LAWON МЕDIATION IN DISPUTE RESOLUTION("Off. Herald of RS", No. 55/2014) |
Article 1
The present Law regulates the notion, principles, procedure and legal effect of mediation in resolving disputes, requirements for carrying out mediation, rights and duties of a mediator and training program for mediators.
Article 2
Mediation is understood to mean any procedure, regardless of the name, whereby the parties voluntarily seek to settle their dispute through negotiation, with the assistance of one or several mediators, who assist the parties in reaching an agreement (hereinafter: mediation).
Article 3
Mediation is applied in disputes wherein the parties may freely dispose of their claims, unless other law stipulates exclusive jurisdiction of a court or other authority, regardless of whether it is carried out before or after instituting court proceedings or other proceedings.
Mediation is possible particularly in property - legal relations the subject matter of which is fulfilment of an obligation of performance, in other property - legal relations, in family and commercial disputes, administrative matters, disputes in the field of environmental protection, in consumer disputes, as well as in all other disputes where mediation corresponds to the nature of the disputes and may help to resolve them.
The provisions of the present Law also apply to mediation in criminal and misdemeanor matters in respect of the property claim and damages, as well as in labor disputes, unless otherwise prescribed by a separate law.
The provisions of the present Law do not apply to resolution of disputes in relation to imposing and collecting the public revenues.
Application of Mediation Principles and Standards
Article 4
Matters not expressly governed by the present Law are resolved in accordance with the mediation principles envisaged by the present Law and mediation standards contained in the acts of the United Nations, European Union and the Council of Europe.
II INTERNATIONAL MEDIATION AND MEDIATION IN CROSS-BORDER DISPUTES
Article 5
International mediation, in terms of the present Law, is understood to mean mediation in disputes with a foreign element:
1) If the parties at the time of reaching agreement for mediation have a domicile or corporate headquarters in different states;
2) If the state wherein the parties have domicile or corporate headquarters is not the state wherein significant part of obligations from the commercial relationship needs to be performed, i.e. the state the subject matter of a dispute is most closely associated with.
If mediation in disputes referred to in paragraph 1 of the present Article is conducted in the Republic of Serbia, the provisions of the present Law are applied, unless the parties have agreed otherwise.
Mediation in Cross-Border Disputes
Article 6
The provisions of the present Law are also applied in cross-border disputes in civil and commercial matters, in accordance with law.
Cross-border dispute is understood to mean a dispute wherein one of the parties has a domicile or usual residence in a member state of the European Union (hereinafter: member state), whereas the other party does not have it on the day when:
- The parties have agreed to mediation after a dispute has arisen,
- The court has ordered mediation,
- The obligation to mediate has arisen under national law,
- The court wherein a lawsuit has been filed instructed the parties to mediation.
Notwithstanding paragraph 2 of the present Article, a cross-border dispute is also considered to be a dispute where, upon termination of mediation in resolving a dispute, between the same parties a court proceeding or arbitration has been initiated in a member state other than those where the parties have had a permanent or habitual residence on the day referred to in paragraph 2 of the present Article.
Domicile or Headquarters in Cross-border Dispute
Article 7
In deciding whether a party has a domicile in the territory of the Republic of Serbia before whose court the proceedings is conducted, the court shall apply the law of the Republic of Serbia.
If a party does not have a domicile in the Republic of Serbia before whose court the proceedings is conducted, in deciding whether the party has a domicile in another member state, the court shall apply the law of that member state.
A company or other legal person has its headquarters in the place wherein it has its registered seat, the seat of the managing authority or principal place of business.
In deciding whether a company has its headquarters in a member state before whose court the proceeding is conducted, the court shall apply the law relevant to resolution of conflict of laws.
Performance of an Agreement reached through Mediation in Cross-Border Dispute
Article 8
If a member state, in accordance with its regulations, guarantees ability of the parties or one of them, with the express consent of the other party, for a written agreement reached through mediation in cross-border dispute to become enforceable, the court in the Republic of Serbia shall recognize and enforce such agreement.
If content of an agreement in a member state has been entered into another enforceable legal instrument, in such a way that a court or other competent authority has upheld it by a judgment, decision or other enforceable legal instrument in accordance with law of a state wherein a claim has been filed, the rules relevant to recognition of such legal instruments apply to recognition of enforcement of that enforceable legal instrument.
The Commercial Court in Belgrade has the jurisdiction in case of a motion to recognize the enforcement of the agreement referred to in paragraph 1 of the present Article in cases where the commercial courts have jurisdiction, while in other cases the Higher Court in Belgrade is competent.
Article 9
Mediation procedure is carried out on voluntary basis, based on the express consent of the parties, apart from disputes wherein instituting mediation proceedings is envisaged by a separate law as a condition for conducting court or other proceedings.
The court or other authority which is, in accordance with a separate law, under obligation to indicate to the parties the possibility of applying mediation, is obliged to provide all necessary information with the aim of full awareness of the parties of the possibility of conducting mediation.
The obligation referred to in paragraph 2 of the present Article, the court or other authority may also execute by referring the parties to mediators.
Parties shall freely reach an agreement on manner of conducting mediation.
A mediator conducts the mediation in a manner he finds appropriate, taking into account the proposals of the parties, circumstances of the case and need for prompt dispute resolution.
Article 10
In mediation procedure, the parties are equal.
A mediator is obliged to ensure, taking into consideration all circumstances of the case, the equal status of the parties.
Participation and Attendance in Mediation Procedure
Article 11
In mediation procedure, the parties as natural persons participate in person.
A proxy of a natural person, as a party in mediation procedure, may participate in mediation procedure along with the party represented by him.
A legal entity, as a party in mediation procedure, is represented by a legal representative registered in an appropriate register, i.e. an authorized proxy.
Mediation procedure, with the consent of the parties, may also be attended by third parties designated by the parties.
Article 12
In mediation procedure, the public is excluded.
Article 13
All information, proposals and statements from mediation procedure or related to mediation procedure are confidential, unless otherwise agreed by the parties, except for those that must be communicated pursuant to law, for protection of public order, particularly where it is necessary in order to ensure protection of the best interests of a child or to prevent harm to a person's physical or psychological integrity, as well as in the event that it is necessary for implementation of the agreement of the parties.
The parties, their legal representatives and proxies, mediator, third parties attending mediation procedure, as well as persons performing administrative tasks for the purposes of mediation, are obliged to keep secret all information, proposals and statements related to mediation procedure and are liable for the damage resulting from breach of such obligation.
Article 14
A mediator in mediation procedure acts neutrally.
Article 15
Mediation procedure is conducted without delay, in the shortest time possible.
Admissibility of Evidence in other Proceedings
Article 16
Any proposals put forward in the course of mediation which are given solely with a view to concluding an agreement, cannot be used in court, arbitration or other proceedings, nor communicated in any other manner.
The parties, their legal representatives and proxies, mediators, third parties attending mediation procedure, as well as persons performing administrative tasks for the purposes of mediation, cannot invoke circumstances, testify or submit as evidence in any court or other proceedings:
1) The fact that one party has proposed implementing mediation procedure and expressed willingness to participate in such procedure;
2) Opinions and positions the party to mediation procedure expressed or suggestions put forward in such procedure solely with a view to reaching an agreement;
3) Possible methods of resolving a dispute put forward during mediation procedure by a mediator and the fact that the party to the procedure expressed willingness to accept the proposed method of resolving the dispute;
4) A document that has been prepared solely for the purposes of mediation procedure.
A court or other authority conducting the procedure shall not accept the proposals referred to in paragraph 2 of the present Article.
If in the course of mediation procedure a party has invoked any evidence that in other procedure may be withheld, the use of such evidence in mediation procedure does not imply consent to its use in other procedure.
Proposal for Initiating Procedure
Article 17
If one of the parties submits a proposal for conclusion of an agreement to undertake mediation, the other party is obliged to answer the stated proposal, within 15 days from the day the proposal has been served, in writing.
Where initiation of the mediation procedure is envisaged by a separate law as a condition for conducting a court or another proceeding, i.e. if the parties when concluding a contract have committed themselves to attempting to resolve their dispute through mediation before instituting a court or another proceeding, a party is obliged to propose in writing to the other party the conclusion of the agreement to undertake mediation.
Initiating Mediation Procedure
Article 18
Mediation procedure is initiated by concluding the agreement to undertake mediation.
If the parties in the course of a court or other proceeding agree to undertake the dispute resolution through mediation with stay of the court proceeding, mediation procedure is initiated by submitting the agreement to undertake the mediation to the court or other authority before which the proceeding is conducted.
In the case referred to in paragraph 2 of the present Article a stay of court proceedings occurs, which may be imposed only once on such grounds and cannot exceed 60 days.
Agreement to Undertake Mediation
Article 19
The parties and the mediator enter into the agreement to undertake mediation in writing confirming the mediator selection, governing respective rights and obligations in accordance with the mediation principles, establishing mediation costs and other issues of importance for conducting mediation.
Article 20
Mediation procedure is conducted by one or several mediators, designated by the consensus of the parties.
If the parties fail to agree on the mediator, they may request that the court or other authority before which the proceeding is conducted designates the mediator.
Article 21
A mediator cannot be a judge acting in the case regarding the dispute, i.e. an official deciding on the request of the parties related to dispute in administrative or other procedure.
Article 22
Mediator shall be recused from mediation procedure wherein he has personal interest or if for any other reason he is unable to act impartially.
Mediator is obliged to inform the parties of any circumstances that might raise doubts as to his impartiality.
Mediator may conduct mediation procedure also in the case where the parties, after being informed of the existence of the circumstances referred to in paras. 1 and 2 of the present Article, agree that he conducts the procedure.
Article 23
At the beginning of mediation procedure, the mediator gets the parties acquainted with the aim of mediation, role of mediator, rules and costs of the procedure.
The parties freely negotiate on the manner of conducting mediation by referring to certain rules of procedure or in some other manner.
Mediator may conduct joint or separate talks with the parties, as well as convey suggestions and positions of one party, with their consent, to the other party.
Each party may withdraw from further participation in mediation procedure at any stage of the procedure.
Mediator may terminate mediation procedure if he estimates that further implementation of the procedure is not worthwhile.
Article 24
Mediation procedure is terminated by:
1) Conclusion of an agreement on dispute resolution through mediation;
2) Mediator’s decision to terminate the procedure, since further implementation of the procedure is not worthwhile;
3) One party’s statement of withdrawal from further implementation of the procedure, except in the case of participation of several parties in mediation procedure, which after the withdrawal of one of the parties decide to continue the mediation procedure;
4) Upon expiry of 60 days from the date of conclusion of the agreement to undertake mediation, unless otherwise agreed by the parties.
If mediation procedure is conducted based on the instructions of a court or other authority, the mediator is obliged to submit a notification about the manner of termination of the mediation procedure to the court or other authority.
If the initiated mediation procedure, envisaged by a separate law as a condition for conducting court or other proceedings, is terminated in the manner referred to in paragraph 1, items 2) and 3) of the present Article, the mediator is obliged to inform the competent authority or organization of the mediation procedure outcome.
Effect of Mediation on Limitation Periods and Preclusive Time Limits
Article 25
With initiating mediation procedure begins the stay of the limitations period of the claim in relation to the request regarding which mediation procedure is conducted, which cannot last more than 60 days.
Upon expiry of the time limit referred to in paragraph 1 of the present Article, the limitation period continues to run.
If a statute establishes a specific time limit for filing an action, such period does not run while mediation procedure is in progress, but no longer than 60 days.
Agreement on Dispute Resolution through Mediation
Article 26
The contents of the agreement on dispute resolution through mediation are set by the parties to mediation procedure.
The agreement is drafted in writing and signed by the mediator, the parties to the mediation procedure and proxies attending the mediation.
The mediator participates in preparation and drafting of the agreement, if the parties to the procedure so agree.
If the parties to the mediation procedure fail to reach the agreement due to disagreement on legal matters, they may achieve written agreement on factual matters.
Factual matters covered by the agreement of the parties to the procedure shall be considered indisputable in court or other proceedings.
Agreement on Dispute Resolution through Mediation as Writ of Execution
Article 27
The agreement on dispute resolution through mediation referred to in Article 26 of the present Law may have the power of a writ of execution if the following requirements are fulfilled:
1) That it contains a statement of the debtor whereby he agrees that the creditor under the agreement on dispute resolution through mediation, after the claim becomes due, may initiate a compulsory enforcement procedure (enforceability clause);
2) That the signatures of the parties and the mediator are certified by a court or notary public.
Compulsory enforcement of the agreement on dispute resolution through mediation shall not be allowed if conclusion of such agreement is not allowed, if the agreement is contrary to public order, if the agreement is not eligible for enforcement or the subject of enforcement is impossible.
Mutatis Mutandis Application of the Law on Contracts and Torts
Article 28
The provisions of the Law on Contracts and Torts governing extrajudicial settlement apply mutatis mutandis to the conclusion, effect and termination of the agreement concluded in the mediation procedure referred to in Article 26 of the present Law.
Article 29
In the mediation procedure, each party bears its own costs, and common costs shall be borne in equal shares, unless agreed otherwise.
Common mediation costs include a reward for work of the mediator and reimbursement of costs that the mediator has incurred in relation to mediation procedure.
The amount of the reward for work and the amount of costs to be reimbursed are determined according to the Pricelist on Rewards and Reimbursements in Mediation Procedure adopted by the minister competent for justice affairs (hereinafter: the minister), unless otherwise agreed by the parties.
The parties are exempted from paying mediation costs under the conditions stipulated by a separate law.
Mediators may carry out mediation without reward.
V RELATIONSHIP BETWEEN MEDIATION AND COURT OR OTHER PROCEEDINGS
Instituting Mediation Procedure and Court Proceeding
Article 30
The parties may institute mediation procedure prior to or after the instituted court proceeding.
The parties may also institute mediation procedure in the course of appellate procedure or in the course of enforcement proceeding.
The parties which, in the case of dispute, have committed themselves contractually to attempting to resolve their dispute through mediation before instituting court or other legal protection proceedings, may withdraw from mediation procedure at any point.
Obligation to Pay a Fee in the Case when Agreement is reached to Resolve Dispute through Mediation
Article 31
If an agreement to resolve a dispute through mediation is reached after instituted court or other proceedings until conclusion of the first hearing in a trial, the parties may be exempted from payment of court, i.e. administrative fees, in accordance with the law governing court, i.e. administrative fees.
Provision of Technical Requirements for Implementation of Mediation
Article 32
If mediation procedure is instituted in the course of a court proceeding, the court shall enable implementation of mediation in the court building, outside working hours, in accordance with the Rules of the Court.
Requirements for Conducting Mediation
Article 33
A mediator is a natural person, who, in independent, neutral and impartial manner mediates between the parties to dispute.
In order to carry out tasks of a mediator, a person must fulfil the following requirements:
1) To possess legal capacity;
2) To be a citizen of the Republic of Serbia;
3) To have completed basic training for a mediator;
4) To have a university degree;
5) To not have been sentenced to unconditional imprisonment for a criminal offence deeming him unworthy to conduct the tasks of mediation;
6) To have a permit for mediation;
7) To be enlisted in the Register of Mediators.
In certain fields, special requirements for carrying out mediation may be prescribed by law.
In international mediation and mediation in cross-border disputes a foreign citizen may be a mediator as well, provided that he is authorized to conduct mediation in another state, on condition of reciprocity.
A citizen of a Member State may also be a mediator, provided that he is authorized to conduct mediation in the Member State.
Judges may perform mediation solely outside of working hours and without compensation.
Article 34
Mediator is obliged to:
1) Mediate in accordance with mediation principles and the Code of Ethics for Mediators (hereinafter: Code of Ethics) adopted by the minister;
2) In family disputes, act in accordance with the principle of the protection of the best interest of the child;
3) Carry out and terminate mediation procedure within the shortest period of time;
4) Submit to the parties calculation of costs;
5) Submit to the ministry competent for justice (hereinafter: the ministry) an annual report on conducted mediations containing information on the type of the disputed relationship, place where mediation procedure has been conducted and the manner of termination of the mediation procedure, while respecting the principles of confidentiality.
Mediator cannot impose a solution on the parties, make promises and give legal advice, nor guarantee certain outcome of mediation.
Article 35
The mediator is liable for any damage caused to the parties by acting contrary to the Code of Ethics, by his unlawful conduct, intentionally or through gross negligence, in accordance with the general rules on liability for damage.
VII ISSUING A PERMIT FOR MEDIATION
Procedure for Issuing a Permit for Mediation
Article 36
Issuing a permit for mediation is a procedure in which it is verified whether a person fulfils the requirements for carrying out mediation, prescribed by the present Law.
Article 37
Mediation permit is a legal instrument confirming that a person fulfils the requirements for carrying out the tasks of mediation.
A person who fulfils the requirements referred to in Article 33, paragraph 2, items 1) through 5) and paragraph 3 of the present Law is entitled to get the mediation permit.
Mediation permit is issued for the first time with a validity period of three years, and when renewed it is issued for a period of five years.
The mediation permit form is prescribed by the minister.
Article 38
Mediation permit is renewed upon request of a mediator, after expiry of the period for which it has been issued.
The request referred to in paragraph 1 of the present Article is submitted before the expiry of the period for which the permit has been issued.
In addition to the requirements referred to in Article 37, paragraph 2 of the present Law, a mediator must also fulfill the following requirements in order to have his mediation permit renewed:
1) At least ten hours of mediators’ professional development within one year;
2) At least five mediations during the validity period of the mediation permit.
Particular attention during the procedure of renewal of the mediation permit is paid to the fact whether a mediator observed the Code of Ethics when fulfilling the obligations prescribed by the present Law and secondary legislation.
Revocation of Mediation Permit
Article 39
A mediator’s mediation permit is revoked if it is established that he does not fulfill the requirements referred to in Article 33, paragraph 2, items 1) through 5) and paragraph 3 of the present Law, and if in the course of mediation he fails to comply with the rules of procedure envisaged by the present Law.
Proposal for revocation of the mediation permit may be filed by a court or other authority conducting a procedure and by the ministry.
Article 40
Procedure for issuance, renewal and revocation of the mediation permit is conducted by the ministry.
Procedure for revocation of the mediation permit is conducted before a commission appointed by the minister (hereinafter: the commission).
Upon a proposal by the commission, the minister passes a decision to revoke the mediation permit.
Administrative dispute may be instituted against the decision of the minister refusing the request for issuance and renewal of the mediation permit, i.e. decision revoking the mediation permit.
Procedure for issuance, renewal and revoking of the mediation permit is more closely regulated by a bylaw passed by the minister.
Article 41
The commission consists of three members, one each from the ranks of judges, mediators and the ministry, appointed by the minister for a period of four years.
Membership in the commission ceases before expiry of member’s term of office, if he request so himself or his office, i.e. employment or any other characteristic terminate that have been the basis for appointment to the commission.
Members of the Commission are entitled to remuneration for work which is set by the minister according to the number of cases processed by the commission.
Professional and administrative tasks for the commission are performed by the ministry.
The operation of the Commission is more closely regulated by the minister’s bylaw.
Article 42
A person who has obtained the mediation permit is enlisted in the Register of Mediators kept by the ministry (hereinafter: the Register).
The following are entered in the Register: first name and surname of the mediator, date and place of birth, information on professional qualification and occupation, information on completed training for mediator, address, E-mail address, telephone number, number and date of the decision on issuance, i.e. revoking of the mediation permit.
The Register is public and published on the website of the ministry.
The Register is kept as a unique public central database.
The Register is kept in accordance with the law governing personal data protection.
The manner of keeping the Register is more closely regulated by a minister’s bylaw.
Notion and Types of Training for Mediators
Article 43
Training of mediators is organized acquiring and improving of practical knowledge and skills needed for independent, efficient and successful carrying out of mediation tasks.
Training of mediators may be basic and specialized.
Completed basic training is the condition for acquiring the capacity of mediator.
Specialized training is organized for certain fields or types of disputes.
Article 44
Basic training program is determined by the minister’s bylaw.
Specialized training program is determined by a separate act of a professional association for a specific field, with consent of the ministry.
Accreditation for Conducting Training
Article 45
Training program referred to in Article 44 of the present Law is conducted by state authorities, other authorities and organizations as well as legal persons, based on the permission from the ministry.
Requirements and procedure for issuance of the permission referred to in paragraph 1 of the present Article, as well as the supervision over conducting of training are more closely determined by the minister’s bylaw.
The ministry keeps records of the issued permissions referred to in paragraph 1 of the present Article.
Certificate of Completed Training
Article 46
State and other authorities and organizations and legal persons referred to in Article 45, paragraph 1 of the present Law issue the certificates of completed basic and specialized training.
Certificate referred to in paragraph 1 of the present Article contains name and seat of a state and other authority and organization and legal person issuing the certificate, number and date of the certificate issuance, type of the completed training for mediators, as well as the first name and surname, date of birth and address of the person who has completed the training.
The ministry keeps the records of issued certificates.
The form of the certificate referred to in paragraph 1 of the present Article is regulated by the minister’s bylaw.
IX TRANSITIONAL AND FINAL PROVISIONS
Article 47
Persons who are, until the day when the present Law begins to apply, on the lists of mediators kept by the competent courts and other authorities or on the list of mediators of the Mediation Centre, as well as the persons who, until the day when the present Law begins to apply, have completed the training program for mediators, in accordance with the Rules of the Training Program for Mediators ("Official Herald of RS", No. 44/05), are not under obligation to complete basic training for mediators prescribed by the present Law.
Article 48
Mediation procedures that are ongoing at the day of entry into force of the present Law shall be finalized in accordance with the provisions of the Law on Intermediation - Mediation ("Official Herald of RS", No. 18/05).
Article 49
The secondary legislation prescribed by the present Law shall be adopted within six months from the entry into force of the present Law.
Until adoption of the secondary legislation referred to in paragraph 1 of the present Article, the secondary legislation adopted based on the Law on Intermediation - Mediation ("Official Herald of RS", No. 18/05) shall be applicable unless such legislation is contrary to the present Law.
Article 50
On the day the present Law begins to apply, the Law on Intermediation - Mediation ("Official Herald of RS", No. 18/05) is repealed.
Article 51
The present Law enters into force on the eighth day from the day of its publication in the "Official Herald of the Republic of Serbia", and begins to apply as of 1 January 2015, except for the provisions of Art. 6 to 8 and Article 33, paragraph 5, which begin to be applicable as of the day of accession of the Republic of Serbia to the European Union.