THE FIELD OF APPLICATION OF COMMERCIAL MEDIATION (English version)

Currently, in many countries around the world, the mediation plays an important role in alternative dispute resolution, primarily because it allows parties to escape the terms of the dispute and find a settlement in accordance with their interests. It is not irrelevant the fact that whiles the solution of the dispute, by applying the rules of law, is rigid, the solution found through mediation is flexible, innovative and pragmatic, and thus better adapted to the interests of each party. National and international regulations applicable to alternative means of settling disputes, often sets also the filed of application, with the expressive stipulation of exempted fields. Therefore, the freedom of parties represents the principle of law, mandatory rules are the exception. Mediation clauses may also be grafted onto special legislation, whose specifics will take over. So, national legislation is to be taken into account individually, within the mutual influences of substantial right, when we observe the mediation. The solutions may differ and contradict from one legal system to another, with the price legal relations security, agreed between the parties. But it is equally true that a mediation clause could not be drafted with violation, in a local or international system, of any binding, for example, a rule of exclusive jurisdictional competence. For this reason, art. 2 of Directive 2008/52/EC, European Parliament and the Council excluded from the application of this the rights and obligations which the parties may not have under applicable law, its application to fiscal, customs or administrative matters, these are fields where Member States have regulatory exclusivity.