1. Legal Frame
The first efforts for establishing lеgal regulation of mediation in Bulgaria achieved success in December in 2004 when the Mediation Act (hereinafter referred to at the MA) was adopted. (Promulgated in State Gazette No. 110/17.12.2004, last amended, SG No. 27/1 April 2011).
Significant role for the increase of the practical implementation of mediation had also the new Civil Procedure Code (Promulgated, State Gazette No. 59/20.07.2007, effective 1.03.2008, last amended, SG No.5/14 January 2011). Several provisions thereof set out the necessary procedural measures for applying mediation in pending court cases and established an initial legal basis for connection between mediation and civil proceedings.
In addition to these two legal instruments, Ordinance No. 2 of 15.03.2007, (last amended, SG No. 29/ 8 April 2011). on the implementation of art.8 of the Mediation Act (regarding the registration rules for mediators and training organizations and the rules of procedural and ethical conduct for mediators), contributed to the quality of mediation and mediators by setting minimum standards for mediation training, and requirements for certification of mediators and training institutions.
The European Community Directive 2008/52/EC (“Mediation Directive”) serves as very important incentive as it encourages legal community to use mediation by creating significant guarantees for the rights and interests of parties using mediation. The Mediation Directive was implemented in Bulgaria within the deadline set therein, by a law amending and supplementing the Mediation Act adopted by the National Assembly, promulgated in State Gazette on 1 April 2011.
2. Court Referral to Mediation
According to the current legislation in Bulgaria the court has the general authority upon its own discretion to “propose to parties to use mediation for resolving their dispute” (Art. 11 of the Mediation Act). The procedural moment, methods and consequences from referral to mediation are regulated in the Civil Procedure Code.
In civil and commercial proceedings, the court has the general authority “to refer the disputing parties to mediation when scheduling the first hearing of the case in public session” (Art.140, par. 3 of the Civil Procedure Code, Art.374, par. 2 of the Civil Procedure Code). In addition to that parties may be referred to mediation or decide to use it later on at any time during the proceedings. If the parties agree to use mediation the case may be postponed or stayed depending on the parties’ will. (Art.229, par.1, item 1 of the Civil Procedure Code). In practice, parties are usually able to have mediation sessions in the period between two court hearings.
In divorce proceedings during the first hearing for examination of the case “the court shall be bound to direct the parties to mediation or another procedure for voluntary resolution of the dispute. If the parties agree to use mediation, the divorce case will be stayed. Each of the parties may request a resumption of the proceeding within six months. Unless such a request is made, the case shall be dismissed. Where settlement agreement is reached, depending on the content of the said agreement the case shall be dismissed or a proceeding for divorce by mutual consent shall be proceeded with.” (Art.321, par. 2, 3, and 5 of the Civil Procedure Code).
An important incentive for the parties to reach a settlement agreement in a pending case (subsequently implemented by the court in a court settlement agreement) is that “half of the stamp duty deposited shall be refunded to the plaintiff”. (Art.78, par.9 of the Civil Procedure Code).
3. Protections Provided to Ensure Confidentiality of Mediation Proceedings
Currently, mediation confidentiality applies to all discussions in connection with the dispute. The participants in a mediation procedure are bound to respect the confidentiality of all circumstances, facts and documents as have come to the knowledge thereof in the course of the procedure. (art.7of the MA).
The mediator shall be bound to keep as confidential all the information related to his/her activity as a mediator even after the end of the mediation procedure (art.33 of the Ordinance on the implementation of the Mediation Act).
Special protection for mediation confidentiality is ensured by specific measures in the civil procedure. Thus, according to Art. 166 of the Civil Procedure Code, mediators have been given the right to refuse to testify about a dispute they have mediated.
The new paragraphs of Art.7 of the Mediation Act implementing the Directive increase this protection, setting out that a mediator cannot be interrogated as a witness in respect of circumstances confided to him/her by any of the participants, which are relevant to the resolution of the dispute subject of mediation, except with the explicit consent of the participant who confided the circumstances (Art.7, par.2 of the Mediation Act).
The exceptions to mediation confidentiality, provided for in the new paragraph 3 of Art. 7 of the Mediation Act, strictly follow the Mediation Directive. Such exceptions shall only be admissible in the following cases: (i) where this is necessary for overriding considerations of criminal process or related to the protection of public order, (ii) when required to ensure the protection of the interests of children or to prevent harm to the physical or psychological integrity of a person, or (iii) where disclosure of the content of the agreement resulting from mediation is necessary in order to implement or enforce that agreement.
4. Enforceability of Mediation Agreements
The major change with the highest anticipated effect in the Bulgarian mediation legislation was made in furtherance of Art.6 of the Mediation Directive regulating enforceability of mediated agreements.
The new Art.18 of the Mediation Act implementing the Mediation Directive provides for that “agreement under a legal dispute within the meaning of art.1 of this law reached in a mediation procedure shall have the force of a court settlement agreement and shall be subject to approval by the regional courts in the country. The court shall approve the agreement after it has been confirmed by the parties, unless it conflicts with the law and good moral. The court shall hear the opinion of the prosecutor, if a prosecutor participates as a party to the case.”
5. The Impact of Mediation on Statutes of Limitation
The impact of mediation on Statutes of Limitation was regulated for the first time in Bulgarian law as a result of the implementation of the Mediation Directive.
New explicit provisions in the Mediation Act state that limitation periods shall not run during the mediation procedure. (Art. 11а of the Mediation Act).
To clarify the initial date of mediation, and thus the day when limitation periods shall be suspended, the law specifies exactly which moment shall be considered the beginning of mediation. According to Art. 11, par.2 of the Mediation Act, the beginning of mediation shall be the day, when parties have reached a consent for commencement of mediation procedure, and in the absence of an explicit consent - the day of the first meeting between all participants and the mediator.
However, there are at least two important practical issues related to limitation periods that need additional regulation.
First of all, there are no rules provided for determining the final date of mediation, or when exactly the suspended limitation periods shall continue running again. In order to ensure security for parties in mediation, it is provided for by the law, that mediation shall be terminated upon expiry of 6 months from the beginning of the procedure. (art. 15, par.1, item 6 of the Mediation Act). This very specific timeframe sets out clear limit with regard to limitation periods – if parties do not terminate mediation earlier, or the date of termination could not be easily defined (e.g. due to out-of-mediation discussions on possible next sessions or attempts for its continuation), with the expiry of the 6 month period from the beginning of mediation procedure, it will be terminated and limitation periods shall continue running. This timeframe also helps avoiding misuse of mediation for unreasonable delay of the resolution of a dispute.
Second, the legal provision regulating limitation periods should be placed in the Obligations and Contracts Act as it contains all provisions regulating limitation periods and is lex generalis in respect of all civil relation involving obligations and contracts. Its non-systematic placement in the Mediation Act might create some misinterpretations.
6. Requirements for Parties and Lawyers to Consider Mediation as a Dispute Resolution Option
The existing legal regulation of mediation, even after implementation of the Mediation Directive, does not provide any requirements for parties and lawyers to consider mediation as a dispute resolution option.
Requirements for Parties to Participate in Mediation
As the Bulgarian law sticks to the concept of voluntary mediation, there are no requirements for parties to participate in mediation. The mediation Act explicitly states that parties shall participate in the procedure of their own free will and may withdraw at any time.
7. Accreditation Requirements for Mediators
The accreditation of a mediator is made by the Minister of Justice by entry into the Uniform Register of Mediators provided that the requirements of the Mediation Act and of the Ordinance on its implementation are met.
In order to be accredited as a mediator, one must be a legally capable person who has successfully passed a mediation training, has not been convicted for general crime, has not been deprived of the right to exercise a profession or an activity, has a permit for long-term (new provision) or permanent residence in the Republic of Bulgaria, in the event the person is a foreign national. Such a permit is not required from nationals of member-states of the European Union, the other states from the European Economic Area and Switzerland. (Article 8, par. 1 and 2 of the MA).
As a direct reflection of the Mediation Directive the opportunities for foreign nationals to become mediators in Bulgaria were extended by allowing foreign nationals having long-term residence in Bulgaria to acquire the capacity of mediators if they meet the other legal requirements (previously, only persons having permanent residence were allowed to become mediators).
It is important to mention that specific groups of officials are not allowed to serve as mediators. The general prohibition in Art. 4 of the Mediation Act provides that that persons performing functions of administration of justice in the judiciary system may not carry out mediation activities. Thus, judges and prosecutors may not serve as mediators. Other government officials, such as officials in the ministries, may not perform mediations, based on the general prohibition that are not allowed to perform any paid activity in addition to their official service, except for lecturing. However, these government official could perform pro-bono mediations.
As the key prerequisite for acquiring the capacity of a mediator, mediation training is very precisely regulated in the Mediation Act an in the Ordinance on its implementation. The mediation training required for accreditation must be provided by an accredited training institution approved by the Minister of Justice on the grounds of special requirements, such as training curriculum, qualified mediation trainers, etc. (Article 8, par. 1 and 2 of the MA, Chapter 2 of the Ordinance on the implementation of the MA). The list of the accredited institutions providing mediation training is available on the Web page of the Bulgarian Ministry of Justice, Registers Section, Uniform Register of Mediators: http://www.justice.government.bg/new/Pages/Registers/Default.aspx?evntid=eq0G%2bPC%2bawg%3d
The minimum contents and duration of the mediation training are specified in the Ordinance on the implementation of the Mediation Act. Minimum 60 hours of training are required for accreditation. The practical part of the training must be at least 30 hours of training.
In furtherance of Article 4, par. 2 of the Mediation Directive, which emphasize on the importance of the initial and further training of mediators for ensuring that mediation is conducted in an effective, impartial and competent way, a specific new provision for further training of mediators was included in the Ordinance on the implementation of the Mediation Act. It encourages mediators (without obliging them) to regularly improve their skills and knowledge by passing further theoretical and practical training in specialized mediation (such as commercial, family, labour mediation, etc.). The minimum duration of such specialized trainings is 30 hours. Their minimum contents are explicitly specified and an exam is required for the successful completion of such a specialized training. (Art.11а of the Ordinance).
Currently, reliable and comprehensive statistics are available for the cases mediated at the Court Settlement Centre at the Sofia Regional Court, and no national statistics is officially collected. The statistics from the Court Settlement Centre, show that mediation sessions are held in the Court Settlement Centrе every working day and more than one third of the cases referred settle successfully. The increase of cases referred and settled in the first half of the second year of the Centre’s activity compared to the same period of the first year is more than 50%.
The statistics show that the average time needed for settlement of a case in mediation was 2 sessions, with approximate duration of 2 hours each. These results prove that parties save significant amount of time through mediation, and the court saves many hours of procedural time. Not to mention that 50% of the state fee is reimbursed to the plaintiff in case of settlement agreement.
1. Legal Frame