It is an excellent idea to professionalize mediators

I was intrigued by the proposal related to the preparation of a new law on mediation, which concerns the professionalization of mediators and their very important role in today’s society. Specifically, the draft proposal for the law would make mediation mandatory for certain types of disputes, thus giving mediators an important role. Until now, our society has not recognized this form of reconciliation before parties start suing each other in courts.

Therefore, Ivana Mintas Kos (the commentator who signed in the public consultation, a certified mediator at the Medias Center for Mediation, Negotiation, and Communication) believes that the new law is an opportunity for mediation to truly develop and create a useful and profitable economic branch, as well as an important segment of legal practice. However, the current draft law does not encourage this, according to the commentator:

– Instead of opening space for professional mediators who actively work and develop this activity outside state institutions, the legislative proposal is aimed at increasing the number of civil servants or at least preserving existing positions in public bodies. In this way, mediation is again not recognized as a market service that can generate jobs, employment, and sustainable development of the entire branch of professionals, but is administratively tied to the state.

Possibility of Improvement

According to the Proposal, state institutions or those authorized by the state would be competent for mediation; however, the commentator believes that parties should be allowed to turn not only to the future national center but also to any certified mediator registered in the Register of Mediators and existing mediation institutions. The benefits, she emphasizes, would be multiple: parties would be ensured freedom of choice and greater availability of mediators, professional mediators would have space for work and development, and the state would be allowed to relieve the courts and create a market that lives independently and creates added value.

– Otherwise, mediation risks remaining yet another formal solution on paper instead of becoming what it should be: an effective, accessible, and sustainable way of resolving disputes, for the benefit of both citizens and the economy – believes the commentator.

In this case, it is not about whether something is fair or unfair, but the idea primarily provides the opportunity to, on one hand, improve mediation and, on the other hand, relieve other civil servants who will work on such matters. Moreover, it seems that more mediators will be needed than before because the new law on mediation, unlike the current Law on Peaceful Resolution of Disputes (it is unclear whether the first law changes the current one or supplements it), stipulates that mediation is mandatory for certain types of disputes (which also include legal entities). Thus, all mediators could be burdened with these tasks, including those judges of commercial courts who, in addition to adjudicating, also perform this work.

For this reason, the idea of professionalizing mediators seems good to me, although practice may show that there is no progress. But why not try? Perhaps the danger for this idea is that future mediators as professionals could become complacent because they will have secure clients due to mandatory mediation, but such a danger also threatens if we leave it to civil servants.

Best Recommendation

However, if parties were to choose mediators, then the success of mediation would be their best recommendation for being chosen by other parties. This reflects the market determinant that could increase the percentage of reconciliations and thus reduce the number of lawsuits in courts. Therefore, the interest in professionalization would not only be for mediators but also for courts, and ultimately for society.

I would like to remind you of the words of Judge Iva Buljan at the Commercial Court in Zagreb, who a few months ago in an interview for Lider said that the number of mediations is ‘in some way a reflection of the civilizational state of a society’. We cannot boast about this in Croatia. The number of mediations will increase due to the legal obligation, but it can be popularized by motivated professional mediators. Therefore, if nothing else, the proposal by Ivana Mintas Kos should be considered.

POST SCRIPTUM

The Law on Peaceful Resolution of Disputes (ZMRS), adopted two years ago, defines mediation as any process – regardless of whether it is conducted in court, in a mediation institution, or outside it – in which parties seek to amicably resolve a dispute with the assistance of one or more mediators. The problem is that parties generally do not know about this possibility, as Judge Iva Buljan (who is also the head of the Mediation Department at the Commercial Court in Zagreb) told us. Precisely because the goal of ZMRS – the popularization of mediation – has not been achieved, the new law introduces mandatory mediation instead of voluntary mediation.