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There is a wide debate among mediators regarding promoting mediation, with views that are sometimes aggressive, other times hilarious, but rarely pragmatic. In time, while having roles as both instructor and mediator, and while coming in contact with both students and possible clients, I had the opportunity of gathering impressions as to why mediation “doesn’t work” in Romania. Constantly, one of the most quoted reasons is the lack of promotion of the mediation process in the public space. So far, everyone agrees. However, when one asks the question “what should be done?” opinions not only differ but are sometimes completely opposite. Some consider that the Mediation Council bears the blame because it doesn’t get sufficiently involved. Others blame the lack of organization among mediators, as they should be organized as the Communist Party, with divisions in each county and with clairvoyant leaders who take decisions for all other members. Still others consider that mediation simply doesn’t stand a chance in Romania and, as long as the law is not altered to include mediation as a mandatory preliminary procedure, every effort to promote it is doomed to failure. There are also other views that could be mentioned, but let’s see how things look like in practice.

The other day, I was talking to a friend of mine, a Romanian citizen who lived for many years in the United States. When he returned to Romania he had some disputes with some tenants, so he turned to mediation, and convinced the other party to get involved in the process as well. They chose a mediator based on the sole criterion of hearsay. This esteemed lady mediator, who, as accustomed, happened to be a lawyer as well, was requested to open of the mediation procedures.

Both parties arrive at the Ms both-lawyer-and-mediator’s office, they complete the initial formalities and they begin discussing the mediation contract. This is where they encounter the first difficulty: bringing along habits from other professions, Ms lawyer-mediator states in the contract 0 (zero) as a fee. My friend, representative of a firm, demands that the fee be written in the contract and that an invoice be issued by the mediator as a proof of payment, needed in my friend’s firm accountancy. Ms lawyer-mediator hesitates and juggles to avoid my friend’s request. Eventually, the matter is resolved and the situation is overcome.

Going further, Ms lawyer-mediator explains to the parties the role of the mediator (though as per the legal requirements this was supposed to be done previous to signing the contract and not afterwards): the mediator does not offer solutions or advice, the mediator doesn’t decide, doesn’t intervene or influence, doesn’t advise, doesn’t do such and such. This presentation (though essentially accurate) lead both parties to naturally raise the question: then what are we paying the fee for? At which point, Ms lawyer-mediator finds herself speechless, unable to respond, skips the topic and invites each party to introduce their points of view on the conflict and to also present their claims. The parties proceed not only to answer the mediators’ questions, but also to make and motivate offers. What does Ms lawyer-mediator do?  She invites each party out of her office and starts discussing with each of them separately, because this is what she was taught in class. Puzzled by this, my friend asks her why she decided to discuss with each party separately and he is told that the purpose is to identify each party’s interests and their rationale. My friend claims that he made his offer, he is aware of the other party’s offer and would like to negotiate with the other party starting from what was already told in the meeting. As far as arguments and motives are concerned, my friend advises that they had already been exposed clearly and that he requires to tender with the other party directly and not through the mediator.

To make a long story short, the mediation failed and the parties involved dropped the procedure mostly because of the lack of preparation of the mediator rather than because of the inability of the parties to negotiate or to find a solution.

This is not a unique case. It is not the first time I meet people that have tried mediation only to find themselves in front of a mediator who is either reluctant to take their case, or fully unaware as to what exactly he or she meant to do, or worse yet one of those ‘crackerjack’ mediators who try to bring in this profession all the flaws and infamies of other professions, and who fail to understand one fundamental thing: mediation is based exclusively on the trust of both parties in the integrity of the mediator and on his/ her ability to help them. The mediator’s authority is not formal, but comes from this gained trust, which constitutes the main ingredient of the success of mediation.

So long as mediators don’t know what they are supposed to do, so long as mediators fail to gain the trust of the parties in their capacity to manage the mediation process in both parties’ interest, so long as mediators don’t have a clear answer to the question “how can you help us?”, it is obvious that any attempt to promote mediation becomes rather futile.

We can very well organize in vertical associations, we can march with torches, we can sing hymns, and the Mediation Council can take all the thinkable and unthinkable steps with the central and local public authorities, but mediation won’t be a success as long as mediators are unable to gain the trust of those that require their assistance, through their own conduct and the proof of mastering their profession with dexterity and intelligence. The best promotion of mediation is represented by the cases resolved with professionalism, focus, and diligence. These cases generate client satisfaction, which in turn leads to the consolidation of trust of the general public in mediation as an alternative means of resolving conflicts. This kind of promotion is exclusively in the hands of mediators. As long as this aspect is not understood, the mediation promotion campaigns  all amount to 0. In fact, to 0.0.