Although mediation is already a tradition in many states, being widely used alongside traditional justice, this practice is just at the beginning in Moldova. The first law on mediation is from 2007, but only in 2015, when a new law was adopted, things started to move, although a bit anemically, say those in the field. For 5 years, disputes settled through mediation have increased 8 times. It would seem impressive, if we did not say that the maximum number, in fact, reaches less than one thousand cases for last year, while far more than 100 thousand new cases are filed annually in courts, a great deal of which could be solved through mediation with much less resources and time.
Victor Cojocari is one of the most active mediators in the Republic of Moldova. Victor is a former soldier, has been settling conflicts for 9 years and, as a trainer, teaches others the secrets of this profession. Although a pandemic year, in 2020 Victor mediated twice as many conflicts as in the previous year, which represents almost a quarter of all cases of extrajudicial mediation in the country.
Victor Cojocari: “Most of the time, settling a case via mediation takes place online, by phone, by mail, especially since some of those who come, do not want to talk to each other at all, as has happened in two conflicts we have had right this month. One was coming, then leaving, and then the other one was coming, if there was something to be signed. Otherwise, we talked to one side and conveyed it to the other side, the negotiation process went through the mediator. We have had both individuals and legal entities that did not want to talk to each other. Going on your own to court would not be possible. One must hire a lawyer, and this means costs. In principle, if the disputes do no imply large costs, it is not logical to rush to court, where the costs are large and the amount of time spent is very large. Even after mediation if, let’s say, the transaction was not executed, one can file a request for confirmation in court, which is examined without summoning the parties, without their presence, without having to pay the state fee and, within fifteen days, one gets their ruling and writ of execution.”
Cu DREPTul: Mediation is considered the cheapest dispute resolution procedure. In addition, the cost is shared between the parties involved. Yet, how much does mediation cost? How much is one session/case?
Victor Cojocari: “Any litigation that goes to court, if it has an amount of the complaint, a certain cost, then the amount of the state fee alone is 3% in the first instance court. When it is a million, 3% is 30,000. If it is over one million six hundred thousand, it is already 50 thousand, and the ceiling is 50 thousand for legal entities and 25 thousand for individuals. If you come to check – even the rates are public on my site – it is 1.2%, half the state tax. Of course, this does not mean that this tariff is nailed down. It depends on the financial situation of the parties, on many other issues that you discuss at the negotiation stage of with the parties, and may be half as little. Or, if the amount of the complaint is small, of 5-20 thousand, I apply the minimum fee of 450 lei. There are conflicts with and without a monetary value. Let us say, for a conflict related to determining a child’s alimony, setting the schedule of meetings of the child with one of the parents, the tariff would usually be 1500-2500 lei per case. There are many sessions and there are many nerves. The mediator practically gains nothing if looking at the time weight, compared to even a quick mediation. Yes, I have an hourly rate of 300 lei but I usually use it only when the parties do not confirm that they will be quiet, will not shout, will not make scandals, then I move into a fixed position and we try to settle. If the parties are antagonized and it is impossible to work, then one of the methods, and even of settling faster, is having an hourly fee. In such case, they have to work, because I tell them, ‘Here is the minutes, showing when we started, one hour has passed, and instead of talking about what is to be done, you’ve constantly deviated and went back to remember what happened in 1917’. There are the mediator’s methods and tactics depending on the situation that is between the parties.”
Cu DREPTul: How long does it take to mediate a case? What does the duration depend on?
Victor Cojocari: “About 60% are short-term mediations, when I am invited by the parties, microfinance loans, collectors, anti-collectors. Virtually, one hour is enough to settle. As a rule, the parties had discussed with each other before calling the mediator. Family cases can still last up to three months, but this is usually one, two, three joint sessions, and most are now resolved through the internet, through discussions, forwarding the proposal of a party to the other one and coordinating between them until they reach a common denominator. First, this reduces costs. Moldova is not so big but even for one to come to Chișinău from a distance of 100 kilometers takes a whole day. Everything can be solved remotely.”
Cu DREPTul: If it is such a good solution, why are there so few cases? Although the number practically doubles from year to year, at least the Mediation Council says these are insignificant figures for the Republic of Moldova. For example, in 2020, just under a thousand disputes were resolved through mediation. For comparison, in just 6 months of last year, almost 80,000 cases and materials were registered in the first instance court.
Victor Cojocari: “Most don’t even know about mediation. Many entrepreneurs, most of them, do not know, let alone individuals. Only those who have solved at least once, come again. We have had parties, especially entrepreneurs, who have come four or five times, those who have seen the effect of solving through mediation. It’s completely different for them now, when they could solve their problem through mediation in a few days, compared to past times, when it took years in a row to solve. We are at a starting, incipient stage, as they say. I think an entire generation must pass, with a different culture and a different mentality. Mediation is cheaper than a lawyer’s services everywhere. In principle, mediation has indeed been seen as a tool to unburden the courts. A judge has 10 to about 20 hearings a day. No matter how good he is, I don’t know what he must do to handle them all, as there are eight working hours per day. It is very hard to ensure the quality of justice through such an overloading of judges. Mediators would be a solution for unburdening them, but again, there must be more awareness, starting with the people. In our country, it is usually done by forcing things, and everything that is forced upon is difficult. Therefore, the mindset must be changed, the new generations should be educated in school using other methods, not aggression. I think it will be a long stage until we initially change ourselves. At this stage, due to the facilities contained in the Mediation Law, virtually the majority of those who have come to mediation, let’s say, 1% of them had the intention to settle amicably, the rest looked at it and calculated financially – because it is cheaper, even if the transaction is not executed, you no longer pay the state tax, the case is examined very fast and you have a writ of execution and the ruling that confirms the transaction. These strengths that have been introduced into the mediation law have given the effect that parties become interested and come.”
Cu DREPTul: The data of the Mediation Council for last year, 2020, show that out of the almost one thousand disputes resolved through mediation, more than half were commercial, then less than a third were civil and only 14 were family conflicts, 7 criminal and 3 labor-related cases. What is the nature of the cases you have worked on?
Victor Cojocari: “Most are civil cases, but this covers everything. To date, I have had 33 economic cases, between business operators. Thirty-three out of over 200, that’s about 15%. Compared to last year, there have been a few more, but compared to this volume, they had to be about double. The commercial disputes I have had also involved small amounts. Big disputes are gone. I think it’s the specifics of the year or business operators are hesitating, I don’t know. I’ve asked other mediators and they also say that big disputes are not to find this year. I think I’ve had only three or four family cases this year, of which only one failed to reach the end, the transaction was not concluded. Those cases were forwarded to us by lawyers, it wasn’t the parties who came to us directly. The lawyer, looking at their problem, called me and told me that in principle, their case should be better resolved through mediation, because it did not even make sense to go to court for a question that, in principle, could be solved if they were able to reach a common denominator. Let’s say, when it is about child support, whom the child should remain with, the meetings. Mediation is confidential, it’s not like in court, when they come, they sit down, it is public, everyone is listening to everything they have had while married, to their problems, all the garbage. Here, in any case, it’s much simpler. Plus, there is the option that even if they don’t want to talk to each other, there is a person through whom they can communicate.”
Cu DREPTul: In what cases or situations do you advise people to resort to mediation and in which cases would it be a waste of money?
Victor Cojocari: “Mediation is the best solution. It covers all types of conflicts and disputes, except for those that are covered by the Criminal Code, which are not subject to mediation if they do not have a civil side. Let’s say, you have committed a crime and a moral or material damage was caused accordingly. I do not know of any such a conflict that could not be resolved through mediation. The problem is different –mediation is voluntary and, virtually, if the second party does not want it, you cannot convince them, because their aim is to punish. You know, there is this thinking in Moldova – ‘I don’t care how much I have to spend, but I must punish him, I must bring him to his knees’. If you look at the statistics, about 10% of the invitation requests we sent have been rejected. Every tenth person said ‘No, I will solve this through court or another method, I don’t want mediation’. Anyone who has a conflict has different opportunities: mediation, court trial, a legal consultation with a lawyer, or a lawyer, and tries and calls all kinds of possibilities and, for each type, asks how they can solve through this method, which the costs will be, the timeframes, the maximum settlement term. For courts, it can be said with approximation that any litigation lasts at least a year and that provided that not all the stages have been passed. One may file a complaint now and have the first hearing in about two months. If you file in summer, you only meet in the fall. If you filed it late in the fall, you’ll meet after the New Year’s, and so on. The waiting time in court is very long, plus, the state fee is 3%, then one must pay the lawyer’s fee, and a percentage of their success fee. With a mediator, if a fee is negotiated, you stick with that fee; there is no success fee – lest the mediator remains in debt or the case took longer than initially established. There is a fee planned for three months, no matter what happens. In addition, the efficiency is completely different. In any case, anyone can try it, because it is much more beneficial for them, as well to solve their problem voluntarily and through a transaction with the person in question. Let’s say, two individuals – and I’ve even had such a case this month – where one lent some money to the other. Now, the borrower is jobless and cannot return the amount he had borrowed. The lender understands that if the borrower does not work anywhere, even having a writ of execution will not serve him well. It is better to choose mediation, which helps settle that the borrower will start paying back even when they have started working occasionally somewhere. It doesn’t make sense and that also applies to businesses. Strategically, through mediation, you have a chance to settle that you will at least get back your main loan, because in mediation, the parties waive either partially or totally different penalties and interests, especially in today’s pandemic situation, when a lot of businesses don’t work. I have also known people who are abroad and do not work, have problems with paying their debts and choose mediation to stagger paying back their debts.”
Cu DREPTul: Who and how can become a mediator? What is the procedure? What are the costs?
Victor Cojocari: “The candidate must have a university degree, no criminal records, bring a copy of their criminal record, take the initial courses, at least 80 hours, the mediator courses are about three weeks, they are paid, I think this course costs up to 2500 lei. After that, they take an examination for the initial courses, followed by an examination at the Ministry of Justice, which has a committee that issues a mediator’s certificate. Those who have passed the examination get a mediator’s certificate, which costs 450 lei. In principle, from the perspective of obtaining a profession, it is not so expensive. Nor are the initial investments to carry out such an activity big – at least a computer and a printer and that is it. One does not need to rush into loans or anything like that. It is not the training; the hard part comes afterwards, when you must drill your name over the years for people to get to know you and to recommend you to the others. The costs of becoming a mediator are very low. I am also an entrepreneur. All I do in mediation I also do as an entrepreneur, I am also alone there, I have no workers, but as an entrepreneur, I have more benefits than a mediator. Hence, the latter is an activity you must enjoy doing. At this stage, any mediator must have other activities as well, or else, it is hard. If you have one mediation hearing per month, you cannot survive. I have 200 and I still cannot survive. Purely economically, it does not favor the mediator to leave their basic work and do just mediation, because he will starve.”
Cu DREPTul: All these years, the Mediation Council has certified around 1000 mediators. The State Register of Mediators enters 188 people. Only 2 out of 10 people who have obtained the necessary qualification have decided to officially register as a mediator. We could not find out how many of them work and to what extent. From what you are telling us, it’s a pretty complicated job. What should happen to make this job more attractive? In general, do you think it has prospects?
Victor Cojocari: “I think it would be beneficial for the mediator to be exempted from paying taxes in the first two years of work, and to pay them partially from the third to the fifth year. Some measures should be provided so that a beginner can start, as the whole system will benefit from this. The fewer people will go to court, the less costs, and the future effect will be related to the quality of the act of justice. There may be a number of measures, but a study must be carried out to see if, at this stage, we have the possibility to introduce mandatory mediation maybe for some disputes, to be performed not by a judge but by a mediator. This would enable especially territorial mediators to stay afloat. When the economic situation of the population is not very good, whether you want it or not, they will eventually choose to solve their problem in a way that at least they have enough money for, one that is more accessible to them. It has great prospects for the future. Many will come from abroad who know about it. Just last month, I mediated a dispute between two legal entities, one of which was a foreign investor who turned to mediation from the very beginning, because he knew that everything should initially be resolved through mediation, not through the court. It does have prospects.”
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This text is an excerpt from the CuDREPTul podcast. The full version, audio and text, exists only in Romanian.
