The Mediation Centre of the Chamber of Commerce and Industry of the Republic of Moldova (“the Mediation Centre”) handles all administrative matters in relation to the National Court-Annexed Mediation Service. It is registered as an official mediation centre by the Mediation Council, pursuant to the Mediation Law of Moldova.
Which Courts?
The extra-judicial mediation programme applies to Courts of First Instance and the Courts of Appeal.
Information on Mediation
A full range of promotional materials will be available for each court to publicise the mediation service. This will include posters and informational pamphlets as well a display for the television monitors in the courts. These will explain mediation and how the parties can initiate a mediation process by contacting the Mediation Centre.
Information on the mediation service will be included in the information sent to parties in the initial court summons, and each court will have a designated staff member who will act as its mediation liaison person.
Before the preliminary hearing, or before the date of any subsequent hearings where the parties request to try mediation, the parties together or separately may call the Mediation Centre and speak to a case manager who will explain the mediation process, the content of the mediation agreement, the basis of the mediation fee and payment terms. If a party prefers, the Mediation Centre can arrange for one of its local mediators to meet with one or both parties at the nearest regional office of the Chamber of Commerce and Industry.
Where one party has agreed to mediation but the other has not, the Mediation Centre may approach the other party.
If both parties agree to try mediation, and providing they agree within 30 days of the date of the judicial order inviting the parties to mediate, they will confirm this to the Mediation Centre who, in turn, will inform the Court. The limitation period will be paused from the date the parties confirm their agreement to try mediation.
Outline Process of Administering the Programme
The diagram below provides an overview of the broad stages of the administrative process:
- Judges screen cases amenable to mediation
- Establish clent requirements
- Contact parties
- Create case record
- If the parties have agreed to participate then a preliminary briefing is held. And names referred to ADR Centre
- Make logistical arrangements
- Confimr to clients and mediator
- If there is a resolution then the court is informed
- If there is no resolution the case continues through the normal court process
Case Documentation necessary for the mediation
If the parties agree to mediation, the Mediation Centre will request copies of key case documents from the parties directly.
Appointment of the Mediator
Only trained mediators, registered by the Mediation Council pursuant to the Mediation Law, will be engaged by the Mediation Centre in order to ensure a high quality of service to disputants and ensure the mediation programme is successful in resolving disputes. The majority of mediators will be legally trained and include a wide range of specialisms.
As a national service, the Mediation Centre will maintain regional panels (North, Central and South) in order to ensure mediators from the regions are being appointed to mediations taking place in courts within that region.
The Mediation Centre will suggest to the parties the name of a mediator to be appointed to their case who is available on the day scheduled for the mediation (see below) and selected on a rotation basis from the relevant regional panel. If either party object to the named mediator then the Mediation Centre will suggest another mediator.
Mediation Fee
A fee of 2% of the claim/counterclaim, whichever is the higher, will be collected by the Mediation Centre from the parties to the mediation. 70% of the fee charged to the parties will be paid to the mediator with 30% retained by the Mediation Centre. If the matter is unquantifiable, the Mediation Centre will consider the details of the case and confirm the likely fee at the time of referral.
Mediation Process
The following summarises the key administrative steps:
- Mediation time-frame
Once a mediation date and mediator are agreed by the parties the Mediation Centre will inform the mediation liaison of the relevant court.
Mediation sessions should take place within 60 days of the agreement to mediate (with a possible 30 day extension). If mediation is not completed within this period then the Mediation Centre will notify the court and the matter will be sent back to the trial judge, unless the parties agree otherwise.
- Time from referral to acceptance by the parties
Pursuant to the Mediation Law, parties have 15 days to reply from the time an invitation to mediate was sent to the parties to agree to mediate. Following this, if no agreement is reached to mediate then the Mediation Centre will notify the court that the mediation will not proceed.
- The length of each session
Each session will normally be limited to 3 to 4 hours. This will also allow mediators to use time limits to their advantage.
- Number of sessions allowed
The number of sessions is not limited and will be at the discretion of the mediator. However, any subsequent sessions should be scheduled only after consultation with the Mediation Centre case manager and court liaison person about available time slots.
- Mediation location
It is preferred that mediations take place at offices set aside at the relevant court, as required by the decree of the Superior Council of Magistracy. The Mediation Centre will contact the mediation liaison person at the relevant court in order to book a room for the mediation to take place. If there are no rooms available at the relevant court, the Mediation Centre may look to use rooms in the regional offices of the Chamber of Commerce or other suitable venue.
- Setting date and time of mediation
The Mediation Centre will liaise with the court in relation to availability of the rooms at the court for the mediation to take place, and will then set the date and time of the mediation
- Documentation required
Court documents will be supplied by the parties to the mediator. A simple mediation agreement will be drafted by the Mediation Centre. This will be given to the mediator for signing on the day by the parties before the start of the first session of the mediation.
In order to protect confidentiality, the Mediation Centre will also be a party to the mediation agreement in order that the Mediation Centre is also covered by the confidentiality obligations of the process.
- Ending mediation – enforceability
Any settlement agreement reached through mediation will be sent along with a mediation report by the Mediation Centre to the court. The court will then follow its processes to formalise the agreement into a consent decree and to formally end the mediation process.
- Non-settlement
Where a case does not settle, a mediation report recording this fact will be completed by the mediator who will send it to the Mediation Centre. The Mediation Centre will then inform the court that the mediation process has not been successful and the process has ended.
Conclusion and enforcement of settlement agreements
Under the National Court-Annexed Mediation Service, where the parties reach a resolution of their dispute, the terms of resolution will be written down in a settlement agreement and sent to the court to formalise the agreement into a consent decree. (See Ending mediation – Enforcecability in Administration Process of the National Court-Annexed Mediation Service in Appendix 2)
What benefits does mediation offer over litigation and arbitration?
- Control – The parties to the dispute retain in ultimate control over the process and any outcomes.
- Focus – The mediator can diffuse adversarial positions and inject pragmatism into discussions between the parties and keep negotiation on track.
- Flexibility – Mediation can be designed to suit the specific needs of the parties and their particular dispute.
- Speed – Mediations can be arranged and conducted in a matter of weeks or days.
- Cost – Compared to arbitration or litigation processes, mediation is a less expensive route to resolving disputes. Even unsuccessful mediations may focus the dispute and decrease future resolution costs.
- Communication – Parties have a chance to explain their respective sides of the dispute in a safe environment, increasing understanding and allowing for more comprehensive resolutions.
- Preserving relationships – Where more adversarial dispute resolution processes may result in permanent damage to personal and professional relationships, mediation seeks to preserve these ties with guided negotiated solutions.
- Confidentiality – Parties may choose to publicise the outcomes, or keep the entire procedure private.
- Timing – Mediation may be used at any time before or during litigation or arbitration proceedings which be stayed to allow for a mediation to take place. The parties’ legal rights remain intact.
