Category: Blog Tags:
It is well-known that the rule of law, as the basic prerequisite for any development, is not at an enviable level in Kosovo, the mechanisms are slow and they are not functioning in a synchronized manner, justice is being selectively applied - all this results in mistrust in the judicial system and fear for legal security. However, I will not deal with these segments here, because the causes of institutional dysfunction are too broad. Instead, I will focus on one segment, the one I specifically deal with, and which, to a small extent, can contribute to the improvement of the rule of law and the greater functionality of courts. First of all, it is necessary to clarify the notion of mediation, as a mechanism for access to justice that exists in Kosovo. At the very beginning, there is a problem with understanding the term. What is mediation? And which one of these two synonyms is to use? Mediation is a term generally accepted among legal professionals, which, by the way, sounds confusing, as it is not much described in the Serbian language, especially to the people in the north who did not have any experience with the judicial system in Kosovo. True, they had little experience with the Serbian judicial system, as well, since it functioned in limited capacity for the past 20 years. Mediation is a legally regulated process in Kosovo, in which a mediator helps two or more parties resolve the dispute between them, with their own consent. The basic principles of mediation that must be respected for a successful process are: confidentiality and privacy, voluntariness, consent and equality of parties, impartiality of mediators, efficiency and legality of the process. In contrast to the judicial resolution of cases, where the court decides and makes decisions, mediation offers more sustainable solutions, through an agreement and understanding of parties, i.e. provides the parties with ownership of the dispute and its solution. In addition to the fact that mediation provides efficiency in resolving disputes in a non-formal atmosphere, the most important of all is that agreements signed by the parties in the mediation process have the weight of a final, legally valid decision. In Kosovo, mediation was regulated for the first time by the Law on Mediation from 2008, which enabled citizens to seek a solution for their civil proceedings in court through mediation. Also, it is possible that misdemeanor cases, even those that are punishable with up to 3 years of imprisonment, with the exception of cases of domestic violence, can be solved by mediation. The procedure for forwarding a case to mediation starts either by the court or the prosecution, or the parties themselves may request that the case be forwarded to mediation. If the case is resolved successfully, the agreement is sent for verification by the court, or the prosecution, and the case is successfully closed. If, however, the case is not resolved through mediation, the same is returned to the court or prosecutor's office. So, parties cannot bear any loss. For the past 6 years, mediation activities have been implemented by the Mitrovica Center for Mediation, which, in cooperation with the Basic Court and Prosecutor's Office in Mitrovica, has solved over 1,300 cases with a 95% success rate so far. Due to the lack of legal framework, mediation services were not institutionalized, and the Center was established as a non-profit association that administers all cases forwarded to mediation by the judicial authorities in charge of the Mitrovica region, coordinates work with parties and mediators, conducts information sessions and mediation sessions, and, finally, it coordinates cooperation with institutions. The number of cases settled through mediation was not satisfactory in the beginning, but it grew year by year. For example, in the first year of its work, the Center solved only 11 cases, while only last year, in 2018, 493 cases were resolved. This number is constantly growing from the moment of integration of the judiciary, and the practice in the past year speaks that more than 100 cases are being sent monthly to the Center for Mediation from the Basic Court and the Prosecutor's Office in Mitrovica. Sixty five percent (65%) of them enter the mediation process, while in other cases the parties prefer to choose a court procedure. In August 2018, a new Law on Mediation was adopted, which was supposed to improve the previous legislative framework, institutionalize mediation and make it more efficient. It is foreseen that, through the process of institutionalization, one person will be employed in each of the seven regional basic courts, and these persons will be in charge of all the aforementioned duties of the Mediation Center. Furthermore, the new law provides for mandatory mediation in cases of family law and property disputes, which means that all the cases that are characterized as such are primarily forwarded to mediation by judges. It has so far been the discretionary right of judges or prosecutors to propose the possibility of mediation to the parties, or not. Although the law has not yet begun to be fully implemented, there are indications that it may have negative implications and even jeopardize current practices, bearing in mind the above-mentioned legislative changes, practices and situation on the ground. Let us take the example of the Basic Court in Mitrovica, which, according to estimates, has 70,000 archived cases waiting for processing and a current practice of forwarding over 100 cases monthly to mediation. This number of forwarded cases will certainly increase, due to an article of the law that requires judges and prosecutors to forward cases of family law and property disputes to an obligatory mediation. On the other hand, the legal mechanism provided for the implementation of these provisions is narrowed down to one officer who is to implement all the work that is currently, during the full-time work, is done by four administrators of the Mediation Center. One employee, of course, will not be able to absorb all the duties and handle a large number of cases efficiently, and this threatens to endanger the highest value of mediation - and this is precisely the time efficiency. Furthermore, it threatens to further jeopardize the efficiency of the court, since mediation has so far been an excellent mechanism for reducing case overload and raising the efficiency of the court and the prosecution. A proposal for solving the problem would be to find a legal solution for employing additional staff who will deal with mediation within institutions. This particularly applies to the Basic Court in Mitrovica, because we are talking about a multiethnic region, where bilingualism is necessary.
