The mediation process is initiated by addressing or referring to a mediator. Mediator can be recommended or chosen from our list of mediators or from the official registry within the Ministry of Justice. There are two types of mediation: the court-annexed mediation and the private mediation. A person can also be referred to mediation by court, advocate, local ombudsman, employees of the municipal and state authorities, employer, as well as the other party of the conflict. The mediation process can be conducted by two (or more) mediators who work as co-mediators. Upon the selection of a mediator, which may depend on where you live, and work, mediator’s experience etc., the mediator will conduct and interview with you in order to assess whether your case is mediable. If it is, the mediator will contact both parties in order to establish a suitable day for the mediation session. Prior to the session, mediator might request specific information to familiarize him/her self with the case.
At the very beginning of the mediation, during the opening statement, mediator introduces parties with the aim of mediation, the role of mediator, the rules and costs of the mediation process. In addition to that, the parties are free to agree upon the way the mediation process will be conducted in regard to the specific rules of the process. If the parties agree with the aforementioned rules, they conclude the agreement to mediate. The mediation process is conducted through joint sessions with the parties. During these joint sessions, each party presents its own view of the conflict or a problem and the mediator’s role is to enable them to listen and understand each other with the aim of reaching a mutually acceptable solution. If the mediator assesses that it is more expedient, he/she can conduct individual sessions. In that case, the mediator can, with the party’s consent, present the views of one party to the other one. Parties can withdraw from the mediation at any stage of the process. Also, mediation process can be terminated when the mediator assesses that the continuation of the process is not expedient. Finally, the mediation process can be successfully terminated with the conclusion of the mediation agreement.
Is it possible to initiate the mediation process at the beginning or during the judicial proceeding?
Parties can initiate and start the mediation process before and during the judicial proceeding. Once the judicial proceeding begins, the mediation process can be initiated in two ways: the judge can refer parties to the mediation if he/she assesses that the case is mediable or the parties themselves can suggest mediation. When the judicial proceeding is initiated the suspension of statute of limitations regarding the claim in the proceeding commences and that suspension cannot last more than 60 days. If the parties reach an agreement in mediation, that agreement has the force of an out-of-court settlement. Parties do not have to reach an agreement in mediation and a judicial proceeding thereafter continues.
The mediation process can be also initiated during the proceeding upon legal remedies as well as during the execution.
Unlike the judicial proceeding which is formal and mandatory for the respondent, mediation is an informal and voluntary process which both parties enter agreeably. Mediation is also a private process that remains strictly confidential, while court hearings are public. In the mediation process the parties are not presenting any evidence nor are trying to prove which party is wrong. They rather use the help of a trained mediator to negotiate and focus on the points they wish to agree on. Compared to the judicial proceeding, where a judge is usually the one making the decision, in the mediation process, the parties are those who are jointly making decision in a form of an agreement, while the mediator is an impartial party, whose only role is to control the process and enable the parties to reach a mutual agreement. An important feature of mediation is that it is a quick and inexpensive process opposed to the judicial proceedings which last long and can be a financial burden for both parties in the proceeding.
The mediation process is informal. Parties can withdraw from the mediation. The mediator can also terminate the process if he/she determines that the dispute cannot be resolved with mediation or if the continuation of the process is not expedient. If the parties reach an agreement, they sign the mediation agreement. This agreement must be signed by both parties, as well as the mediator. The mediation agreement has the force of an out-of-court settlement and it can be authenticated by a public notary or court. It is also possible that the parties will reach an agreement regarding only specific facts. In that case, a partial mediation agreement is concluded. In a case of a court-annexed mediation, the mediator is obliged to inform the court about the outcome of mediation.
The content of the mediation agreement is defined by the parties themselves. The agreement can be reached on all or some issues in the dispute between the parties. Also, if the parties do not reach an agreement on the legal issues, the agreement could be signed only on factual issues. In any case, the agreement must be in writing, signed by parties, mediator, and attorneys (if they have participated in the mediation process).
The mediation agreement has the force of an out-of-court settlement. This agreement has a force of an executive document if it contains executive clause-statement of the debtor in which he/she agrees that the creditor (other side in the mediation process) can initiate the procedure of compulsory collection of claims after the maturity of the claim. The second requirement is that the signatures of the parties and the mediator must be authenticated by a public notary or court.
Basic Training for Mediators is organized in accordance with the Regulation on the Program of Basic Training for Mediators. The training lasts for 5 days, from 09:00 to 15:00, with breaks in between. This accredited training is one of the preconditions for obtaining license to mediate and to enter the Registry of Mediators of the Ministry of Justice of the Republic of Serbia.
The Law on Mediation (“RS Official Gazette” no. 55/14) in Article 33 sets requirements for conducting mediation.
License for mediators is a public document certifying that the person fulfills all requirements for conducting mediation, as stipulated in Article 33 of the Law on Mediation. The first time the license is issued, it is valid for three years.
The license can be renewed upon request, after the expiration of the period for which it was issued. In order to renew the license, it is necessary that the mediator has at least ten hours of professional training in one year and has conducted at least five mediations during the term of the mediation license. Once renewed, the permit for mediation will be issued for a period of five years.
The license can be revoked if the mediator ceases to fulfill the requirements for conducting mediation or if he/she does not respect the rules of mediation process. This revocation is proposed by the Ministry, court, or other authority. The template of mediation license is prescribed by the Minister.
After the completion of the basic training for mediators, mediators can specialize in specific areas. Specialized mediation training is determined by a special act of the relevant professional organization, with the Ministry’s consent. State and other authorities, organizations and entities listed in the Law on Mediation (“RS Official Gazette “, no. 55/2014) issue certificates of completion of the basic and specialized training. The Ministry keeps records of issued certificates. Mediators who are participating in specialized training will be able to learn how to apply mediation in accordance with the specific features of the certain area. Also, one of the requirements for the renewal of the license for mediators, according to the new Law on Mediation (“RS Official Gazette “, no. 55/2014) is that the mediator has at least ten hours of professional training for mediators in the course of one year which also includes specialized training for mediators.
Terms mediator expert and expert mediator have different meaning and are important for the parties in the selection of mediators / co- mediators for the mediation process. Expert mediator is the expert of the mediation process. Special characteristics which define them are experience, success rate, credibility, and even the style of mediation that suits the parties. On the other hand, mediator expert is specialized for specific areas such as: family relations, labor relations, economy, discrimination etc. These mediators are also experienced and successful in conducting the mediation process in their respective areas. Parties choose the type of mediator that will conduct the process according to their own preferences and agreement, and can also, according to the specific features of the process, determine that both mediator expert and expert mediator conduct the co-mediation process.