LAWON MEDIATION("Official Herald of the Republic of Serbia", No.18/2005) |
Scope of Application
Article 1
The present Law shall regulate the rules of mediation procedures (hereinafter referred to as: mediation) in disputes and in particular: property relations between individuals and legal entities; commercial, family, labour and other civil law relations, administrative and criminal procedures, in which the parties act freely, unless the law stipulates exclusive authority of a court or other relevant authority.
The provisions of the present Law shall apply notwithstanding whether mediation is executed prior or after opening the procedure for the settlement of disputes, with or without the instruction of the court or other body.
The provisions of the present Law shall not apply to termination of employment contract and minimum wage disbursal disputes.
Concept of Mediation
Article 2
Mediation is any procedure, regardless of its name, whereby the parties wish to settle their dispute through one or more mediators assisting the parties to reach an agreement.
Mediator shall not be authorized to impose a binding agreement on the parties.
Voluntary Basis
Article 3
Mediation is always carried out on the basis of the explicit agreement between the parties.
Equal and Impartial Treatment of Parties
Article 4
In a mediation procedure, the parties shall enjoy equal rights.
In a mediation procedure, the parties shall be treated equally.
Mediators shall act independently and impartially.
Privacy of Procedure
Article 5
In a mediation procedure, the public shall be excluded.
Parties, their legal representation and proxies shall participate in the mediation procedure, and third parties only with the permission of the parties.
All third parties who participate in a mediation procedure shall respect the principle of privacy of a mediation procedure.
Confidentiality
Article 6
All information, proposals and statements related to the mediation procedure shall be confidential unless otherwise agreed by the parties, except where law requires disclosure or for the purposes of implementation or enforcement of a settlement agreement, as well as when the public interest requires it.
Information, proposals and statements disclosed in the mediation procedure, exclusively for the purpose of settlement cannot be used in legal, arbitration or other procedures, nor can they be disclosed in any other way.
If presented, the court shall reject the information, proposals or statements mentioned in paragraph 2 of the present Article.
The provisions mentioned in paragraphs 1 and 2 of the present Article shall apply regardless of whether the legal, arbitration or other procedure relates to the disputable relation which is subject to mediation procedure.
Urgency
Article 7
Mediation procedures shall be considered urgent.
Opening of Procedure
Article 8
Unless the parties specify it otherwise in an agreement, the mediation procedure shall be opened with the acceptance of the proposal for the initiation of the procedure.
In case the party having received the proposal for mediation fails to declare in favor of the mediation procedure within 15 days from the date of receipt of the proposal, or within the period specified in the proposal, the proposal shall be considered rejected.
Implementation of Procedure
Article 9
The parties may agree modality for the implementation of the mediation procedure.
If the parties do not reach the agreement on modality for the implementation of the procedure, the mediator shall conduct the procedure under modality he/she finds suitable, taking into account the circumstances of the disputable relation and the interests of the parties, and respecting the principle of urgency.
The mediator may interview the parties jointly or individually, and, with the consent of the party, he/she may convey and present the proposals and positions on relevant issues to the other party.
The mediator may propose possible options for the settlement of the dispute, but he/she shall not propose the final settlement solution.
Closure of Procedure
Article 10
The mediation procedure shall be closed:
1. with the parties reaching an agreement;
2. with the decision of the mediator to close the procedure, upon consultations with the parities, if he/she finds that the continuance is not justified;
3. with the statement of a party on withdrawing from the procedure.
Legal Expiration and Preclusions
Article 11
Opening of the mediation procedure shall not interrupt the legal expiration of the claim.
Opening of the mediation procedure shall not influence the legal timelines for the instigation and conducting of the relevant procedure, except in cases when the mediation is a legal precondition for the instigation of such procedure under separate regulations.
IV MEDIATION UPON OPENING LEGAL PROCEDURE
Instruction to Mediation
Article 12
In case the parties propose it by a mutual agreement or in case the court finds that the dispute can be settled successfully through mediation, the parties shall be instructed to mediation.
The court shall instruct the parties to a mediation procedure upon the receipt of the defendant’s statement or after the preliminary hearing is held.
The court may instruct the parties to mediation, at a later point in the course of a legal procedure, prior to its legally valid closure.
Duration of Procedure
Article 13
A mediation procedure shall last up to 30 days.
The court or other relevant authority may prolong the mediation procedure duration due to a valid reason, at the request of the mediator or the parties.
Mediation in Appeal Procedure
Article 14
In an appeal procedure, the reporting judge shall, at the proposal of the parties and with their agreement, instruct the parties to a mediation procedure, defining a deadline of 30 days for the termination of this procedure, and suspend the decision on appeal.
A mediator in the appeal procedure shall only be a judge.
Continuation of Appeal Procedure
Article 15
In case mediation procedure has not been successful, and always within 30 days from the date of instruction, the appeal procedure shall be continued.
Agreement Between Parties
Article 16
The effectiveness of the agreement reached in the mediation procedure, depends on the will of the parties and the form in which the agreement was made.
The mediator shall inform the parties about the possible effects of the settlement agreement reached and on the means of fulfilling the obligations ensuing from such agreement.
At the request of the parties, the mediator shall take part in the formulation and drafting of the settlement agreement.
The settlement agreement reached during the mediation procedure, through the mutual compromise of the parties, closed before the start of a legal procedure or in the course of such procedure, shall have the character of an extrajudicial settlement, providing it is made in writing and it is not opposed to the public order.
The mediator shall immediately and without delay inform the court before which the legal procedure had been filed about the settlement agreement reached in the mediation procedure.
The settlement agreement reached between the parties in the mediation procedure shall have the power of a court settlement, provided the judge files it in the court registry, after he finds that it complies with the public interest.
If the settlement agreement is not reached in the mediation procedure due to disagreement about legal issues, the parties may conclude a written agreement about the factual issues. Such agreement shall bind them in further proceedings, if the mediator or other relevant authority certifies it and providing the parties agree to the disclosure of the information in the agreement.
Appropriate Application of the Law on Obligations and the Law on Legal Procedure
Article 17
The negotiations, effectiveness and termination of settlement agreements reached in the course of the mediation procedure shall be governed by the provisions of the Law on Obligations, regulating extrajudicial settlements, and the Law on Legal Procedure, regulating judicial settlements.
General Provisions
Article 18
A mediator is a third-party neutral person who mediates between two parties for the purpose of settling their dispute in compliance with the mediation principles.
Judges, lawyers and other prominent experts from different fields of expertise may act as mediators depending on the type of disputes in which they mediate.
List of Mediators
Article 19
The president of the court, i.e. head of other relevant authority shall appoint the mediator from amongst the prominent professionals (judges, lawyers, etc.) fulfilling the conditions for mediation stipulated by the present Law and shall include him/her in the List of Mediators (hereinafter referred to as: the List).
Mediators shall be appointed and included in the List at the request of the interested party, which could be submitted also through the mediators organization.
The president of the court, i.e. head of other relevant authority, shall notify the mediators organization on including mediators in the List.
The maintenance of the List shall be regulated in detail by the minister in charge of justice.
Requirements for Conducting Mediation
Article 20
A mediator must fulfil the following requirements:
1. A university graduate;
2. Minimum five years relevant work experience in dispute and conflict settlements;
3. Taken training programme for mediators;
4. Registered in the List;
5. Not under investigation and with no conviction for a committed crime;
6. Possess integrity of performing mediation role.
Exceptionally, a mediator may be also a person not fulfilling all the conditions mentioned in paragraph 1 items 1 - 4 of the present Article.
In disputes with a foreign element, a mediator can be a foreign citizen, providing he is authorized to perform mediation internationally, with consent of the parties.
The program for the training of mediators shall be specified by the minister in charge of justice.
Appointment of Mediators to Specific Cases
Article 21
In case of mediation prior to opening court or other procedure, the parties shall agree on a mediator or shall address the president of the court, i.e. head of other relevant authority, with the request to appoint a mediator from the List.
If the mediation is conducted after a court or some other procedure is opened, the parties shall agree on a mediator from the List.
In case the parties fail to reach the agreement, the president of the court, i.e. head of other relevant authority, shall appoint a mediator from the List in the listed order.
Exclusion of Mediators
Article 22
A mediator shall be excluded from the mediation procedure in case the mediator is the presiding judge, arbitrator or if he/she runs trial against the same parties in other dispute, or is the person who acts or has acted on behalf of the parties in other dispute.
A mediator cannot be a lawyer representing or having represented the parties in the procedure, or who is or used to be their legal representative or guardian.
Exemption of Mediators
Article 23
A mediator shall be exempted from the mediation procedure in case he/she has personal interests, or in other circumstances raising doubts about his/her impartiality.
A mediator shall inform the parties about all the circumstances that may raise doubts about his/her impartiality.
A mediator may conduct the mediation procedure also in the case mentioned in paragraph 1 of the present Article, providing the parties, after being informed that such circumstances exist, mutually agree that he/she may conduct the mediation.
Appropriate Application of Law
Article 24
The exclusion and exemption of mediators shall be governed by the provisions of the separate laws on exclusion, i.e. exemption.
Mediators’ Obligations
Article 25
A mediator shall conduct and conclude the mediation procedure without unnecessary delays.
A mediator cannot impose a solution on the parties.
A mediator shall conduct mediation in a neutral way, without any prejudices in regard with the parties and subjects to a dispute.
A mediator cannot make any promises and shall not guarantee the specific result of the procedure.
Mediators’ Rights
Article 26
A mediator is entitled to be informed about the circumstances of a disputable relation.
The parties shall present to the mediator all necessary information and their view of the disputable relation.
The parties shall present to the mediator the evidence necessary for the evaluation whether the agreement reached is against the public interest.
A mediator shall be entitled to reimbursement of expenses.
Mediators’ Liability
Article 27
A mediator shall be held liable for any damage caused to the parties by his/her illegal actions, in accordance with the general rules on liability for damages.
Agreement on Cost Settlement
Article 28
The parties may agree on the settlement of the costs of mediation.
Advance Cost Settlement
Article 29
The parties shall advance the costs of settlement in equal parts.
Final Cost Settlement
Article 30
When the mediation procedure is completed with a final settlement agreement, each of the parties shall bear their own expenses and share the mediator’s expenses in equal parts, unless otherwise stipulated in the agreement.
When mediation has not been successful, and the mediation was required in the procedure of the settlement of disputable relations, the decision on payment of mediation expenses shall be made in litigation or other procedure, along with the final decision.
When mediation has not been successful, and the parties instigated the mediation procedure prior to the procedure of the settlement of disputable relations, each of the parties shall bear their own expenses and share the mediator’s expenses in equal parts.
The expenses shall be determined in accordance with the Attorney’s Fees scale.
VII TRANSITIONAL AND FINAL PROVISIONS
Article 31
Within 90 days from the date of the present Law coming into effect, the minister in charge of justice shall adopt bylaws on the implementation thereof.
Article 32
The present Law shall come into force on the eighth day after its publication in the "Official Herald of the Republic of Serbia" and its enforcement shall be deferred for 90 days.