In 2002, mediation was recognized in Serbia as a means of reducing court backlog and increasing judicial efficiency, when the first “Court Settlement Week” was successfully launched by the President of the Supreme Court of Serbia. Several first-instance courts followed suit with pilot projects aimed at integrating mediation into their daily work. Soon after, the first general legal framework for mediation was introduced through the Law on Mediation in 2005 (“Official Gazette of RS”, no. 18/ 05).
Initial efforts to develop and implement mediation as an integral dispute resolution method in Serbia did not prove to be sustainable, however, and the results were short-lived. The need to improve and harmonize normative frameworks with international standards and the EU Acquis, as well as further develop mediation culture and practice in Serbia, resulted in the enacting of the new Law on Mediation in Dispute Resolution in 2014 (“Official Gazette of RS” no. 55/2014).
The Law provides for the possibility a stay of court proceedings (up to 60 days), as well as the enforceability of agreements resulting from mediation. The Law particularly states that issues not expressly regulated shall be resolved in accordance with the mediation standards contained in the acts of the United Nations, the European Union, and the Council of Europe. Basic principles of mediation established by the Law are voluntariness, equality, participation and presence in person during the mediation procedure, exclusion of the public, confidentiality, neutrality and urgency.
Licensing system for mediators and training institutions
The Law has introduced a licensing system for mediators through the Ministry of Justice, which keeps a Register of Mediators as a public central electronic database, ensuring the availability of contact data for all mediators. By late July of 2018, 716 mediators had registered, most of who were from the City of Belgrade (44%). The highest numbers of mediators were from the ranks of lawyers (136), while licenses had likewise been issued to graduated lawyers, economists, judges, judicial associates, judicial assistants, enforcement agents, psychologists and a notary.
The Law also introduced a system of licensing for training institutions for mediators, which may be basic and specialized, with basic training program proscribed by a Minister of Justice bylaw. From 2015 to July of 2018, nine organizations had conducted accredited mediation training in Serbia, with a total of 1,460 participants. However, the existing legal framework and its implementation fell short of European standards, and more adequate training programs are planned to be established.
Alternative dispute resolution processes are badly needed in Serbia
An overview of the statistics of the courts in the Republic of Serbia indicates that there is great room for the use of alternative dispute resolution processes. The annual report of the Supreme Court of Cassation is clear that the inflow of first instance litigation cases is increasing from year to year. In 2017, the inflow amounted to 1,918,007 incoming cases, while the number of pending cases in the courts at the end of the year was 1,118,201.
With more than three first instance incoming civil and commercial litigious cases per 100 inhabitants per year, improving access to effective, efficient and high quality mediation services has been recognized as an important strategic objective of the judicial reform and government agenda. This is planned to include amendments of the normative framework, further promotion of ADR, and support for the establishment and development of mediation information centers and centers for mediation. A decentralized model of dispute resolution has shown to be too slow and ineffective, when the law does not provide for a more generous push for mediation – whether through incentives, or by obliging the parties to make an attempt at mediation, or at least inform themselves of its benefits.
Since enactment of the Joint Guidelines, a significant shift has occurred
In order to encourage the courts to direct attention to the promotion of mediation, the Supreme Court of Cassation, the High Court Council, and the Ministry of Justice issued Joint Guidelines in 2017 that provide that the courts should, in the early phases of proceedings, resolve disputes by referring the parties to mediation, or by encouraging them to reach a court settlement. The purpose of the Joint Guidelines was to alleviate the burden on the court and allow for more efficient procedure in other cases, where amicable resolution is not possible.
The Guidelines provide that Info-Services should be established for the Support of Alternative Dispute Resolution Methods within all basic, higher and commercial courts, as well as mediation Info-Desks. Active cooperation with external partners of the court, i.e. providers of mediation services, should be encouraged based on signed protocols of cooperation.
Since enactment of the Guidelines, a significant shift has occurred, with most mediations in 2017 taking place in the second part of the year, while the number of mediations handled during the whole year was almost three times higher than in the previous year. Most recently, a protocol on cooperation has been signed between the Chamber of Commerce and Industry and the Commercial Appellate Court, whereby commercial mediation will be actively encouraged.
By Ivana Ninčić, Senior Fellow-Serbia, Weinstein International Foundation