Response to the Ministry of Justice of the lawyer’s negative attitude regarding the adoption of the new law
Appreciating the lawyer’s profession and practice in the Republic of Serbia, I believe that the Commentary represents an attitude that is not in the professional spirit of Bona Fide and as such leads to a destructive result, which is for the time being delayed adoption of amendments to the Law on Mediation in Dispute Resolution.
The biggest opponents to drafting amendments to the Dispute Settlement Law are lawyers.
By taking the Oath of the lawyer’s, they pledged to defend the legal order of the state. Disputing the mediators and the mediation process, as well as the law defining their legal status of rights and duties, indicate that the lawyers did not follow the current acquis.
In the context that Serbia is on its way to the EU accession and has thus committed itself to introducing standards applied by EU Member States, including mediation as a model for more efficient and economical dispute resolution are new acquis.
Referring to the Oath of Attorney, attorneys are required to follow the current acquis communautaire of the Republic of Serbia. With the opening of Chapter 23, Serbia committed itself to efficient operation of the judiciary, resolving disputes as soon as possible. One of the mechanisms is mediation, which is still in the development stage in Serbia with the potential to become a respectable process that can prevent conflicts and effectively resolve them should they occur.
One of the objections is that mediation would burden the conduct of proceedings as well as the procedural and financial burdens that citizens would be exposed to. It ranges from the assumption, perhaps even the belief, that the mediation process would be unsuccessful anyway.
I also see a few inconsistencies in the positions that should persuade the Ministry of Justice, the Republic of Serbia and the European Commission to abandon the mediation in Serbia ex post facto. One of the illogicalities is that, on the one hand, it is argued that a regular court process has no alternative.
On the other hand, the Law on Civil Procedure (Article 305) is stated, which stipulates the obligation of the court to instruct the parties that they can resolve the dispute through mediation. The Code of Civil Procedure also provides the same recommendation of the court at the first hearing.
All that is said in the Commentary goes towards the elimination of the mediation process, which carries with it more harm than good. According to the mentioned law firm, the past work of the mediators has yielded unobtrusive results, stating that only 1% of disputed relationships were resolved through mediation.
The responsibility for the unenviable condition of the mediation field lies not only with the mediators but also with the other parties to the dispute. As the law firm has stated, there are a number of laws that allow parties to a dispute to resolve the dispute peacefully. That is why part of the responsibility is transferred to the other parties involved in the settlement of disputes, including lawyers.
In order for mediation to take root in Serbia, the support of all litigants, the collegiality and solidarity defined by the Code of Professional Ethics of Lawyers, is necessary. The comment on the amendments to the Law on Mediation in Dispute Settlement is precisely in favor of the fact that a significant part of the expert public disputes and degrades the mediation that is in the stage of development.
The worrying fact is that there is no goodwill that would contribute to a more efficient work of the judiciary, which is also an obligation that Serbia has taken upon itself by opening Chapter 23. Novelties regarding more efficient work of the judiciary, in addition to the current acquis are also the national interest of Serbia, which seeks a full-fledged membership in the European Union.
The objections to the Law on Mediation in Dispute Settlement by the Law Firm relate to the assumption that “in a state of legal certainty, no authority can be established by law, which by function and jurisdiction is a binding substitute for a court (mediator) in circumstances where it does not itself knows right.
Analyzing the Registry of Mediators reveals statistics that over 80% of mediators are law graduates, lawyers and judges. Therefore, these are persons who have a law degree as well as different degrees of postgraduate education. How can law graduates who, among other things, are lawyers and judges, be characterized as legally ignorant parties?
No one disputes the possibility of citizens as well as the right to resolve disputes before the courts.
The Commentary cites a law that provides the opportunity to “conclude a legal transaction through mediation or to settle a dispute amicably” and the Civil Procedure Code is cited as an example. The question arises whether the court’s obligation to instruct the parties to resolve the dispute through mediation is a mandatory part of the first / preliminary hearing. Is the opportunity for a peaceful settlement of the dispute properly implemented?
It is clear that part of the expert public is showing strong opposition to mediation as an alternative in dispute resolution. On the other hand, it is evident that litigation can last for several years, which is not in favor of the parties, the line ministry of the Government of the Republic of Serbia, and which is not in accordance with Chapter 23, which refers to the improvement of the work of the judiciary.
It is unambiguously concluded that in the process of creating amendments to the Law on Mediation in Dispute Settlement, there is a conflict that seeks to find a solution that will be of benefit to all interested parties.
The root of the conflict lies in the disagreement of a part of the expert public, lawyers who take a very rigid stand regarding the introduction and empowerment of a new practice – mediation.
Foreign practice with regard to the application of the mediation procedure has produced remarkable results. Concurrent mediation is an effective procedure in the prevention of conflict situations. Mediation gives positive results in:
Judiciary, Economics, Foreign policy, The media, Hostage crises, Social issues, Psychology, Education.
Mediation as a voluntary, impartial process that lasts very briefly over the duration of litigation saves time and money. Also, it should not be left out the emotional benefits because the parties to the conflict are not exposed to unnecessary and prolonged stress.
The stakeholders involved in resolving the conflict with a view to finding the ideal solution to the draft amendments are as follows:
Government of Republic of Serbia, Ministry of Justice, Lawyer’s Chamber, The High Judicial Council, The European Commission, Mediators, Citizens (litigants).
It is important to emphasize the important fact that the introduction of any novelty in the work inevitably leads to insecurity, fear of the unknown, rejection due to lack of necessary information.
In the process of drafting a new law, it is necessary to carry out communications of change. Detail informing of all interested parties on the news that will follow with the introduction of the new law as well as new practice- mediation.
One of the objections of lawyers is that they do not have all the necessary information, which is why a significant part of the commentary we make is reduced to a number of unfounded assumptions, negative prejudices and ultimately refusal to make any changes.
Pursuant to Chapter 23, which relates to the advancement of the work of the judiciary, the Ministry of Justice is making the necessary efforts to bring the standards of case law into line with those of the European Union. One of these standards is related to the introduction of mediation.
From the moment when Serbia has committed itself to fulfilling the requirements of the aforementioned chapter, more effective case law is part of the current legal order of Serbia, which lawyers are obliged to respect by referring precisely to the Lawyer’s Oath.
The Ministry of Justice aims to form a working group consisting of all interested parties, representatives of the Ministry of Justice, the High Judicial Council, the Courts, the Bar, the Judicial Academy, the Serbian Chamber of Commerce, the professors of the Faculty of Law, and mediators.
It is not possible to discredit mediation as well as mediators if mediators are empowered intellectually in the right way.
Improvement of basic and specialized training for intermediaries
It is desirable that the new law also envisages the participation of foreign accredited organizations and universities, thus opening the door to decades of mediation practice and experiences that would contribute to the promotion of mediation as a new activity in Serbia.
Improve existing programs by passing the necessary exams as a test of the acquired knowledge in the field of mediation, which will guarantee that the necessary knowledge in this field has been appropriately acquired.
Recognition of accredited programs in the academic, postgraduate, masters or doctoral programs is an additional link in the chain of strengthening the intellectual integrity of mediation as a new activity.
It should also be noted that mediation is not only significant in the segment of good case law, but also applies in areas such as:
International relations, Economics, The media, HR management, Politics, Education, Social work, Psychology.
This means that the application of mediation is not significant at times of conflict, but is also a great preventative mechanism to prevent conflict.