The changes in the Mediation Act published in the Bulgarian Official Gazette on 2 February 2023, which will come into force on 1 June 2024. The new Chapter 6 mediation in pending cases.
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With the publication of the changes in the Mediation Act, mediation in cases pending in the courts is regulated in Bulgaria. In article 20 the following requirements are implied: the mediator must be registered in the register of mediators at the Ministry of Justice, be a lawyer and have an additional training according to a future Regulation adopted, on the basis of article 25 of the law, by the Supreme Judicial Council.
In Europe mediators are not only lawyers but also people from other professions: psychologists, educationalists, engineers. The mediation procedure can be carried out outside the courts (conventional mediation) and also, it can be carried out during a legal procedure. This is called judicial mediation. Both mediation procedures are confidential, informal and have the same goal: that the parties with the help of a qualified mediator find the best solution to the dispute, after having established the source of the disagreement, having calmed the emotions, and having established the interests of the parties.
In the mediation centres in Europe, established in the courts, there are mediators who are psychologists and pedagogues in the field of family law, property law, in disputes between spouses, between parents and children, between relatives, neighbours. Commediation is practiced, which is the participation of two mediators from one or two different professional fields. Mediation becomes even more effective as each specialist focuses on different sides of the conflict. In Germany there is a special feature - in the courts there are panels of judges who are mediators in a specific dispute.
In most cases in Europe, both in court mediation and in conventional mediation, there is a neutral party involved: this is the mediator who can be a lawyer or a person from another profession - for example in France, Belgium, Spain. The participation of lawyers in the mediation procedure represents a guarantee that takes into account the legal aspects of the dispute and gives the parties the possibility to formulate their future agreement.
The change in the law on mediation in Bulgaria which creates a requirement only for lawyer-mediators in future mediation centres in courts:
1. In the first place, do not take into account that in Bulgaria judges cannot be mediators,
2. Such a restriction is discriminatory since it limits people from exercising the same profession - that of the mediator,
3. Such a restriction is not proportional since it is not motivated by any social requirement. On the contrary - the social interest shows a need for mediators trained in different professional spheres.
4. Such a regulation ignores the contribution of certified mediators in the centres that exist in the courts and thanks to which mediation has been developed in the country.
For this reason I share the opinion of Judge Peter Osten from Germany, former president of GEMME: "It is a pity that the existence of such a restriction in the Bulgarian law is in conflict with article 15 of the Charter of Fundamental Rights of the European Union."
Judge Sylvie Frankignul, president of the Belgian section of GEMME, said that the participation of a psychologist in the family court in Belgium is of paramount importance.
Mrs. Hélène Abelson Gebhard from France thinks that "it is as if the bar associations want to establish a monopoly on the mediation market and to exclude mediators who are not lawyers".
I find that such a decision of the legislator involved in the Bulgarian Mediation Act, namely, only lawyer mediators in court mediations is not in the interest of the litigants for a maximum care of their interests and for a better understanding of their problems.
It is a pity that some of the Bulgarian bars do not accept the idea of having a compulsory first meeting with a mediator during the civil procedure. I have in view the position of the Supreme Council of Bulgarian Bars on the draft law for the change of the mediation law. Probably it is a question of a misunderstanding of the difference between compulsory mediation as a procedure and a compulsory first meeting before the mediator. A compulsory mediation procedure now exists in France in the field of family law. In Bulgaria, with the last change of the law on mediation, it is not a question of a compulsory mediation before starting a legal process but it is a compulsory first meeting before the mediator during a civil process. Therefore, such a mandatory first meeting in a pending case does not represent any obstacle to the court proceedings. On the contrary - such a meeting can help the parties to find an amicable decision and to have their agreement approved by the judge.
In Bulgaria, as in most of Europe: e.g. France, Spain, the courts in big cities are overwhelmed with cases. As a result, it is impossible to have decisions within a reasonable period of time, which engages the responsibility of the State. Alternative dispute resolution - mediation and arbitration - is the only way to end a dispute without having to go through several courts. The agreement approved by the judge is equal to a court decision. To achieve this - it is a long process that requires time and a calm atmosphere. The mediation procedure provides such an atmosphere and the necessary time. The mediator, as a neutral party, helps the parties to the dispute represented by their lawyers to reconcile their positions and reach an agreement. In every legal case there is not only the legal side. There are also different emotions and oppositions accumulated over time and to solve them one needs "soft skills" with which mediators are equipped.
Dragos Calin - a judge at the Court of Appeal in Bucharest - thinks that such a restriction in the Bulgarian Mediation Act, which excludes non-legal mediators from court mediation centres, is not proportional and should be referred to the Venice Commission. Such a change in the law, according to Judge Calin, should be challenged in the Constitutional Court.
Finally, the participation of mediators in the mediation centres in the courts should be based on their personal and professional skills in the field of mediation, on their experience as mediators. One should bear in mind their training acquired by registering them with the centres in the courts. The work in mediation with the participation of mediators of different profiles, according to the character of the concrete case, is extremely important, useful and effective.
For this reason, the regulation provided for in the Mediation Act, which will come into force in Bulgaria in June 2024, that in the mediation centres in the courts there will be only mediator-lawyers, is too restrictive, not proportional and must be repealed.
Dessislava Djarova, former judge in the field of civil and commercial law, now lawyer and certified mediator, president of the Bulgarian section of GEMME