Conclusions and Recommendations 2024

Conclusions and Recommendations

Justice and Mediation for EU Integration: Regional Insights on Legal and Institutional Frameworks for Mediation and Increasing Mediation Case Numbers

14 November 2024

Sarajevo

The Regional Conference “Justice and Mediation for EU Integration: Regional Insights on Legal and Institutional Frameworks for Mediation and Increasing Mediation Case Numbers”, organized by CSSP Berlin Center for Integrative Mediation in collaboration with High Judicial and Prosecutorial Council of Bosnia and Herzegovina and supported by the German Federal Foreign Office, took place on November 14 in Sarajevo, Bosnia and Herzegovina.

It brought together a diverse scope of stakeholders from the judiciary and mediation systems of Southeast Europe including Ministries of Justices, Judicial and Prosecutorial Councils, Bar Associations, Mediation Chambers and Associations, Ombudspersons, the German ambassador to Bosnia and Herzegovina and representatives of the EU Delegation to Bosnia and Herzegovina, as well as civil society representatives. Participants from Albania, Bosnia and Herzegovina, Kosovo[1], Montenegro, Serbia, North Macedonia, Moldova, Turkey, and Germany attended the Conference, building on a series of previously organized regional events emphasizing the role of mediation as a vital tool for enhancing justice and legal processes as the region navigates it’s EU accession journey.

The Regional Conference was opened by Ambassador of the Federal Republic of Germany in Bosnia and Herzegovina, Dr. Thomas Fitschen emphasizing the importance of mediation for EU integration and evolving Acquis Communautaire and at the same time the necessity of tailoring mediation systems to each jurisdiction. On behalf of the EU Delegation in Bosnia and Herzegovina, Mr. Alfredo Strippoli, Head of Rule of Law, and Mr. Enrico Visentin, Program Manager for Judiciary and Anticorruption noted that mediation improves access to justice and that Bosnia and Herzegovina need to align its legal framework to meet EU standards, as ADR and mediation are under the focus of the EU screening process. The President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, Mr. Halil Lagumdžija in his opening remarks expressed that the Strategy for Alternative Dispute Resolution (ADR) in Bosnia and Herzegovina has been drafted in 2022 but with insufficient progress due to no developments at the levels of the Ministries of Justices. He also mentioned that the Conferences like this one offer valuable opportunities to learn from jurisdictions with more advanced mediation systems. On behalf of the Judicial Commission of Brčko District, its Vice President Mr. Dejan Đurović,  stated that the best European practices should be tailored to the context of Bosnia and Herzegovina. In the name of CSSP, a Board Member, Ms. Manuela Mangold and a Managing Director Mr. Christoph Lüttmann noted that the region has significant know-how and experience and that peer support and exchange is playing a key role for leveraging local and regional expertise.

After the opening remarks, sessions on legal reforms for EU Accession, court referrals and promotion of mediation followed, where distinguished participants shared their challenges, best practices and lessons learned from Southeast Europe.

The main results that emerged from the regional Conference are:

Conclusions:

  • Mediation and ADR are becoming an important part of the EU Acquis and are under the focus of EU screening processes.
  • There is an evident importance of aligning mediation and alternative dispute resolution methods with international and EU standards.
  • There is a need to looking into successful models of mediation systems, but they need to be adapted and tailored to the local context.
  • To advance mediation systems in different jurisdictions, there is a need for a collaborative approach and involvement of all relevant stakeholders, especially at the executive level and in judicial institutions.
  • In many jurisdictions, there is a lack of capacities and professionalism among mediators, but at the same time there is also a lack of the institutional support to mediators.
  • Most of the jurisdictions face cultural attitudes as an obstacle in the increasing number of mediation cases.
  • Data collection and monitoring often present obstacles and there are bypasses of the formal centers, leading to undermining statistical tracking of mediation cases.
  • Mediation services are being integrated in the state guaranteed free legal aid in Albania and Moldova, offering free legal aid under certain circumstances.
  • The 2024 EU Progress Report for Bosnia and Herzegovina[2] emphasizes the importance of ADR and mediation, stating that the Ministry of Justice still needs to adopt the mediation strategy proposed by the High Judicial and Prosecutorial Council in 2022 as part of the alternative dispute resolution mechanisms, which outlines legislative changes, training for mediators, and promotes mediation among court users and with the public.
  • Due to an effective collaborative approach and institutions such as the Ministry of Justice, the High Judicial Council, the High Prosecutorial Council and international organizations in Kosovo[1], a significant number of cases were referred to mediation in 2023, including 6,037 cases from courts and 2,792 from the prosecution, while over 8,000 cases were successfully resolved.
  • In Montenegro, there is a continuing positive trend in alternative dispute resolution and the system continued to expand (as mentioned in the 2024 EU Progress Report[3]), but despite success in 2023, the ADR system remains only partially effective and certain cases, such as labor and property disputes are excluded from mediation by the law.
  • Although the progress was noted in North Macedonia and from 2017 to September 2024, 5,400 mediation cases were processed with 360 cases in 2023, a decrease was noted due to ambiguities in the new law, slow formation of the National Mediation Council and discrepancies in the legal field.
  • In Moldova, there is lack of professional mediators as only 65 out of 900 certified mediators are actively practicing. The 2024 EU Progress report[4] mentions that ADR mechanisms are used in less than 1% of all cases, but also that in December 2023 amendments to the law on mediation integrated the services of mediation guaranteed by the state into the system of state-guaranteed legal aid (for criminal cases, civil and contravention cases) thereby extending the categories of people eligible for state-guaranteed mediation.
  • In Albania, the implementation of referral practices remains limited and more promotion is needed to encourage citizens to use mediation. A new evaluation scheme for judges includes how many cases they referred to mediation as part of their assessment. Part of the justice reform includes offering free legal aid to vulnerable groups, and mediation included in the primary legal aid.
  • In Serbia, cultural attitudes impact the acceptance of mediation, similar to other jurisdictions. Although there are efforts to promote mediation and there are 3000 mediators trained, few cases are brought to mediation due to distrust.
  • In Türkiye, mediation and alternative dispute resolution mechanisms are being promoted by celebrating “Mediation Day” and “Mediation Week”. There is a large number of cases related to rent disputes which are being solved through mediation. Nearly 6 million cases have gone to mediation in Türkiye, with a half a million resulting in agreements, particularly in rent disputes.

Recommendations:

  • Synchronize legislative frameworks in each jurisdiction with EU Acquis Communautaire, but also adapt and tailor them to local context.
  • Encourage involvement of and commitment from the governments to support mediation systems.
  • Encourage a collaborative approach and the involvement of different institutions and professionals such as judicial bodies, lawyers, notaries, judges, businesses etc. in mediation processes.
  • Build capacities of mediators through continuous and quality trainings.
  • Increase awareness and promote mediation, as lacking awareness of mediation remains a key challenge in many jurisdictions.
  • Establish more effective data collection of mediation cases, ensuring monitoring and providing statistics.
  • Strengthen legal frameworks and include mediation and ADR as a part of the judicial reforms and strategies.
  • Raise awareness among judges and prosecutors about benefits of mediation and to reduce the caseload per judge.
  • Promote mediation within different state institutions, for example in collaboration with free legal aid departments, offering access to justice to vulnerable categories.
  • Foster peer support and regional cooperation among the jurisdictions.
  • Mediation should become an integral part of the institutional framework, as this is essential for increasing mediation numbers and ensuring sustainability.
  • In all jurisdictions, the use of mediation should be expanded, such as applying it to commercial, family, labour, certain criminal offenses where feasible, and other cases.

[1] This designation is without prejudice to positions on status and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence.

[2] https://neighbourhood-enlargement.ec.europa.eu/bosnia-and-herzegovina-report-2024_en

[3]  https://neighbourhood-enlargement.ec.europa.eu/montenegro-report-2024_en

[4] https://neighbourhood-enlargement.ec.europa.eu/moldova-report-2024_en