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Chicago International Dispute Resolution Association
Mediation in Bosnia and Herzegovina: A Second Application
In addition, a dysfunctional court system can also prevent individuals
from enforcing human rights they have been granted in their laws.62
The BiH Constitution is unique in that it explicitly incorporates the
rights and freedoms set forth in the European Convention for the Protection
of Human Rights and Fundamental Freedoms (European Convention) and declares
that these rights “have priority over all other law.”63
In theory, this means that the highly developed case law of the European
Court of Human Rights (ECHR) is the supreme law of the land.64
However, the enforcement of these rights in BiH is questionable. For instance,
Article 6 of the European Convention guarantees the right of all persons
to a “fair
and public hearing within a reasonable time . . . ”65
It is likely that the slow administration of justice in BiH is violating
citizens’ human rights under this provision.
IV. MEDIATION AS A PRESCRIPTION
Mediation may be useful in addressing some of these problems.66 Like other forms of ADR, mediation is an alternative method of resolving disputes, outside of the traditional, adversarial, litigation-centered model.67 Mediation has been defined as a “process in which an impartial intervener assists two or more negotiating parties to identify matters of concern and then develop mutually acceptable proposals to deal with the concerns.”68 The neutral or mediator does not have binding authority to decide any issues. She can only help the parties resolve the matter if they are willing.69 Mediation can be part of an official court system (called “court-annexed mediation”) or it can be a stand alone procedure, completely independent of the courts.70 In either case, it is usually a voluntary procedure for all parties.
Mediation has been found to provide parties with a wide range of advantages over traditional litigation, including faster resolution and reduced costs.71 Developing country studies show that mediation can resolve cases much faster than traditional litigation. Mediation Boards in Sri Lanka, for example, resolved sixty-one percent of cases within thirty days and ninety-four percent of cases within ninety days, compared with the months or years it took to resolve cases in the courts.72 After six years of this mediation program, the Sri Lanka court backlog was reduced by fifty percent.73 Similarly, in BiH, mediation could help free up scarce judicial resources by reducing the number of hearings, trials, and eventually the number of cases. The HJPC cited the lack of mediation options as one reason for the significant case backlog.74
Another issue that might be mitigated by mediation in BiH is excessive dispute resolution costs. In BiH, lawsuits are expensive relative to local wages.75 Mediation has shown to be less costly than litigation.76 And, mediation may help reduce high legal fees by reducing the number of court appearances and eliminating the need for costly trials.
Mediation would also provide BiH parties the opportunity to develop more creative and appropriate solutions to disputes, instead of relying on general statutes, limited or non-existent case law, and potentially inconsistent decision-makers.77 The practical application of this benefit for the remaining war-related property and other disputes is clear. According to USAID studies, mediation may also be more effective than litigation for addressing disputes involving ethnic conflict.78 In addition, mediation can sometimes allow parties to resolve their disputes while maintaining their relationship.79 Finally, the voluntary nature of a mediated settlement makes participants less vulnerable to corruption and allows parties to circumvent potentially compromised courts.80
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62. See Dakolias, supra
note 42, at 88. back
63. BOSN. & HERZ. CONST., supra note
18, art. II, § 2. back
64. Morrison, supra note 14, at 152. back
65. Convention for the Protection of Human
Rights and Fundamental Freedoms, Nov. 4, 1950, art. 6, 213 U.N.T.S. 221.
An updated version of the treaty and protocols is available from the European
Court of Human Rights, http://www.echr.coe.int/echr.
back
66. Many international efforts are underway
to improve the judicial system in BiH. For instance, the international
community recently helped BiH adopt a new civil and criminal procedure
code that has radically changed the manner in which court proceedings
occur. These new codes have common law adversarial aspects, streamlined
pre-trial procedures and strict time limits for cases. See infra Part
IV.B. The number of justice sector assistance programs is too long to
list but several relevant examples include assistance with case management
development, judge and lawyer training, and court computerization. For
an update on U.S.-funded justice sector efforts in BiH, see http://www.usaid.ba/
(last visited Mar. 1, 2006). back
67. Some countries use the term “conciliation,”
but in general, conciliation and mediation refer to the same process.
For more discussion on the terms, see infra note 139. back
68. ALFINI ET AL., MEDIATION THEORY AND PRACTICE
(1st ed. Matthew Bender 2001), cited in Cynthia Alkon, The Cookie Cutter
Syndrome: Legal Reform Assistance Under Post-Communist Democratization
Programs, J. DISP. RES., 327, 350, n. 140 (2002). back
69. In contrast, “arbitration”
involves a neutral ruling on some or all of the contentious matters, which
can either be binding on the parties or non-binding. back
70. Most mediation programs in developing
countries are not officially connected with courts. But see Slovenian
court-annexed Ljubljana District Court Meditation Program, infra note
113. back
71. E.g., SCOTT BROWN ET AL., ALTERNATIVE
DISPUTE RESOLUTION PRACTITIONER’S GUIDE 7- 8 (Ctr. for Democracy
and Governance, USAID 1998), available at http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacb895.pdf
[hereinafter ADR Guide]. back
72. Id. at 15. back
73. However, the report authors caution that
a “direct empirical link has not been established.” Id. back
74. HJPC, supra note 3, ch. 1.1. The HJPC
also stated that mediation “may prove to be an efficient way of
reducing the number of cases coming before the courts in the future.”
Id. back
75. Attorneys’ fees are standardized
and they had been raised so high that a recent law was passed in the Federation
that limits legal fees for one day of work to the average monthly salary
in the Federation. ZAKON O IZMJENI I DOPUNI ZAKONA O ADVOKATURI FEDERACIJE
BOSNE I HERCEGOVINE [AMENDMENT TO THE LAW ON ATTORNEY’S PROFESSION],
18 Službeni Glasnik Federacije Bosne i Hercegovine, art. 31 (2005).
In the World Bank survey, only one in four respondent firms assessed BiH
courts as “affordable.” BiH was ranked the sixth least affordable
court system in Europe and Eurasia. World Bank Survey, supra note 43,
at 35. back
76. This is because it often involves lower
filing and administration fees, streamlined procedures, and sometimes
by-passes lawyer representation requirements altogether. ADR Guide, supra
note 71, at 16-17. back
77. Id. at 12-13, referencing studies of
mediation programs in Sri Lanka, Bangladesh, and the United States for
evidence that users often prefer mediation over litigation because of
the flexible and creative solutions available. back
78. Id. at 11. A mediation case study in
Bangladesh indicates that it may also counteract discrimination and bias
against minorities in the courts. However, there are also arguments to
the contrary. Id. at 14. back
79. Id. at 12. This is important for a society
like BiH, which places a high premium on personal relationships in business.
back
80. A corrupt mediator, however, might still
be able to coerce a party into settling through subterfuge or duress.
back
Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),