of justice in community and by community. Other analysts

appreciate that the ’network society’ (Castells: 2000) brought with it a

legal pluralism characterized by ’private regimes and neo-spontaneous

law’ (Teubner 2004: 71-86) and by a more negotiated procedure of conflict

resolution.

The changes that are the subject of a number of different studies and

research projects are occurring right before our eyes. An empirical

comparative analysis of the state of art in different legal systems and

legislative provision, from Asia to Europe and from America to Australia,

would undoubtedly observe, at a first glance, that almost everywhere

’reform’ is the all encompassing strategy under which the major changes in

the justice systems are undertaken. This strategy aims at a better quality of

justice and its is frequently closely connected to the implementation of

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non-adversial practices of conflict resolution and ’the institutionalization’

of alternative dispute resolution. For example, the Japanese Ministry of

Justice, 2 through its specialized agency, the Justice System Reform

Council (JSRC), suggested in 2004 that the following three issues were the

priority of the reform of the justice system: construction of a justice system

that meets the needs of the people; reform of the judicial community to

support the justice system and the establishment of a popular base

(participation of the general public in the justice system) should be the

main issues of reform. (…) During the 161st Diet Session (2004

Extraordinary Diet Session), a law related to ADR (alternative dispute

resolution) and other laws were enacted.’ In the United States of America

the work of Gordon Bazemore and Mara Schiff likewise illustrates the

pervasive role of restorative justice, in particular in the results of the five

year research project on juvenile justice reform (2005).

We see these changes also at work within Europe. Within the processes

opened by the Treaty of Amsterdam, aiming to build the European area of

Freedom, Justice and Security, both Member and candidate States have

been obliged to change and to adapt their national legislation in order to

improve acccess to justice, integrate provisions regarding the protection of

the victims of crimes,3 and also promote alternative dispute resolution.

According to the Directive of the European Parliament and of the Council

in 2004,4 access to justice ’should include promoting access to adequate

dispute resolution processes for individuals and business, and not just

2 The Japanese Minister of Justice (2004): Ensuring the results of justice system

reform take root http://www.moj.go.jp/ENGLISH/issues/issues01.html. 3 Council Directive: 2004/80/ECof 29 April 2004, relating to compensation to

crime victims. 4 The European Commission (2004) : Directive of the European Parliament and

of the Council on certain aspects of mediation in civil and commercial matters, COM (2004)718.

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access to the judicial system.’ . The concept of access to justice, especially

in the view of better protection of the victims of crimes, has also been

developed through the Belgian initiative to set up a European Network of

contact points for restorative justice. 5 The proposal emphasizes that

’restorative justice implies that the needs of the victims are prioritized.

Both material and immaterial reparation should be aimed at restoring the

balance between the victim and society.’

As noted, one of the effects of the ’deregularization of the modern world’

(Garland: 2001) can be observed at the level of the deep changes (reforms)

that the justice and legal systems are experiencing all over the world. For

the former communist countries in Central and Eastern Europe, one might

talk about a wider project of reform. This aims to establish, within the

framework of a multifaceted process, both the modern content of justice

and of a legal system (especially regarding the observance and protection

of human rights) and also the post-modern modalities of justice that are

rooted in civil society, cultural tradition and sometimes in the soft-law

procedures of conflict resolution practices. Consequently, reform in the

former communist countries is a double reform. This aims, first, at re-

building entire political and economic institutions (the modern reform).

Secondly it seks to restore trust among people, mainly by promoting less

formalised forms of social action and control; this is a part of a merely

post-modern project. Taking place in a time of deep social transformation,

these reforms have thus been simultaneously confronted with a set of

double range transformations: to democratise their life and also to (post)

5 Initiative of the Kingdom of Belgium with a view to adopting a Council

Decision setting up a European Network of national contact points for restorative justice [Official Journal C242 of 8.10.2002].

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modernise it in line with the major social movements and values in Europe

and the global society.

Based on the conclusions I have arrived at in my own reserch on the

process of reform, especially of the justice system (Balahur, Littlechild and

Smith, forthcoming), and also on results of other enquires carried out in

former communist countries, it becomes possible to appreciate that it is

only the synergy of the processes involved in the ‘double reform’ that

could bring about the radical changes that other countries passed through

over several hundreds of years. That is why any inquiry into alternative

conflict resolution in the former communist countries, regardless of the

label used, mediation, conciliation, arbitration, restorative practices,

ombudsman, and so on, is always part of a wider analysis that aims to

identify the main directions of the changes to both the institutional and

legal framework of these societies and to the everyday life of thoe people

and communities.

1 Legal Description

1.1 Legal base

1.1.1 Primary Legislation

(a) Some theoretical considerations

As an important facet of social transformation, the reform, of what I would

call the ways of doing justice in Romania, has been a lengthy process,

hindered by severe delays by comparison with other Eastern European

countries. As I have observed elsewhere, all of the major transformations

within the Romanian justice system have been the product of European

and international pressure (Balahur, 2004). Like these reactive strategies,

the existing regulations on alternative dispute resolution have been adopted

either within the framework of European integration or by virtue of the

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pressure of the Council of Europe and other international organizations. In

2002, those monitoring the EU Accession Process in respect of Romania’s

judicial capacity recommended to the Romanian Government and

Legislature the need ’to reduce the backlog of cases through improved case

management, including (...) introduction of alternative dispute resolution’

(Open Society Institute, 2002:.185). It was four years before an obligation

to use mediation became law.

Like other social-legal institutions, the development and implementation of

restorative justice practices in Romania could be analyzed from two linked

perspectives. One is a ’bottom-up’ perspective, that sees these practice

promoted by civil society and supported by academic groups; the other is a

’top-down’, in which they are framed by different policies and legal

regulation. It has often been the case that within a process of reform, the

Romanian authorities have agreed to changes in the administration of

justice that have developed, at least initially, without their influence.6 From

this point of view, Romania is not an exception. The introduction and

diffusion of alternative justice strategies in Romania followed the common

model identified in the countries of the European Union. Mestitz and

Ghetti observed that ’in judicial systems any reform is introduced top-

down through new norms, but VOM was almost always introduced by

spontaneous bottom-up processes promoted by social and professional

groups and/or movements’ (Mestitz and Ghetti, 2005: 17).

So far as penal law in Romania is concerned, both directions have been

closely connected mainly to the reform of the juvenile justice system.

6 It is the case of the alternative measures and strategies (probation) promoted

initially by a project implemented by the Social Alternative foundation in Iasi in partnership with the National Association of Magistrates (branch Iasi) and also the case of the Juvenile Courts promoted through a project by the same partners.

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Meanwhile, as the comparative analysis and research developed by the

European Forum for Restorative justice observes (Aertsen et al., 2004), the

need to improve and make visible the position of the victim within the

criminal justice system has also contributed to the promotion of alternative

dispute resolution practices under the form of restorative justice and

victim-offender mediation programmes.

At this point, I would like to make a brief distinction between restorative

justice and victim-offender mediation. Sometimes, the two concepts are

considered (or at least used) as if they were synonymous. I do not intend to

enter this debate here and now. I would like only to clarify the meaning of

the concepts that I will be using in this analysis. In a minimalist

conception, restorative justice may be understood a new way of looking at

criminal justice that focuses on repairing the harm done to people and

relationships rather than on punishing offenders (although restorative

justice does not preclude incarceration of offenders or other sanctions).

Originating in the 1970s as mediation between victims and offenders, in

the 1990s restorative justice broadened to include communities of care as

well, with victims' and offenders' families and friends participating in

collaborative processes called ’conferences’ and ’circles’ (McCold and

Wachtel, 2003). A maximalist conception considers restorative practices

as a way of (re)building ’the networks of the organized reciprocity and

civic solidarity’ (Putnam 1995: 20), and also ’community and democracy

or at least the competence to be democratic’ (Braithwaite 2002: 132). It

could also be seen, from a maximalist point of view, as a strategy for

’developing social capital (...) and civic participation through participatory

learning and decision making’ (Wachtel and McCold 2000: 118).

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Victim offender mediation is more specific. As an alternative to the

adversarial system of court-based conflict resolution it aims to repair

harms by means of interpersonal strategies supported and falcilited by a

third person (the mediator). Despite the fact that it could have (indirectly)

restorative effects, it represents merely a transfer of the ’transaction’ in the

civil law to the criminal conflict resolution, and to other types of conflicts

as well. VOM resonates with the minimalist approach to restorative justice,

an approximation to a court based resolution. However, both restorative

justice practice and victim–offender mediation could be seen on the same

continuum, having at one end the court system of dispute resolution and at

the other informal community based strategies for dealing with conflicts.

Between these two lies the wide variety of forms of alternative dispute

resolution that display, in different proportions, characteristics drawn from

both extremes.

(b) The legal framework

I will briefly review the principal legal framework that has been developed

in Romania to regulate the alternative forms of dispute resolution, either

under as restorative justice practices or as mediation. In short, there are

ADR provisions in civil and commercial matters (conciliation and

mediation), domestic violence (restorative justice), work relationships

(conciliation) and in criminal matters (victim-offender mediation).

Chronologically, the first step in the regulation of ADR in Romanian law

was made in 2000 through Government Ordinance nr.138 for the

completion of the Civil Procedural Code. This regulates in a newly

introduced Chapter XIV, Dispositions regarding the resolution of the

commercial conflicts, a compulsory procedure for conciliation. According

to art.720(1), ’in commercial matters (...) before making a legal

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complaint, the parties in conflict will try to resolve their litigation through

conciliation.’ Based on this disposition, the Romanian Chamber of

Commerce established an independent body, the Centre for the Mediation

of Commercial Disputes (CMCD) which, in May 2003 published Rules of

Mediation Procedure.

Since 2000 domestic violence against children and women has become a

priority closely associated with the reform of the child welfare system (see

Balahur 2001, 2007). In response to an important change of direction in

the promotion and protection of children’s rights, the law has ben

constantly adjusted in order to prevent and to curb abuse, neglect, and

violence against children and women. In particular, a new law regarding

domestic violence adopted in 2003 provides alternative ways of dealing

with conflicts among family members, emphasizing the potential role that

restorative justice could have for rebuilding their relationships. 7 For the

moment, this is the only legal regulation on which restorative programmes

and practice could be based.

Law nr.217/2003 regarding Domestic Violence provides, in Chapter V

(art.19-22), for mediation in cases of domestic violence.8 Article 19 states

that ’at the request of the parties, cases of domestic violence can be

referred to mediation. For this purpose the competent persons to deal with

such cases will counsel the parties.’ Conciliation in these cases may be

undertaken, according to art.20, either by a meeting of the family (the

Family Council) or by an authorised mediator. Article nr.21 in Law

217/2003 defines the Family Council as ‘an asociation without legal

7 Law nr,217/2003 Regarding the Prevention of Domestic Violence. 8 Monitorul Oficial Partea I nr. 367 din 29 mai 2003 (Oficial Monitor of

Romania, Part I in 29 of May, 2003).

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personality and patrimonial aim, formed by the family members who have

full legal capacity according to law.’ In fact law 217 combines two

different ADR practices: traditional mediation and family group

conferencing, though without calling it such. Nevertheless, the

conciliation provided for by this procedure, which involves the family

members in conflict and a family council can readily be recognised as a

variation on one of restorative justice’s core practices.

The initiative to run mediation through the family council belongs to one

of the famly members or to the familial social worker. In either case, Law

nr.217, art.20 (2) expressly states that the completed mediation procedure

does not affect the criminal trial. ADR research and evaluation typically

characterises this as ‘a double track approach’ as it meets restorative

values and principles but leaves open recourse to the formal trial. The law

on domestic violence does not however regulate mediation procedure nor

clearly specify who may be a mediator or which organizational body is

entitled to authorise the mediators.

It has often been remarked that a range of criminal justice initiatives have

become associated with restorative values and principles because of the

processes they use to respond to and repair the harm caused by crime. That

is so, for example, in the case of programs designed to provide services to

crime and trafficking victims, as they recover from the crime and proceed

through the criminal justice process.9 In Romania, two statutory provisions

have such restorative justice connections: law nr. 678/2001 (revised)

regarding the Prevention of the Trafficking of Human Beings,10 and law nr.

9 International Institute of Restorative justice,

http://www.restorativejustice.org/intro/ 10 Monitorul Oficial, Partea I, nr.783 din 11 decembrie 2001.

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211/2004 regarding the Protection of the Victims of Crimes. 11 Both

contemplate a duty to establish programs for free psychological

counselling and recovery from the crime or the trafficking, and the

provision of financial support and free legal assistance to engage the

criminal justice process. Although it does so indirectly, Article 13 in law

nr.211/2004 opens the possibility that crime and trafficking victims will

benefit from mediation services.12

(c) Legislative authority

In May 2006 the Romanian Parliament enacted the Law regarding the

Mediation and the Regulation of the Profession of Mediator. It was

adopted within the framework of the negotiations for accession to the EU

as part of the obligation to implement the acquis communautaire. This

new law is closely bound to the values and principles containd in the

various recommendations on restorative justice declared by the EU,13 the

Council of Europe,14 and the UNO.15 The Romanian legislator chose an all

encompassing legal framework within which the following matters are

regulated: the profession of mediator, the rights and responsibilities of the

mediator, mediation procedure, and the types of conflicts (civil,

commercial, family and criminal) that may be referred to mediation.

11 Monitorul Oficial , Partea I, nr.505 din 4 iunie, 2004. 12 Art.13 mentions that the victims of crimes and trafficking benefit also by the

protection measures regulated by the Law 217/2003 regarding the Prevention of Domestic Violence.

13 Council of European Union framework decision on the Standing of Victim in Criminal Proceedings adopted on 15th of March, 2001;Council of European Union Directive relating to Compensation to Crime Victims, adopted on 29th April 2004; A European Code of Conduct for Mediators launched at the Conference in Brussels , 2 July, 2004.

14 Council of Europe Recommendation Nr.R(99)19 on Mediation in Penal Matters.

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The two main purposes of the law of Mediation, as the Memorandum of

the Romanian Minister of Justice stated,16 is to promote ADR strategies in

order to better satisfy the interests of the parties and to reduce the numbers

of cases that with which the courts have to deal. The Memorandum also

affirms the obligation to harmonize Romanain law with the relevant ADR

European standards and regulations..

(d) Mediation: definition and general conditions

The Romanian law of mediation does not have an explicit philosophy,

aiming merely to legitimize and empower existing practice and the

mediators’ profession. Of the seven chapters of the law, five are focused

on the regulation of the profession, mediators’ rights and obligations, and

the legal and educational qualifications required to become a mediator. An

attempt to integrate it within current ADR conceptions shows that it falls

within a narrow minimalist approach far removed from the values and

aims of restorative justice, but close to the values of traditional court

procedure. The law deliberately avoids reference to any notions of healing

or of the the reparation of the harm. The section in Article 66 that deals

with mediation in family matters states that ’…during the mediation

procedure, the mediator will determine whether there is between the

parties an abusive or violent relationship and if so, whether the effects of

such a relationship could influence the mediation, and will decide, if under

such circumstances, mediation is appropriate or not.’ My question is, if

the parties do not have a such a relationship, which is by defintion almost

inevitable in these cases, what is left that is amenable to mediation?

15 UNO, Economic and Social Council, Basic Principles on the Use of

Restorative justice Programmes in Criminal Matters, July, 2002. 16 Romanian Ministry of Justice, http://www.just.ro.

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Chapter 1 of Article 1 defines mediation as ’an optional way of informal

conflict resolution with the support of a third person as mediator, within

the conditions of neutrality, impartiality and confidentiality (....).

Mediation represents an activity in which there is a public interest. In the

exercise of their competencies, mediators do not have the power to decide

the content of the agreement that the parties will reach, but they can

counsel them to check its legality according to the procedures set up by

Article 59.17 So defined, mediation is an alternative to the court system for

civil, commercial, family and criminal proceedings. According Article 2,

consumer protection matters, such as personal injury or property damage

caused by faulty products or services, or otherwise by breach of the

contractual terms, can also be referred to mediation.

As a general proposition, the law provides for a wide range of disputes to

be referred to mediation. Both legal and natural persons have the right

(art.4 (3)) to resolve their disputes through mediation, both outside and

within the compulsory procedures of the informal resolution procedure that

the law envisages. They may also decide to refer the case to mediation

even where the trial has begun. Such provisions could have an substantial

impact on the courts’ case loads, so contributing not only to the

implementation of ADR but also to the increase in the quality of the justice

that is provided by the formal justice system. However, personal rights

and any other rights from which the parties are not legally entitled to . give

up to (the right to legal personality, to identity, image etc) cannot

constitute the object of mediation.

17 According to Article 59, the agreement at which the parties arrive can be

submitted for checking either to the public notary in order to authenticate it or to the court for approval.

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A core value of mediation is the equal treatment of and non-discrimination

between the parties during the entire process. Article 6 provides thst the

obligation to acknowledge the possibility that the parties may refer their

dispute to mediation rests with the judicial and arbitration bodies. They are

in addition required to advise the parties to consider the possibility.

(d) Legal conditions, education and recruitment of mediators.

Unlike legislation in other European jurisdictions (Miers and Willemsens

2004; Mestitz and Ghetti 2005), the Romanian law on mediation provides

that several conditions must all be met by those who wish to be authorized

as mediators. These are (Article 7): (a) full legal capacity; (b) a degree;

(c) at least 5 years’ professional experience; (d) no medical condition that

would compromise the applicant’s ability to conduct mediation; (e) no

criminal record and a a good reputation; (f) completion of the training

courses for mediators and (g) is authorized as mediator according to thse

provisions.

In their overview and comparison of VOM in 15 European countries,

Mestitz and Ghetti noticed a major trend to recruit qualified experienced

mediators and to provide for more or less short training periods. A second

minor orientation was the recruitment of both inexperienced mediators and

experienced professionals who are often employed as social workers in

public services (Mestitz and Ghetti 2005: 15). The Romanian law lies

between these two general European trends. As a general condition

mediators need to have a higher education degree. The professionalization

is acquired through the training courses delivered by specialized providers

of education, themselves licensed according to law (art.9). Authorized

mediators are registered by the Council of Mediation on the list of the

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official mediators. The list is published in the Official Monitor of

Romania, Part I.

(e) Mediators’ activities, rights and responsibilities

Unlike other European countries the Romanian law on mediation is

focused mainly on the regulation of the status of the profession of

mediator. It regulates in a special chapter mediators’ rights and

responsibilities. Among their most important rights are the right to inform

the public about the mediator’s activity, with due respect to the principle of

confidentiality, and the right to seek an honorarium, negotiated and

decided together with the parties, and also to have their expenses

reimbursed (art.26). The law also provides that the parties are obliged to

pay the mediator’s honorarium and expenses, even where the mediation

fails to reach an agreement or when the parties abandon the process before

it is completed. In this last case the parties are obliged to pay a pro rata

sum, taking into consideration, if need be, their own financial position

(art.46 (f)).

Provisions of this kind raise, in my opinion, important questions regarding

access to justice. If mediation is paid for by the parties, it will be, from the

outset, a service provided only to those who can afford it, and probably a

preferred strategy to avoid the court and its sanctions. In commercial or

civil conflicts, why should the parties prefer mediation where they have at

their disposal the conclilation and arbitration procedures and also an

informal procedure even during the trial in court (transaction). Why would

a family that is experiencing difficulties in its members’ relationships with

one another pay for a mediator instead of a therapist, whose own

specialism might generate a better (more cost – effective) outcome. And

Law 217/2003, which provides for restorative justice delivered by the

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family council in cses of domestic violence, could equally prove more

efficient and definitely less costly. Similarly in criminal matters, it is

difficult to find any advantage in paid mediation to the court system, save

the suspect’s desire to escape the criminal sanction.

This arrangement, whereby the cost of mediation is paid for by the parties,

especially in criminal and family matters, appears to be unique in Europe.

The European Forum for Restorative Justice’s publication, Mapping

Restorative Justice: Developments in 25 European Countries (Miers and

Willemsens 2004) showed that in the countries analyzed, mediation in

criminal cases is financed mainly from public sources, by the Ministry of

Justice, Public Prosecutor, and local government (for example, Spain,

Belgium, Italy, Luxembourg, Finland, the Netherlands). In Poland the state

pays a fix amount per case.

Among their professional obligations, mediators are required to ensure that

the parties understand the procedure in which they will be involved,

togther with the limits and the effects of the mediation (art.29). They are

required to be diligent and to support the parties in arriving at a mutually

advantageous agreement. Mediators have to ensure both their impartiality

and a state of ’permanent equilibrium’ between the parties (art.30). The

law also imposes a duty of confidentiality regarding the information and

the documents that the mediator has received during the process. At the

same time, mediators cannot be called as witnesses regarding the facts they

have learned during the mediation (art, 32 and 37 (1)). As an exception to

this rule, in criminal matters, the mediator can be a witness, but only if the

parties agreed to this in writing at the outset, and, if need be, of the other

people involved in mediation procedure (art.37). However, mediators are

liable to be witnesses in respect of any facts of which they became aware

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before becoming a mediator in the specific case.(art.37 (2)). All in all, the

obligation of confidentiality is weak as long as the sanction for its

infringement is disciplinary liability. For Romania especially, as a

corporate society, and charactised by a generalized corruption, the

weakness of the duty of confidentiality could raise serious problems.

Mediators are liable for their conduct during the mediation. Article 38

specifies a number of matters that may give rise to disciplinary liability: (a)

breach of the duty confidentiality; (b) refusal to answer to the judicial

authorities in cases regulated by law; (c) refusal to return the documents

provided by the parties; (d) representation of one of the parties within a

judicial or arbitration procedure dealing with the same matter as the case

under mediation; (e) other conduct that could infringe professional ethics.

The disciplinary sanctions vary according to gravity of the infringement,

from written warnings, fines from 50 – 500 lei (Euro 14-139), to the

temporary (one to six months) or permanent withdrawal of the mediator’s

authority (art.39).

(e) The mediation procedure

The mediation procedure has, according to law, four stages. The first, the

preliminary procedure, takes place before the mediation contract is

concluded. It aims to bring the parties within the mediation procedure, to

ask for a mediator’s services. When only one party asks for mediation

services, the mediator will, at that party’s request, invite the other to

participate. The letter of invitation will establish a term of maximum 15

days within which to accept. If the other party explicitly refuses the

invitation or does not sign the contract after having been invited twice, the

offer of mediation is considered unaccepted and the process is closed

(art.43 (1), (2) (3)). While it insists on the voluntarily nature of mediation,

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the law nevertheless provides that mediators may make any other legal

approach that they consider useful for inviting the parties to the mediation

process, while properly oberving the other provisions governing its use

(art.43 (4)).

The mediation process cannot be carried out before the contract has been

signed by the parties. The conclusion of the mediation contract, which

must be in written form, constitutes the second stage. The contract must

specify a number of matters, subject to absolute nullification if it does not.

These are the identity of the parties; the subject matter of the dispute; the

mediator’s obligation to explain to them the principles, the effects and the

rules of mediation; the parties’ declaration that they freely accept the

mediation; their agreement to respect the rules of mediation; their

obligation to pay the honorarium and the expenses occasioned by the

mediation procedure; and their agreement regarding the language in which

the mediation will be carried out (art.45). The contract has to be

concluded according to law.

Once the contract is concluded, the third phase, the mediation activity, can

begin. By Article 50(1) the mediation process is based on the parties’co-

operation and on the special communication and negotiation techniques

and methods used by the mediator. The parties have the right to be assisted

by a lawyer (or by others), and cannot have a solution imposed on them by

the mediator. Developed as an analogue to court procedure, the process

resembles an informal trial. Article 55, for example, provides that where

the matter gives rise to difficult or controversial legal issues, the mediator,

having obtained the parties’ agreement, may ask for the point of view of an

expert in the field. The mediation process is so deeply embedded in the

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model of court procedure that it is almost impossible to adopt a different

perspective on its place in Romanian law.

The fourth and final stage is the closing procedure. This requires one of the

following conditions (art.56): the concluding of an agreement between the

parties as a result of the mediation, or its failure as a result of one of the

parties’ withdrawal. Whatever the reason is, the mediator must write a

note that is signed by the parties or their representatives, and by him. The

agreement that the parties have arrived at has must also be written. It must

register all the matters agreed between them, and be signed by them. It can

be submitted either to the public notary for authentication or to the court

for approval (art. 59).

1.2 Scope

Beyond its general provisions that are common to all types of mediation,

Chapter VI (art.64-70) makes special provision for the mediation of the

conflcts in two areas: family, and criminal proceedings.

1.2.1 Special provisions regarding mediation in family disputes

As noted, ADR in family disputes already exists, holding out the

possibility of restorative justice, reconciliation and the rebuilding of the

couple’s relationship.

In practice, mediation in family disputes, as it is now constructed, could

obviate divorce proceedings in court. The potential breakdown of the

marriage could be addressed through mediation, as could the exercise of

the husband’s and wife’s parental rights, decisions concerning the care of

any children and the contribution to their maintenance, and any other

matters between the husband and wife regarding the rights they can

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dispose according to law, for example concerning the matrimonial home

(art.64). The parties submit the divorce agreement to the court which has

jurisdiction formally to order the divorce.

Where there are children of the marriage, the mediation agreement should

not contravene to their best interests; for this purpose Article 66 requires

the mediator to encourage the partiess to focus mainly on their children’s

needs. But this provides no formal guarantee that their best interests will

be observed, either during the mediation procedure or after it. The formal

procedure described in the Family Code envisages a simple procedure

appropriate for couples married for more than one year and without

children (article 38). For couples who have children, the procedure is

different, and a first step that the the court takes (through a special,

emergency procedure) is to decide to whom the child(ren) should be

placed during the divorce.

There have been many voices that have called for divorce to be returned to

the civil law, as it is a contract. This is partly right, as marriage is an

agreement with obligations on each party, but it ignores the UN

Convention on Children’s Rights and more recently the jurisprudence of

the European Court of Human Rights, that children’s rights are superior to

adults’rights, and must be observed and protected by law. Consequently, if

the married couple have children, divorce procedure, whether through

mediation or in court, should contain sufficiently strong safeguards that

provide real protection for the rights of the child. This is not the case with

the provisions in art.65 in Romanian law of mediation.

1.2.2 Mediation in criminal matters

21

Article 68(2) makes it clear that the parties (victim and offender) cannot be

forced into a mediated agreement. The law also contemplates that legal

safeguards should apply to mediation (art.72(2)): the parties have a right to

legal assistance and also, if need be, to benefit from translation services

(art.68(1)).

The provisions regarding mediation are equally applicable to crimes for

which the reconciliation of the parties withdraws criminal liability (art.67).

This follows from Article 279 of the Romanian Code of Penal Procedure

(C.p.p), which provides that for certain types of crimes18 , the charge and

prosecution depend on victim’s preliminary complaint. In these cases, the

reconcilliation of the victim and offender before the matter omes to court

has a diversionary effect. All these types of crimes can be referred to

mediation.

Regarding its effect, the law provides that when the mediation procedure

takes place and is completed before the beginning of the trial, the mediated

agreement (art.69(1)) between the victim and offender precludes either

prosecution or trial with respect to the same facts (according to a

fundamental principle of criminal law – ne bis in idem). According to

Article 70(1), when the mediation takes place after the criminal process

has begun and the parties provide a copy of the mediation contract, the

prosecution or the trial are suspended. This suspension subsists until the

mediation has come to an agreement, but no more than three months from

the date on which the contract was signed. If they do not reach an

agreement within that period, the prosecution or the trial resumes (art.70

(2) and (4)).

18 Battery (art.180, Penal Code); Threat (art.193, Penal Code); Theft between husband an wife or between close relatives (art.210, Penal Code) etc.

22

The law includes a general provision regarding mediation with children

suspected of committing criminal offences. Article 68(2) requires that the

legal safeguards that have to be guaranted to children during crimnal

proceedings have also to be assured within the mediation procedure.

1.3 Organizational Arrangements

The comparative analysis and research conducted within the European

Cooperation in the Field of Scientific and Technical Research COST A21,

Restorative Justice Developments in Europe and within the European

Forum for Restorative Justice (Aertsen, 2006; Mestitz and Ghetti 2005,

Miers and Willemsens 2004, Pelikan, 2004, Wright, 2002) reveals the

variety of the organizational and procedural arrangements for mediation

within Europe. Mestitz and Ghetti (2005: 17), commenting on victim-

offender mediation with youth offenders in Europe, remarked on three

primary features:

a. VOM is mainly an ’in-court’ or ‘near-court’ procedure with the

exception of Anglo-Saxon and (partly) Scandinavian countries, where

VOM is an ‘out of court’ strategy

b. In continental and Southerm Europe there is a strong orientation to

organize VOM as a public service, whereas in England and Wales and

in Northern European countries private / volunteer services and groups

are prefrred;

c. Volunteer mediators prevail in Anglo-Saxon and Northern European

countries, and professional mediators in continental and Southern

Europe.

Based on their taxonomy it may be observed that the Romanian

organizational arrangements while sharing some common features with the

main traditions developed in other European countries, also display some

23

important original features. Mediation in Romania is organized as an

activity that is a matter that falls within the public interest (art.4(1)), but

which is delivered by private mediators and paid for by the parties.

The draft of law on mediation that was submitted to the Romanian

Parliament provided that it could be organized both by public and private

bodies and also by private persons, authorized according to law. This

proposal ws removed from the enacted law. Instead, the law envisages in

Article 22 that the mediators undertake the activity within the context of a

professional civil society, defined as a co-operative arangement in which

one or several associated mediators work together with technical staff, 19 or

under the auspices of a nongovernmental organization. The result is that

according to Romanian law mediation is generally possible only under

private arrangements. Mediators may also establish local or national

professional associations in order to promote their professional interests,

and can also become affiliated to professional international organizations

(art.24).

The mediation law established a national body with legal personality, The

Council of Mediation, whose main purpose is to ensure the promotion of

mediation and the representation of mediators’ interests. The Council

comprises nine members, elected by and from authorized mediators.

Council members are approved by the Ministry of Justice for a two year

term (art.17). The Council is also responsible for the authorization of

mediators and for establishing standards for professional training in

mediation. It has adopted a Code of Ethics and of professional conduct.

Its activities are self-financing. It raises funds from the authorization fees,

19 These kinds of societies may be established under the regulations of the Civil

Code, Chapter V, Title VIII, About the Contract of Society.’

24

donations, sponsorships, sales of its publications, fines applied as

disciplinary sanctions, and from any other legal source (art.21).

2 An Analytical Account off the Political and Legal

Understanding of VOM / RJ

The Minister of Justice’s Memorandum that accompanied the draft law of

mediation as presented to the Romanian Parliament identified a number of

reasons why a statutory text on ADR was both necessary and desirable. It

emphasised that mediation had become one of the priorities in he reform of

the Romanian justice system. As an alternative to the traditional, formal

resolution of conflicts, mediation was better adapted to the new dynamics

of social and economic life and to a wide variety of conflicts and problems

(for example, domestic violence, and work relationships, civil and

commercial contracts). Closely connected to arbitration, reconciliation and

the informal resolution of conflicts, mediation could also relieve the courts

of a substantial number of the cases with which they would otherwise have

to deal. As an alternative to the formal disposition of disputes, it was also

argued that mediation better satisfies the interests and expectations of the

parties in conflict; it saves time, is less stressful and less expensive than

conventional justice. Finally, the Memorandum paid special attention to

European standards, emphasising that the overall project met the

obligations on Romania to harmonise it legislation with the acquis

communautaire in order to substantiate its accession credentials on access

to justice.

2.1 The social and political history within which RJ / VOM was

developed

The law on mediation does not exist in a vacuum. It was enacted after

almost a decade of join efforts by academic researchers (D.Balahur,

25

S.Poledna, P.Abraham, S.Radulescu, D.Banciu, M.Alexiu, I.Durnescu) and

civil society (The Association of Magistrates, Iasi branch, Social

Alternatives Association, Iasi) to implement alternative diversion strategies

and measures in the juvenile and in the criminal justice systems. These

efforts and their outcomes are described in a report of the Department for

Foreign International Development (DFID / UK funded project conducted

by a team of British and Romanian researchers, judges, prosecutors and

others to implement such alternatives in the Romanian justice system

(Balahur 2004). An extension of this project promoted a VOM pilot

experiment (in Bucharest and Craiova) during 2002-04. Research on an

experimental project in which restorative justice practices were applied to

cases of juvenile offending was carried out in 2004-2005 (Balahur,

CNCSIS project). Other projects that generate synergy with these have

been undertaken in recent years. For example, in 2001 the National

Association of the Magistrates and the Association for Social Alternatives

focused their attention on the setting up of the juvenile courts.

Taken together, these incremental steps, carried out over the past decade,

combined to support a powerful movement for the reform of the juvenile

justice system. Shared by civil society and the academic and legal

professional communities, this movement pressed for the implementation

of diversion and ADR strategies in juvenile cases. This pressure had an

important effect on the legislative process.20 It contributed to profound

changes to the existing legal framework and to the introduction of

legislative initiatives, albeit they were set within laws that were themselves 20 Important changes to the Penal Code and the Penal Procedures Code include

widening the range of non-custodial criminal sanctions and of the diversionary strategies. Changes in the Civil Code made reconciliation procedure compulsory in any commercial matters. The adoption of special laws, such as

26

often designed to support and to legitimise an already existing practice.

The law of mediation can also be seen as an outcome of the pressure

generated by this reform movement.

2.2 The legal culture

In order to understand legal change it is necessary to understand how

social change impacts on a legal culture. Social change depends in part on

changes in the relevant social actors’ critical reflexivity about the traditions

that they have inherited and now are charged to maintain. Attempts, for

example, to harmonise the criminal and juvenile justice systems will

inevitably be tentative, and will depend on the values to which social

actors, which includes both officials and private indoviduals, make sense

of these changes through their personal choices and their professional

practices. As David Garland pertinently emphasized, ‘The consciousness

of these actors, the categories and styles of reasoning with which they

think and the values and sensibilities that guide their choice – is therefore a

key element in the production of change and the reproduction of routine,

and must be a major focus of a study of this kind’ (Garland 2000: 24). (of

structural changes and reforms; n.n. D.B).

The steps taken on the route to reform can be understood if one starts from

the peculiarities of the Romanian criminal justice system of the ‘1990s,

which was deeply structured around the values of over-retribution (Balahur

2004). The common penal practice of that time could be briefly

characterized as a presumed ’penal route’ to which there were few

exceptions. The diagnosis, a young prosecutor made, in an interview

conducted in 2003, is illustrative of the state of the Romanian criminal

the Children Act 272/2004, which regulates special provisions for the child in conflict with criminal law, contains important diversionary effects.

27

justice system, at least until recently. ’Romanian criminal justice system

does not re-socialize’, he observed, ’it is so regulated and organized, and

so only amplifies the criminal behaviour.’ The main barriers to change

are due to the organizational culture and the values of the justice system’s

institutions combined with the culture and the retributive philosophy of

punishment of the Romanian criminal law and practice in which

prosecutors are educated..

Even so, there has ben a gradual change in the mind-set of those actors

whose consent is a precondition to change. This is directly noticeable in

the development of a critique that brought into open debate a series of

options in penal law and practice that had earlier been ’taboo’. This

critique challenged the received and hitherto unquestioned wisdom, that

once a person has entered the criminal justice system, he passes from one

stage to another without any chance of some diversion from a path that

requires completion of a sentence that itself demands the deprivation of

liberty. By contrast, consider the (paraphrased) words of a judge from the

juvenile court in Iasi spoken in 2006:

The integration of restorative justice practice could contribute to the

release of the courts from the excessive number of files and cases; it

should also be noted that, especially for crimes prosecuted on the

preliminary complaint of the victim, the parties are not correctly or

not at all informed about the consequences of a penal trial both for

the victim and the offender (expense, time, possible penal sanctions

for the offender, fines for the victim if he/she refuses without good

cause to attend court etc). For juvenile justice, restorative justice is

of special interest, as it could considerably reduce the number of

children and young offenders sentenced with custodial measures or

punishments for petty crimes, which do not necessarily represent the

28

right reparation for the offence. Instead, the juvenile justice system

opens the inevitable route of a penal system which does not offer too

many alternatives regarding youth offenders. Restorative justice

practices could provide more satisfaction to the victim if the

offender provides the right reparation and empathizes with his/her

suffering. This alternative way to the trial in court could also, in my

opinion, prevent re-offending and recidivism..

3 An Evaluation of Practice

3.1 The degree to which the country’s legal provisions meet

supranational standards

As noted, the entire project incorporating the law of mediation and the

other changes to the Romanian legal system have been promoted within

the framework of European integration and the reform of the justice

system. These changes aim to meet the obligation to harmonise Romanian

legislation with the acquis communautaire on these matters. They also

seek to comply with the standards established by the Council of Europe

and the UN in the field of crime victims’ protection, mediation in penal

matters, and basic principles on the use of restorative justice programmes

in criminal matters.

3.2 An evaluation of the extent, to which the implementation of

these legal provisions advance, inhibit or orient the

implementation of a VOM / RJ agenda.

The law of mediation is no exception to the observation that the reform of

the justice system was promoted by pressures generated within civil

society and by international norms. The law legitimised the existing

informal practice that had been developed by various private agencies. It

29

also addressed the conditions for accession to the European Union that

required improvement in the quality of the administration of justice,

especially through the improvement of case management, a reduction in

the backlog of cases and the implementation of alternative dispute

resolution.

Caseloads grew constantly during the 1990s. If in 1990 1,513 judges had

589,660 files (civil and criminal cases) with a caseload of 390 files per

judge, in 2003, 3,557 judges had 1,453,776 files, with a caseload per judge

of 409 files.i Under these circumstances, the effectiveness of the justice

system was among the lowest in Europe, constantly monitored by the

European Commission. The problems with which the formal system of

justice is confronted have been aggravated by institutionally endemic

corruption. It is therefore unsurprising that the level of trust that

Romanians have of the justice system is also one of the lowest in Europe

and is the lowest in the hierarchy of Romanian national institutions, as the

chart below shows.21

30

The institutionalisation of mediation could, potentially, contribute to a

decrease in the number of cases to be heard by the courts, and thus to

speedier justice. But its potential is constrained by the fact that the

Romanian approach is to require the parties to pay for the mediation that

they receive. Equally, the evidence of the public’s low level of trust in

national institutions, in particular in the courts, does not inspire any

confidence that matters will quickly improve. It may be that we can be

confident only the public’s low expectations about what the justice system

can achieve for them will be fully met.

21 According to the national pool data published by the Centre for Urban and

Regional Sociology (CURS), www.curs.ro, Decembre, 2005.

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Karstedt, S., and K.Bussmann., Social Dynamics of Crime and Control, Oxford, Hart Publishing, 2000. Ladeur, K. H., Public Governance in the Age of Globalization, Aldershot, Ashgate, 2004. Mayerhofer, W. L., After the Welfare State in S.Karstedt and Bussmann K, Social Dynamics of Crime and Control, Oxforr, Hart Publishing, 2000. McCold.P, and Wachtel, T., In pursuit of paradigm: A theory of restorative justice. Paper presented at the XIII World Congress of Criminology, Rio de Janeiro, Brazil. http://www.realjustice.org/library/paradigm.html, 2003. Mestitz, A and S.Ghetti., Victim-Offender Mediation with Youth Offenders. An overview and comparison of 15 countries, Springer, 2005. Miers, D and J.Willemsen (Eds)., Mapping the Restorative justice. Developments in 25 European Countries, European Forum for Restorative justice, 2004. Open Society Institute , EU Accession Monitoring Program , Monitoring the EU Accession Process: Judicial Capacity, Budapest, Q.E.D Publishing, 2002. Putnam, R., Bowling Alone, Revisited in The Responsive Community. Rights and Responsibilities, Vol.5, Issue 2, 1995. Teubner, G., Global Private Regimes: Neospontaneous Law and Dual Constitution in K.H. Ladeur, Public Governance in the Age of Globalization, Ashgate, 2004. Waitekamp, E, H.J.Kerner., Restorative justice in Context. International Prcatice and Directions, Devon, Willan Publishing, 2003. Wachtel, T and P.McCold., Restorative justice in everyday life in John Braithwaite and Heather Starang (Eds.) Restorativr Justice in civil society. New York, Cambridge University Press, 2000. Wright, M., Justice for Victims and Offenders. A Restorative Response to Crime, Winchester, Waterside Press, 2002.