ADR DEVELOPMENTS IN KOSOVO
Alternative dispute resolution and the processes that it encompasses is a relatively new concept in Kosovo. The first introduction of ADR in the national legal system was undertaken in 2008, when the first Law on Arbitration and Law on Mediation were adopted.
The past decade focused on the drafting of legislation and the enactment of rules and policies to implement the objectives of these two laws. The relatively late introduction of ADR in the legal system meant that the government and other stakeholders were faced with a lengthy process for building institutional and human capacities. In addition, a lack of general awareness was consistently underscored as one of the most difficult challenges to tackle.
The chambers of commerce committed to establishing institutional arbitration, with a corresponding section on commercial mediation. While arbitration was entirely private by nature, it was also revenue driven, and soon became a major objective for the chambers. Today, there are two arbitration centers in Kosovo, which are consistently improving and, to date, have an impeccable reputation. Nonetheless, adherence to this type of out-of-court mechanism for commercial disputes is still relatively disregarded by the business community.
Unlike arbitration, the development of mediation in Kosovo required the commitment of the government. Due to the fact that the 2008 Law on Mediation provided the framework for court-referred mediation, the Ministry of Justice, with the support of foreign donors, trained and established a roster of licensed mediators, provided for the rules on ethics, worked on the establishment of mediation centers within the branches of basic courts in the country, and conducted awareness activities. The resulting figures for the number of court-referred mediation cases, as well as the number of settlements reached through these court referrals, were considered not only satisfactory, but promising, and showcased mediation as successful.
The 2008 Law on Mediation was the testing ground for the introduction of mandatory mediation in Kosovo. In August of 2018, a new Law on Mediation was passed. The main innovation within the new law was the introduction of mandatory mediation. It specifically provides that the judge will inform and oblige the parties to attend mediation for claims deriving from family disputes, such as alimony, custody, visits, child support and the division of marital property. In addition, claims deriving from property disputes, the rights of servitudes, and compensation for expropriated properties, will also be subject to mandatory mediation.
While these efforts in strengthening ADR to support the functioning of the judiciary have been consistent since 2008, the acceptance of arbitration and mediation, alongside litigation as mainstream dispute resolution methods, remains challenging. Given these ongoing developments and potentially positive future results, especially regarding the introduction of mandatory mediation, the current state is soon to change, and the use of ADR in the resolution of disputes is likely to increase.
By Anjezë Gojani, Senior Fellow – Kosovo, Weinstein International Foundation