Even before we could find out what it is, it turned out there is no ground for mandatory mediation in our country.

As of 01.07.2024, the amendments to the Civil Procedure Code and the Mediation Act, which made a mediation meeting a mandatory step in certain litigation, were to come into force. However, on the same day the Constitutional Court ruled on Case No. 11/2024 that these legal texts contradict fundamental principles enshrined in the Constitution of the Republic of Bulgaria. Among the reasons for the decision are the restriction of access to justice as a fundamental principle of the rule of law; the exclusion of the state as a subject of law from the scope of mediation without this being justified by specific legal considerations; and the principle of substantive fairness, which is violated by obliging the parties to mediation to bear costs that remain their burden regardless of the outcome of the litigation.

Although the Constitutional Court’s reasoning sounds convincing, it would probably have been helpful to have mediation in place at least for a certain period of time. That way we could have seen in practice whether it was effective as an alternative means of dispute resolution or whether it was rather an unnecessary burden for the parties.

After the Constitutional Court’s ruling, the question about the threat of Bulgaria being sanctioned by the European Commission with a fine of up to BGN 100 million has been raised. The reason for this is the alleged non-compliance with the Recovery and Resilience Plan due to the fact that the adoption of mandatory mediation was stipulated in the latter. Thus, the concept of mandatory mediation keeps raising more and more legal, political and social issues. Until these issues are resolved, it will be largely up to litigation lawyers to encourage the resolution of disputes through mediation/conciliation or to apply the all-or-nothing approach with ref to their clients.

Author: Tsvetelina Koleva