Local Profile

Situation of mediation in Bosnia and Herzegovina

Mediation is regulated as a dispute resolution by the Laws on Civil Procedure on a state level of BiH and entity levels of Republika Srpska and Federation of BiH and Laws on Criminal Procedure on entity levels. Based on these laws, the Parliamentary Assembly of BiH adopted on June 29th 2004 the Law on Mediation Procedure in BiH (Official gazette of BiH, 37/04) and on July 28th 2005 the Law on Transfer of Mediation Activities to the Association of Mediators (Official gazette of BiH, 52/05). By this Law the Association of Mediators in BiH (AMBiH) is authorised for providing of mediation services in the country.
Mediators have to meet the following criteria: a) general requirements for employment, b) have a university degree c) completed the mediation training according to the programme of the Association or according to another training program recognised by the Association, c) enter the Association’s registry of mediators. Mediation procedure is also mentioned in the Criminal codes of Republika Srpska and Federation of BiH in terms of legal-property claims. Misdemeanours Act of BiH predicts mediation in legal property claims as well. In the District of Brčko (administration unit in North East of Bosnia out of the competencies of the entities), mediation is regulated by the Mediation Rule, according to which judges perform mediation. We assume harmonisation of mediation procedures in the District and the rest of the country will start soon. Precise mediation procedure, case management, costs of mediation, training of mediators, procedures in case of violation of mediation rules and principles etc. are regulated by the Rules adopted by Association of Mediators in BiH.

Currently, mediation is provided in two pilot projects in two biggest towns in the country / Banja Luka and Sarajevo. The cases are referred from the court and mediated in the Association of Mediators’ offices. Until the end of 2006, in more than two years period, close to 600 cases have been mediated, out of which nearly 60% ended with agreement. The rate of fulfilment of agreements is more than 90%, except in labour cases where state owned companies took part (the percentage is lower). From January 2007 we expect transfer from pilot phase into full implementation of mediation in BiH according to the mediation laws and rules.

Mediation is beginning to be used in family cases in the entity of Federation of BiH regulated by the Family Law (Official Gazette of FBiH 58/05) of this entity. The Law regulates compulsory mediation before the divorce procedure, where the role of mediator is to remove the causes of conflict between marital partners and settle the dispute, inform them of the consequences of divorce and in case settlement is not possible to mediate negotiations and help them reach agreement about parental care and other related issues. After this procedure the case is referred to the court to complete the procedure. There are still no statistical data about success of this field of mediation.

Apart from mediation regulated by the law, mediation techniques are used by numerous nongovernmental organisations supporting interethnic dialogue and reconciliation in this country that suffered four years of war. The first learning about interethnic and political mediation in Bosnia and Herzegovina came from the experience of international mediator Christian Schwartz Schilling who mediated conflicts between different ethnic groups, authorities and citizens, in order to facilitate return of refugees and protection of human rights.

Challenges to mediation in Bosnia and Herzegovina

Main challenges mediation faces in Bosnia and Herzegovina are acceptance of mediation by all stakeholders countrywide, including judges, lawyers and parties in disputes to select this process for solving their issues. Currently, there is a positive attitude towards mediation from judicial sector and lawyers who took part in the training programme or pilot projects of providing mediation services in Banja Luka and Sarajevo. There is a need to increase the number of cases both referred from the court to mediation and those coming from community. Currently the Association of Mediators in BiH and mediation services are financed by foreign donations, fees charged for trainings and membership fees. From January 2007 mediation services will be paid by the parties, which is one of the conditions for self sustainability of the system. Further efforts need to be made to present the public that these costs, time and meeting of interests in mediation are cheaper and simpler and provide benefits to the parties to greater extent than the court procedures.

Training for mediators

Training for mediators is provided by the Association of Mediators in Bosnia and Herzegovina which is authorised for providing mediation services in the country. There are obligatory basic (5 days) and advanced (2 days) trainings provided by the Association of Mediators in accordance to its own programme consisting of:

1. theories on conflicts,
2. analysis of conflict,
3. dispute resolution methods,
4. alternative dispute resolution,
5. negotiation
6. steps to the agreement in negotiation process,
7. negotiation styles,
8. role plays on negotiation,
9. mediation,
10. basic principles of mediation,
11. phases of mediation process,
12. comparison of mediation and court procedure,
13. communication skills,
14. mediation role plays (each candidate must pass all the roles in the process for at least 3 times)
15. legal framework for mediation in BiH,
16. implementation of mediation in BiH,
17. procedures and forms used in mediation model in BiH
18. models of mediation in other countries
19. Watching of a video taped mediation of observing real mediation session.

Additionally, Association provides education in drafting a settlement document with executive power, mentored mediations, trainings for lawyers, judges and end users about their role in the process and benefits of mediation. The Association also provides Training of Trainers programme and mentoring and certification of the new trainers. All training programmes were developed by Associations’ experts and with consultancy of Canadian Institute for Conflict Resolution. Developing of programmes and pilot training for trainers was financed by Canadian Agency for International Development (CIDA).
There are very few other trainings or seminars related to mediation implemented occasionally mostly by foreign organizations (Canadian Institute for Conflict Resolution, ABA CEELI, International Finance Corporation, Centre for Effective Dispute Resolution, etc). Other local and international organisations organise conflict resolution workshops, mostly focusing on communication skills. However, the AMBiH’s programs are the only trainings on mediation that are organised on a regular basis.