Right is the highest and most sublime value of a democratic society, which finds its application through the state of the rule of law, through which equality and respect for human rights are achieved, which are the highest universal values. In addition to being important to define and apply the right, it is equally important to access it, whereby rights are achieved and protected. The functioning of the state of the rule of law is ensured by protecting rights, which is the highest universal value.
Kosovo, Albania, Macedonia, Serbia, Montenegro and Bosnia & Herzegovina, which belong to the Western Balkans, are under construction, development and continuous reform in every field, including their legal systems. Part of the ongoing developments and reforms is also their judicial system, due to the fact that it faces many challenges, most notably the large number of cases that have been waiting for years to be handled so that subjects of law can have access to justice and achieve or protect their rights. The large number of cases and their lengthy case handling directly hampers access to justice in the achievement and protection of rights for subjects of law in a reasonable time. In order for it to be in function of access to justice, the legal systems of the Western Balkan countries within the framework of the reform have also functionalised auxiliary mechanisms for the judicial system such as mediation and arbitration. Being functional in these states, mediation enables easier access to justice, which is a constitutional and legal right in these states, through which the achievement and protection of rights is enabled to subjects of law.
In these Western Balkan countries, the legal mechanism such as mediation has now been operational and has had a legacy of successful operation after 2010, being within the legal systems of these countries. From these data, mediation in these countries has been in direct function of access to justice, enabling the achievement and protection of the rights of subjects of law, and this is reflected in the construction of the state of the rule of law. By enabling access to justice, this has also been in function of the protection and respect of human rights, which these states are committed to their strict implementation which have incorporated in their legal system.
In the capacity of the constituent unit of the legal system, mediation in these countries must be further developed, advanced and be reliable to their citizens. Being developed, it creates legal certainty in the achievement and protection of the rights of the subjects of law. Legal certainty refers to the short time of handling and resolving disputes and disagreements between subjects of law, on the principle of legality and objectivity. For subjects of law, enabling the speedy resolution of disputes and disagreements through this access to justice, is the legal certainty. Legal certainty is extremely important for subjects of law due to the fact that this affects the trust they have created on the legal system, that in case they need the protection and achievement of rights, they will have a correct address and that is the system of mediation.
Access to justice, through the mediation mechanism, not only is directly reflected on the rights of subjects of law, it is also reflected on other areas that are important for the well-being of the citizens of the Western Balkan countries. Through access to justice, through mediation, we, have an impact on the judicial systems themselves, which affects a lower number of cases, as some of them find treatment in mediation and this has an impact on the relief of courts from some cases. In addition, it is of great importance to create a favourable climate for foreign capital investment in these countries, as this allows companies, in case of disputes and disagreements, to turn to mediation to resolve their disputes as a quick treatment possibility and the resolution of disputes and disagreements.
A very important effect is also in terms of time, where through mediation, the time of treatment and resolution of disagreements is extremely shorter in contrast to the judicial system where a case there lasts for years as a result of the burdening of courts with numerous cases. In addition, the mediation mechanism has a large reflection on the much lower financial cost of resolving a dispute or disagreement, namely, access to justice, unlike the much higher cost that is when they are treated within the judicial system. The mediation reflection is also on the economic development in the country, due to the fact that enterprises are enabled to treat disputes and disagreements between them through mediation, which is a very low cost, and a quick time of dispute resolution.
The Western Balkans countries need to invest heavily in the development of mediation by making mediation part of their legal systems, and by doing so, this is an expression of the commitment to provide subjects of law with access to justice, both in the judicial system and through that of mediation. Access to justice enables subjects of law to have legal certainty on the achievement and protection of rights. The legal certainty provided to subjects of law is the basic and an extremely important element enabling the functioning of state of the rule of law.
Mediation within the legal systems of the Western Balkan countries has been constantly evolving and reforming and has had a very large impact on access to justice. From the results, mediation has been performing an extremely important function in the construction and functioning of the state of the rule of law, being in harmony with the universal values of the democratic world. Being part of these values, the Western Balkan countries ensure that they are working to becoming part of the Euro-Atlantic family. The Western Balkans countries must invest as much as possible and develop mediation as it allows for fewer disputes and disagreements to be treated by the courts.
About the Author: Dr. Sc. Isuf Jahmurataj is Professor of Civil Law and Mediation Expert in Kosovo*