Chicago International Dispute Resolution Association

Mediation in Bosnia and Herzegovina: A Second Application

Some have argued that mediation and ADR are inappropriate for emerging judiciaries like BiH.100 The three main criticisms are (1) there is a lack of public trust in the legal system and that would carry over to a mediation program; (2) there is no credible threat of effective enforcement of the mediated settlement; and (3) mediation is an American export that is culturally inappropriate for societies like post-communist Europe.

The first concern arises from the fact that most post-communist judiciaries lack the requisite perception of procedural and substantive fairness. As a result, a mediation regime might suffer from the same distrust.101 However, the lack of public trust in the traditional judiciary and its personnel is actually one reason why people might turn to (non court-annexed, perhaps) mediation. Future mediators are more likely to be attorneys and expert lay persons, not sitting judges and thus, they will not carry the corruption stigma of those employed by the courts. There is no evidence that mistrust towards the traditional judiciary migrates to independent ADR institutions. To the contrary, a USAID ADR study found that mediation can be an appropriate alternative forum when the civil court system is discredited.102

The second concern is that these countries lack an effective enforcement mechanism for mediation settlements. Parties are less likely to agree to a mediated settlement if they cannot enforce the obligations contained in their mediated agreement.103 This is a significant concern, given the BiH judiciary’s inefficiencies.104 However, mediated settlements will now receive priority treatment under the new law and will be enforceable like a judgment.105 Thus, the settlement agreement enforcement process will be significantly streamlined. In addition, the relatively high legal expenses involved in defending an enforcement action should have some deterrence effect on potential agreement breachers. Finally, there are international programs currently working on improving the effectiveness of the enforcement divisions of the BiH courts.106 If these programs improve enforcement, mediation stands a better chance at success in BiH. Yet, regardless of enforcement efficacy, resort to court assistance might be less of a problem than is sometimes believed. Most international ADR institutions and programs report very high award compliance rates without national court assistance107 and there is no reason to believe that local BiH-mediated settlements would be significantly different.108

The final concern relates to the theory that American-style ADR exports are culturally inappropriate for BiH. One commentator has argued that “non-talking societies” like Eastern Europe will be less amenable to exportation and assimilation of mediation than “talking societies” like the United States and Latin America.109 While culture does matter and one must be sensitive to these issues, the evidence shows that legal exports (if that is the appropriate term) can flourish in a multitude of places.110 And mediation appears to be spreading throughout Central and Eastern Europe.111 Even the European Commission recommends the development of mediation mechanisms for BiH.112 Perhaps the best example of a nontalking society’s adoption of mediation is Slovenia’s Ljubljana District Court Mediation Program, which has successfully mediated a wide variety of cases.113

100. One commentator has labeled international assistance providers “arbitration conquistadores” for their ADR zeal. James M. Cooper, Essay: Access to Justice 1.1, 30 CAL. W. INT’L. L.J. 429, 432 (2000). back
101. Haynes, supra note 94, at 258. back
102. ADR Guide, supra note 71, at 10 (referring to programs in South Africa, Bangladesh, and elsewhere). back
103. Alkon, supra note 68, at 346-47. back
104. See ABA/CEELI JRI, supra note 27, at 15; World Bank Survey, supra note 43, at 43. back
105. See infra Part IV.B.3. back
106. Chemonics International, Inc. is currently working on a USAID-funded project called FILE (Fostering an Investor and Lender-Friendly Environment) that is focusing, in part, on judgment enforcement efficiency. Chemonics Intl., Filing for a future in Bosnia and Herzegovina, http://www.chemonics.com/projects/?content_id={99C1BB7D-8EAD-40B1-A025-DA14A45A7AB9} (last visited Mar. 1, 2006). In 2004, ABA/CEELI assisted in this effort by sending ten BiH enforcement judges and administrators to Slovenia to study that system and determine if any parts of the Slovene model could be adopted in BiH. That discussion is currently ongoing. back
107. See, e.g., Betty Southard Murphy, ADR’s Impact on International Commerce, 48 DISP. RESOL. J. 68, 73 (1993) (referencing ninety percent compliance rates); ADR Guide, supra note 71, app. B, Sri Lanka Case Study, South Africa Case Study. back
108. In fact, local BiH settlements might have an even higher award payment rate since the parties are likely to be geographically and culturally closer to each other than would be the case with international resolutions. back
109. Carrie Menkel-Meadow, Correspondences and Contradictions in International and Domestic Conflict Resolution: Lessons from General and Varied Contexts, 2003 J. DISP. RESOL. 319, 325 (2003). Menkel-Meadow claims that host country culture is an important consideration when introducing American legal concepts like mediation. Id. She believes that, for instance, Latin American culture is closer to American culture than the formal, detached legal culture in Europe and thus would be more amenable to informal American concepts like mediation. Id. at 324-325. back
110. Hans Dolinar, New Perspectives of International Commercial Arbitration in Europe, 10 GA. ST. U. L. Rev. 519, 524-27 (1994). Dolinar cites interesting historical examples of successful wholesale adoptions of foreign legal systems, including the Japanese adoption of the German Civil Code, the South American adoptions of the French Civil Code and the Turkish adoption of the Swiss Civil Code. See also, Jonathon M. Miller, A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process, 51 AM. J. COMP. L. 839, 840 n.5 (2003) (citing extensive literature on international legal transplants). But see Wade Channell, Lessons Not Learned: Problems with Western Aid for Law Reform in Postcommunist Countries (Carnegie Papers, Rule of Law Series No. 57, 2005), available at http://www.carnegieendowment.org/files/CP57.Channell.FINAL.pdf. Channell argues that international legal assistance often fails because it usually involves the “hasty transplant syndrome” whereby foreign laws are used as a model without sufficient local legal culture adaptation. back
111. See, e.g., Shonholtz, supra note 95, at 405-06. Shonholtz details examples of successful mediation programs throughout Central and Eastern Europe. See also Haynes, supra note 94, at 266-67. back
112. European Commission, supra note 39, at 103-04. back
113. Dept. of Alternative Dispute Resolution, District Court of Ljubljana, Memorandum No. 46, Court Annexed Programmes of Alternate Dispute Resolution 4-5 (Oct. 2004) (on file with author) [hereinafter Slovenia ADR Program]. The court estimates a success rate (defined as court settlement or abandonment of action) of 53.6%. Id. at 5. See also Alkon, supra note 68, at 350. back

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