Chicago International Dispute Resolution Association

Mediation in Bosnia and Herzegovina: A Second Application

Mediation may even address some of the more general problems in BiH. Studies show that mediation can improve access to justice in a variety of ways. Mediation can help poorer segments of society participate in conflict resolution where they might not have been able to afford an attorney for traditional litigation.81 Mediation can take place in rural areas or areas not served by a courthouse.82 It can occur on weekends or evenings so that participants do not have to take time off of work. A proposed EU Directive promoting mediation in civil and commercial matters identifies its primary objective as ensuring better access to justice.83 Mediation’s generally informal nature may also appear less intimidating to people who view the government with suspicion or fear.84

Mediation may improve citizens’ attitudes towards the BiH judicial system in general. As mentioned, studies show that the BiH judicial system is currently held in very low regard by the population.85 Mediation’s emphasis on party-centered decision-making provides better opportunities for parties to resolve cases in a manner consistent with their interests. Since resolutions are voluntary, mediation eliminates the inherent coercion that a court judgment entails. Studies show that mediation tends to have a very high user satisfaction rate. 86 As a result, mediation parties will view the general judicial system more positively, which should improve the rule of law.

Mediation might actually help strengthen democracy. In several cases, mediation has played a role in preparing community leaders, increasing civic engagement, and developing public processes that facilitate restructuring and social change. In South Africa, for instance, mediation programs helped prepare the country for a peaceful transition out of the apartheid era.87 There, an NGO called the Independent Mediation Services of South Africa began mediating labor disputes in the 1980s.88 The program was very successful by conventional measures, but the most interesting aspect was its impact on social change. It is credited with developing and training community leaders who went on to hold significant positions in the post-apartheid governments.89 It is reported that “their mediation training and experiences helped develop skills in consensual approaches to problem-solving and policy development.”90 At the end of the transition negotiations, the lead National Party negotiator indicated that “the success of the negotiations and the success of the [various mediation services] helped redirect the country from a culture of violence to a culture of negotiation.”91 Reports also indicate that mediation programs in the Philippines and Ukraine are helping to build an ethic of civil engagement.92

Perhaps, mediation can strengthen democracy in BiH. Under the control of communism, BiH citizens were not accustomed to taking personal responsibility for decisions.93 Furthermore, they were not experienced in the art of compromise. Citizens had the choice of acquiescence in governmental action or protest.94 In the event that one decided to protest, one usually became a dissident and had to be an “uncompromising absolutist.”95 As a result, many of the democrats” in post-communist societies have found the transition from an authoritarian system to a compromise-based democracy difficult.96 The use of mediation (with appropriate training) might help build a needed culture of compromise.97 Both parties and representatives might begin to explore non-confrontational ways to address conflicts and begin to take personal responsibility for resolving them.98 This is especially crucial for BiH given the fact that ethnic tensions remain and compromise on these issues is of paramount importance to the survival of the state.99 While it is impossible to predict with precision the kind of impact mediation might have on BiH’s fractured society, the foregoing suggests that, given sufficient time and resources, a well-conceived program might promote consensual approaches to problem solving and public policy debate, thereby strengthening this post-conflict, nascent democracy.

81. ADR Guide, supra note 71, at 13, app. B. Sri Lanka Case Study, Bangladesh Case Study. back
82. FRED E. JANDT & PAUL B. PEDERSEN, CONSTRUCTIVE CONFLICT MANAGEMENT: ASIA PACIFIC CASES (Thousand Oaks, 1996), cited in ADR Guide, supra note 71, at 14. Note the interesting example of the over one million voluntary, village-based People’s Mediation Committees in China, created by the 1982 constitution. back
83. See Commission Proposal for a Directive of the European Parliament and of the Council on Certain Aspects of Mediation in Civil and Commercial Matters, COM(2004)718 final – 2004/0251 (COD), available at http://europa.eu.int/eur-lex/en/com/pdf/2004/com2004_0718en01.pdf [hereinafter Proposed EU Directive]. For additional discussion see infra note 138. back
84. Alkon, supra note 68, at 354. back
85. See World Bank Survey, supra note 43, at 49. back
86. See, e.g., ADR Guide, supra note 71, app. B, Sri Lanka Case Study, Bangladesh Case Study. In addition, “user satisfaction is often an indirect proxy for more focused issues like cost, access and delay.” Id. at 12. back
87. Id. at 11, 17-18, app. B, South Africa Case Study. back
88. Id. back
89. Id. at 18. back
90. Id. back
91. Id. at 11, app. B, South Africa Case Study. back
92. Id. at 18. In the Philippines mediation is being used to manage land reform issues, and in Ukraine it is being used to “manage economic restructuring issues in the mining and steel industries.” back
93. This is to be expected in a society that emphasized the primacy of the collective. back
94. Emily Stewart Haynes, Mediation as an Alternative to Emerging Post-Socialist Legal Institutions in Central and Eastern Europe, 15 OHIO ST. J. DISP. RESOL. 257, 275-76 (1999). back
95. Michael T. Kauffman, From Dissidence to Dissonance, TRANSITION 5 (Feb. 21, 1997), quoted in id. at 276. See also, Raymond Shonholtz, A General Theory on Disputes and Conflicts, 2003 J. DISP. RESOL. 403, 408-09 (2003). back
96. Haynes, supra note 94. back
97. Although there are no current statistics, anecdotal evidence indicates that BiH practitioners rarely compromise claims by settling cases out of court. back
98. In many post-communist societies, there is a desire to “shift individual responsibility to an omnipotent patriarchal social father.” Dusan Ondrusek, The Mediator’s Role in National Conflicts in Post-Communist Central Europe, 10 MED. Q. 243, 247 (1993). The problem of lack of personal responsibility in BiH is even more acute than in neighboring post-communist countries. Because of BiH’s unique history, most important decisions were made exogenously by foreigners. For hundreds of years, BiH was part of the Turkish Ottoman Empire and important governance decisions were made in Istanbul. In the nineteenth century, when BiH become part of the Austro-Hungarian Empire, control shifted to Vienna. In most of the twentieth century, decisions were made in the Yugoslav capital, Belgrade (in Serbia). Following independence, NATO essentially forced an end to the BiH civil war. Since then, the internationally-run OHR has controlled the governance process. See supra Part II. As a result, BiH citizens have had little responsibility or experience truly governing themselves. back
99. Mediation can help in post-conflict societies like BiH. Nancy Erbe, The Global Popularity and Promise of Facilitative ADR, 18 TEMP. INT’L. & COMP. L.J. 343 (2004); Haynes, supra note 94, at 275-80. Relative to the survival of BiH as a state, see Timothy Waters, Contemplating Failure and Creating Alternatives in the Balkans: Bosnia’s Peoples, Democracy, and the Shape of Self-Determination, 29 Yale J. INT’L. L. 423 (2004), for an argument that BiH is a de facto failed state and that de jure partition should be considered. See also ADR Guide, supra note 71, app. B, South Africa Case Study. back

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