The mediation in the Bulgarian and European Law, bulgarian, european and international civil process
Palavras-chave:Mediation, Mediator, Agreement, Court Agreement, Executive power, Concluded through mediation
The article examines mediation as an alternative way of solving legal and non-legal disputes. Its regulation is in the MA and it is in line with Directive 2008/52 / EC. Ordinance № 2/2007 has implemented the European Code of Conduct for Mediators. Independence, neutrality and impartiality of the mediator is required by the act.
There are provisions in the CPC that encourage parties to use the mediation and resolve the dispute through it. As per Art. 140, para. 3 and Art. 374, para. 2 CPC the court may direct the parties at the open session, to mediation or other ways for arbitrarily settling the dispute. In the divorce process, the court is obliged to do so as well.
A mediator may be only a person, registered in the Unified Register of Mediators with the Minister of Justice. Persons, performing judicial functions in the judiciary system may not be engaged in mediation. The parties may participate in mediation with a lawyer or consult with other professionals. Mediators’ associations have the role of coordination centers in relation to mediation.
When mediation is used during a pending litigation process, the commencement of mediation is a ground for the case to be stopped (as per Art. 15, par. 5 MA). During the mediation procedure, limitation does not run. An agreement on a legal dispute, reached through mediation procedure, can be approved by the court and thus has the force of a court settlement (Art. 18 MA) and in relation with Art. 234 CPC) has the meaning of an enforced court decision including “res judicata” and executive power. The agreement, reached as a result of the mediation itself is not an enforceable ground. However, if it is concluded in writing with a notarization of the signatures, it could be used as a base for issuing of an order for immediate execution and a writ of execution (Art. 417, item 3 CPC). The article examines the issues of the concluded in Bulgaria through mediation and approved by the court agreement and the application of Regulation 805/2004. Regulation 1215/2012; Regulation 2201/2003; The 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children; Regulation 4/2009; Regulation 650/2012. For agreements concluded through mediation in another non- EU country, the CODE OF PRIVATE INTERNATIONAL LAW (CPIL) applies. As per Art. 122 CPIL, the provisions of Art. 117 – 121 CPIL shall also apply to court settlements if the latter are concluded in a State where are considered as judicial decisions.