At the Annual Conference of the Serbian Commercial Courts in Zlatibor, which took place on 3-6 September, a panel discussion on mediation and the new legislative solutions being prepared by the Ministry of Justice Working Group was organised for the first time. The panellists included Dr Srđan Šimac, a judge of the Zagreb High Commercial Court, a mediator and President of the Croatian Mediation Association (CMA), and Ms Ivana Ninčić Osterle, a consultant on the EU for Justice Project (IPA 2015) which supports the work of the Ministry of Justice.
Opening the panel, Ms Ivana Pavlović the panel moderator and a judge of the Commercial Appellate Court, emphasised the need to create an effective and sustainable mediation system and to develop and to nurture mediation skills in court. She noted that the court had the capacity and judges trained in mediation, making a parallel development of court and out-of-court mediation in Serbia necessary.
Judge Šimac presented his many years of experience in mediation, outlining the challenges he had encountered in developing mediation in Croatia. He explained the difference between the legal framework of Serbia’s and Croatia’s systems, emphasising that mediation in Croatia was conducted as an integral part of the work of judges. "Mediation in court restored confidence in the Croatian judiciary". The novelty of Croatia’s statute is that a judge can order mediation, and in some cases s/he must. It is necessary for the parties to get a sense of mediation and to understand its benefits in order to accept it as an effective way of resolving their dispute”, argued Judge Šimac who has been involved in the Commercial Mediation in Serbia - (Phase 2) Comparative analysis Project which is being implemented by the European Bank for Reconstruction and Development (EBRD) and International Development Law Organisation (IDLO).
Ms Ninčić Osterle said that the issue of mediation development had become current in 2014 when the European Union made the improvement of mediation implementation one of the conditions for further progress in the accession process. She said that the Working Group on Drafting Amendments to the Mediation in Dispute Resolution Act should find an answer to how the regulatory framework could affect the quality and the frequency of mediation application.
"The main goals are, inter alia, to strike a balance between the need to regulate and preserve the autonomy of the will of the parties, the need to meet the demand for mediation, the need to comply with international and European standards, and the need to provide conditions for quality mediation," Ms Ninčić Osterle said. She added that the Working Group should define stricter conditions for training and licensing of mediators, specify the position of judges in the mediation system and work on developing solutions which would encourage greater application of mediation in Serbia.
"The universal political awareness that mediation has its prevailing advantages and that developing it is worth promoting is best evidenced by the signing of the Singapore Convention on Mediation" Ninčić Osterle argued, adding that the provisions of that convention were being considered in the drafting of new solutions to the enforceability of agreements resulting from mediation. On behalf of the Working Group, Ms Ninčić Osterle invited all interested parties to submit proposals for the development of new legislative and strategic solutions which would contribute to a greater application of mediation and, simultaneously, the unburdening of the courts, as well as improving access to justice for the disputed parties.