Bulgarian Association for Alternative Dispute Resolution - BAADR

The first model of court-referred mediation in Bulgaria was set up under "Establishment of court-referred mediation model" pilot project. The project was carried out during two judicial years (01.09.2004 - 31.07.2006) by the Bulgarian Association for Alternative Dispute Resolution (BAADR) in Plovdiv in partnership with Plovdiv Regional Court with the financial support of the American Bar Association - Legal Initiative for Central Europe and Eurasia and the USAID.

During the second year the established court-referred mediation model multiplied and is now applied simultaneously in the jurisdiction of the regional courts in Asenovgrad and Stara Zagora.

In 2005/2006 the same model was also applied in the jurisdiction of the regional courts in Burgas, Vratsa and Mezdra together with mediation associations and the financial support of the American Bar Association - Legal Initiative for Central Europe and Eurasia and the USAID.

What is unique about the court-referred mediation model applied at Plovdiv Regional Court is that it is the first in the country and was established as a mechanism and applied in the absence of any legal regulations on alternative dispute resolution, in particular, mediation.

In July 2003 a seminar for judges from Plovdiv Regional Court and mediators from BAADR - Plovdiv was held under the logistic and financial support of ABA CEELI and Julie Bronson - Alternative Dispute Resolution Administrator at Los Angeles District Court. The seminar defined the legal base for the court-referred mediation model in agreement with the law in force at that moment, namely Art. 109, par. 1, item 2 from the Civil Code stipulating that the court on its first hearing should ask the parties to reach an agreement.

In regard with the main principle of Bulgarian legislation that anything not forbidden is allowed it was established that the court be able to inform the parties about the possibility to solve their dispute through mediation.

The seminar established the main principle on which the court-referred mediation model should be based - agreement based on the good will of the parties and judges to refer the dispute to mediation.
The very mechanism of transfer, the guarantees against the abuse of mediation as a way to delay hearing, the procedure forms to be used for the transfer, and the coordination between the court and the mediation Center were also defined.

All this was settled in the Partnership Agreement on the court-referred mediation model between Plovdiv Regional Court and BAADR signed on 21 July 2003.

In 2003/2004 judicial year for the first time in Bulgaria judges from Plovdiv Regional Court began to refer cases to mediation.

In 2004/2005 judicial year:
- 30 disputes were referred to mediation;
- 18 mediations were held;
- 13 agreements were settled.

In 72.22% of mediation cases agreement has been reached.
- Mediation in court-referred cases takes part in the term of two regular court hearings - 25-30 days, and does not delay court procedures.

During the first judicial year the applicable areas of court-referred mediation became clear.
Out of 30 court-referred disputes:
- Child support 10
- Divorce 8
- Child custody 3
- Division of property 3
- Labor (individual) 2
- Right for usage (without division) 2
- Obligations 2

During the second judicial year the project worked under the actual Law on mediation and the court-referred model from 2004/2005 court year was applied simultaneously in the jurisdiction of the regional courts in Asenovgrad, Stara Zagora, Burgas, Vratsa and Mezdra.

The project worked on the base of the Partnership Agreement signed between BAADR and the corresponding the regional courts in Plovdiv, Asenovgrad, and Stara Zagora.

53 dispute cases have been referred.
44 mediations have been carried out.
33 agreements have been reached.
The mediator has stopped one mediation hearing because the parties were considered inappropriate.

Mediation has been carried out in 83% of the court-referred cases.

In 76.74% of mediation cases agreement has been reached.

Mediation cases are distributed according to the nature of the issues as follows:
- Divorce claims 13
- Division of mutual property 8
- Executive actions 7
- Private criminal cases 5
- Child support 2
- Contractual disputes 2
- Commercial disputes 2
- Child custody 1
- General criminal cases 1
- Unfounded usage claim 1
- Individual labor claim 1
- Derivation 1
44

The expansion of the court-referred mediation model into the jurisdiction of the regional courts in Asenovgrad and Stara Zagora and its functioning in the jurisdiction of Plovdiv Regional Court for a second judicial year prove that the model works and is effective in the type established during 2004/2005 court year.

The ratio between court-referred disputes / mediations / reached agreements remains stable and even gets better in the three Mediation Centers:

- In Plovdiv - mediation has been carried out in 88.46% of the court-referred cases; agreement has been reached in 72.72% of the carried out mediations.
- In Asenovgrad - mediation has been carried out in 60% of the court-referred cases; agreement has been reached in 83.33% of the carried out mediations.
- In Stara Zagora - mediation has been carried out in 88% of the court-referred cases; agreement has been reached in 80% of the carried out mediations.

The summarized ratio points out without a doubt that the philosophy of the model, i.e. referring only appropriate for mediation cases and parties, appointed after evaluation by trained in mediation judge and court, is correct and effective: mediation has been carried out in 83% of the court-referred cases; agreement has been reached in 76.74% of the carried out mediations.

Mediation in court-referred disputes takes part in the term of two regular court hearings - 25-30 days, and does not delay court procedures.

During the second year of the pilot project there have been no delayed cases due to mediation.

The application scope of court-referred mediation expanded in the second year as compared to the previous one.

- For the first time mediation was applied in private criminal cases - 5 mediation cases - and in three of them agreement was reached.
- Mediation in a general criminal case, carried out under the will of the defendant and the victim, showed that mediation works in more serious cases too.
- The 7 mediation cases in executive actions showed that mediation also works in the last stage of court proceedings.
- The mediation in a case of unfounded usage claim pending before the Supreme Cassation Court showed that mediation works at any moment during court proceedings before the court decree.

The concept of court-referred mediation has changed:
During the second year of the project it became possible for the parties themselves to initiate mediation.

Mediation agreements reached in such cases include a clause for termination of court hearings due to withdrawal or traverse of claim or termination of proceedings.

Mediation initiated by the parties was carried out in the following cases: in the negation claim pending at the Supreme Cassation Court, in the general criminal case, in the executive cases and in a commercial dispute. In these cases mediation led to termination of three court disputes and two administrative correspondence.

The established court-referred mediation model has the following features:
- The court refers cases to mediation, but not to any specific Mediation Center or mediator;
- The parties in dispute are free to choose the Mediation Center or the mediator;
- Judges voluntarily inform the parties on the possibility to reach an agreement through mediation;
- Only those parties and cases evaluated by the judge as most suitable for mediation are referred;
- Cases are referred to mediation by judges trained in mediation, who evaluate the dispute and the parties for mediation;
- The parties themselves can initiate mediation without the formal intermediacy of the court;
- Disputes are resolved rapidly in the term of two regular court hearings which does not delay court proceedings;
- Court-referred mediation does not stop court proceeding, except in cases in which the parties specifically want it.

The general statistics from the two pilot years of court-referred mediation show the following:
- Court-referred cases 83
- Mediations 62
- Agreements 46

Mediation has been carried out in 74.69% of the court-referred cases.
In 74% of mediation cases agreement has been reached.

Zoya Gerasimova