Serbia Justice Functional Review
External Performance Assessment > Access to Justice Services
d. Access to Alternative Dispute Resolution
- Evidence from numerous countries shows that the effective use of mediation can enhance the efficiency of dispute resolution, reduce the number of pending cases, and help keep cases from returning to the judicial system. Estimates from Serbia’s Free Legal Aid Working Group members indicate that the cost of a case concluded through mediation will be approximately 25 percent of that of a case completed through litigation, with significant savings to the courts and to parties.567 Such a reduction in costs indicates that mediation may directly enhance access to justice by allowing more affordable dispute resolution.
- The EU actively promotes methods of alternative dispute resolution, including mediation. Standards require member states to encourage training of mediators and to urge judges to invite parties to try mediation first. The EU also highlights certain safeguards, such that mediation must take place in an atmosphere of confidentiality, and that mediators cannot be obliged to give evidence in court about mediations.568
- In 2005 a legal and institutional framework for mediation was established in Serbia,569 but mediation was never fully embraced. Despite the judiciary’s poor reputation, backlogs, and efficiency challenges, the alternative course was not perceived to be more attractive. Over time, the number of mediation cases in Serbia has reportedly decreased.570
- Mediation has not been effectively incorporated into the regular proceedings of all courts. Instead, the system sits astride the regular system and depends on individual judges, attorneys, or parties to propose its use of their own initiative. To be effective, a court-annexed mediation system should be integrated into the case flow, and a system developed to divert cases to mediation at the appropriate time. Further, there is an absence of public awareness and understanding of the concept of mediation and its potential benefits, so court-annexed mediation programs experience difficulties in finding citizens interested in using mediation services. Lastly, there has been an absence of cooperation between stakeholders in the field of mediation.571
- Awareness of mediation is somewhat limited, although it is more commonly known in business circles. According to the 2013 Multi-Stakeholder Justice Survey, only 17 percent of general court users and around 53 percent of business users know what mediation is, and these levels of awareness have been constant since 2009.
- Some limited mediation does occur outside of the court system. The National Bank of Serbia, the Commissioner for the Protection of Equality, the Association of Mediators, and the Chamber of Commerce and Industry all offer mediation for some types of disputes. However, a recent evaluation of the use of mediation in Serbia indicated that these efforts are ad-hoc and used only sporadically.
- Mediation also suffers from a perception problem, largely because previous reforms offered promise but were ‘stillborn’. Among the general and business court users who heard about mediation, the majority considers it useful, but they are more likely to think that it is just partly useful rather than very useful. Furthermore, there has been a decrease in its perceived effectiveness. Among those who are aware of mediation in the 2013 Multi-Stakeholder Justice Survey, 36 percent of the general court users considered mediation very useful, a decrease of 15 percent from 51 percent in 2009. Conversely, 7 percent more people in 2013 consider it to be not useful at all. People who claimed to have had a dispute they thought should be settled in the court but decided against such action rarely choose to settle the dispute by mediation procedure. Only 1 percent of general population (out of those who had a dispute but decide not to settle it in the court for any reason) opted to settle the dispute by mediation process, while in business sector mediation was chosen by only 2 percent in 2009, and 0 in 2013.
- Nonetheless, court users – and potential users – appear to want alternatives outside of the court system, indicating that a well-designed mediation system would attract demand from potential court users. In the Multi-Stakeholder Justice Survey, 33 percent of the public and 46 percent of business representatives who had a dispute prefer to negotiate with the other side or resolve it informally somehow (see Figure 106 below). Similarly, in the 2014 Access to Justice Survey, the majority of people reported having a dispute but opting not to take a suit to court. Of them, 23 percent said they negotiated their dispute on their own with the other party, and a further 5 percent found an informal way to settle the dispute. The remaining 72 percent said the dispute was still outstanding.572
- Recognizing the problems of the previous ‘stillborn’ reforms, the MOJ formed a number of working groups between 2010 and 2014 to consider amendments, and in May 2014, a new law on mediation was adopted by the Serbian Parliament. Under the new law, the Republic Mediation Center has been disbanded and mediation is expected to be brought under the umbrella of the courts. Judges are now expected to act as mediators outside of their working hours and using court facilities. The 2014 Mediation Law allows for parties to be relieved from paying court fees if mediation is successful before the end of first hearing. As with the first law, mediation may be used under the new law in any dispute unless a law stipulates the exclusive authority of a court or other relevant body. In particular, mediation is seen as suitable for property, family, commercial, administrative, environment, consumer, and labor cases. In relation to criminal and misdemeanor cases, mediation may be used for damage and compensation requests.
- However, the new law on mediation has not addressed the institutional shortcomings that were present under the first law. Other than providing for some fee relief and expanding the scope of cases for which mediation is seen as suitable, the new law does not address the problems identified above. The role to be played by attorneys and parties is not clear, though practice around the world suggests that lawyers need not always be involved. If lawyers do participate, consideration will need to be given to the extent to which it may charge for mediation or whether legal aid would be.574 It will be necessary to monitor the potential misuse and failure of parties to comply with mediated available agreements.575 By-laws, to be developed within the next six months, may assist but the challenges of implementation are likely to be significant with this model and should be carefully managed in the rollout. Legal changes need to be supported by extensive outreach, regulatory considerations, and incentives to encourage the use of mediation.
- The judiciary can expect some challenges in implementing a system where judges become mediators. The Multi-Stakeholder Justice Survey found that Serbian judges are not very supportive of mediation (see Figure 107 below). A significant behavioral change and training would thus be required for them to become champions of the process. The extent to which judges were consulted through this process is also unclear, and no additional incentives were provided for judges to perform this further work outside of normal hours, potentially creating a systemic vulnerability towards gift giving or malfeasance by parties. Although mediation requires a very different skill set from judging, there remains no special training for judges who mediate disputes. Further, as European standards require that judges should not hear a dispute on which they have previously mediated,576 careful confidentiality and conflict of interest rules will need to be managed.
- Currently, judges and prosecutors report ambivalence about the proposed law. It is therefore timely for a significant investment in outreach, awareness raising, and training of judges and court staff. The proper functioning of the system presumes that all the actors in the system have basic knowledge of mediation. Although some courts employ mediation coordinators, they are often individuals who perform judicial functions and therefore cannot be expected to oversee effectively the administration and management of cases referred to mediation in addition to their regular judicial duties. Partners in Serbia suggest a tiered approach to training for mediators, attorneys, prosecutors, judges, and non-judiciary people who will have some participation in mediation (e.g., business leaders, media, CSOs, and other stakeholders).577
- Support for mediation by the Court Presidents and other managers, and understanding of their role in the mediation process, will be vital for the successful use of court mediation. The CCJE calls for judges to encourage consensual settlement,579 and elaborates that ‘understanding the respective roles of judges and lawyers in the framework of friendly settlements by conciliation or mediation is a vital factor for developing this approach.’ These factors are not yet present in Serbia.
- Familiarity among the judges, court staff and the public is an issue, but it may not be the primary barrier. In a recent crowd-sourcing survey,580 of those who answered the question about mediation, a minority of respondents indicated they were prepared to use mediation, with some doubting its efficiency. Impediments to use of mediation cited by participants included:
- insufficient incentives to use mediation, since some parties could simply afford to wait while the civil litigation drags for years on end;
- insufficient incentives for lawyers to recommend mediation because of its likely impact on their litigation fees;
- lack of trust by parties in the impartiality and fairness of the mediator; and
- unwillingness of the judiciary to direct parties to mediation, mainly due to inertia and resistance to change.