What is Mediation?

Mediation is an alternative dispute resolution procedure (method), a statutory extrajudicial activity, voluntarily conducted by the parties. In the mediation procedure, a judge does not take part in deciding about the case but the decision is made by the parties themselves, i.e. the parties to the dispute choose one or more impartial persons (mediators) to assist the parties in reaching a mutually satisfactory resolution of the dispute much faster, easier and cheaper than in court proceedings.

What are the principles of mediation?

Free will of the parties - The mediation procedure is conducted with the free will of the parties, expressed orally and in writing, in accordance with the legislation in force.

Equality of Parties - In the mediation procedure, the parties are equal and have rights and obligations in accordance with the legislation in force.

Impartiality and Independence - The mediator is fully independent and impartial during the mediation procedure..

Privacy and Confidentiality - The mediation procedure excludes the public. The mediation procedure is of a confidential nature. Statements and all other information regarding the mediation procedure may not, without the consent of the parties, be used as evidence in any other procedures. The mediator, parties and their representatives are obliged to maintain the confidentiality of the mediation procedure, unless the parties agree otherwise. With the consent of the parties, the mediation agreement may be made public in accordance with the legislation in force

What disputes can be resolved through mediation?

The provisions of the Law on Mediation apply to the mediation procedure in contested relationships of legal subjects in legal-assets, commercial, family, labour relations, other cases of property law disputes, such as rights related to the acquisition of property rights through contractual or inherited relationships, bankruptcy proceedings, other civil, administrative, and criminalcases, in which the parties can freely act their free will, unless the exclusive responsibility of the court, prosecution or other competent body is provided otherwise by separate law.

Mediation and mediation procedure do not apply to cases involving domestic violence, in accordance with the Law on Domestic Violence or any dispute for which the exclusive responsibility of the court or any other competent body is provided.

Mediation in the criminal cases applies in cases punishable by a fine and imprisonment up to three (3) years.

Mediation is applied to relationships of different contested natures but is not limited to the types of disputes as in the following lists.

Mandatory Mediation is a kind of referral process only by the courts and applies only to certain types of family law and property law cases. In such cases, if the judge, at his or her discretion, believes that the dispute can be resolved through mediation, then he or she will instruct the parties to hold an initial meeting with the mediator and discuss whether the parties will try to mediate the dispute. The parties are free to discontinue mediation after the initial meeting with the mediator. However, if the parties choose not to try mediation, they must try it for at least 30 days from the day the judge has referred the case to mediation before proceeding with court procedures.

The types of disputes to which mandatory mediation should apply are:

• family relationship disputes regarding alimony cases,
• custody,
• child support and contacts,
• division of joint marital property,
• property disputes related to the rights and obligations of the servitude rights,
• compensation of expropriated property.

Cases suitable for mediation under the Civil Law

The application of mediation in civil cases is one of the most appropriate cases to be mediated. In such unrestricted cases, the parties have the opportunity to directly address to the mediation offices or mediators to resolve their dispute without having to go to the court. However, even if the cases are already in the courts, the parties have the opportunity to resolve their dispute through mediation by proposing to the judge to refer the case to mediation.

Contested relationships in civil relations may be, but are not limited to:

• Disputes related to acquisition and loss of ownership of movable and immovable property
• Disputes related to pre-emption
• Disputes related to co-ownership
• Disputes related to joint ownership
• Disputes related to possession and co-ownership
• Disputes related to obstruction of possession
• Disputes related to mutual legal relations of the building unit owners
• Disputes related to “neighbouring right”, such as: duty of care, confusion of boundaries, boundary markings and structures, Tree on the boundary, emissions, fruits, branches and roots, access to retrieve animals, necessary passage, the rights of passage for buildings, temporary use of a neighbouring immovable property, collapse of a building, building over boundary lines, hazardous excavation, watercourse.
• Disputes related to property protection, such as: owner's claim for returning an object by the possessor without a right of possession, owner's claim against the bona fide possessor, possessor's claims in good faith by the owner, owner's claims against the bona fide possessor, possessor's claims in bad faith by the owner, request for removal and non-repetition of the infringement of property and any infringement of the possession or use of the property right over an object
• Disputes related to servitude
• Disputes related to burden of real right
• Disputes related to construction right
• Disputes related to non-performance or partial performance of contracts
• Disputes related to compensation for material and non-material damage
• Disputes related to compensation in the form of cash royalties
• Disputes related to the right of residence
• Disputes related to the administration of a child's property by a parent entrusted with the raising and education of the child
• Disputes related to personal and property consequences between spouses following the divorce
• As well as other disputes considered as appropriate for mediation.

Cases suitable for mediation under the Law on Labour

Disputes emerging from the employment relationship can be referred to mediation procedure as assessed by the court and with the consent of the parties in dispute. Some of the disputes, but not only, from the labour law that can be referred to mediation:

• Disputes related to employment discrimination on any grounds and mobbing
• Disputes related to wage compensation
• Disputes related to compensation of benefits and other remuneration on the grounds of employees' equal treatment
• disputes related to compensation of material and non-material damage for work injuries, including loss earnings and royalties
• As well as other disputes considered as appropriate for mediation.

Cases suitable for mediation under the Commercial Law

Commercial disputes may be referred mediation procedure as assessed by the court and with the consent of the parties in the dispute. Some of the commercial disputes, but not only, that can be referred to mediation:

• Disputes emerging due to a fair or unfair competition
• Disputes related to non-performance of commercial contracts concluded between natural and legal persons (excluding public contracts)
• Disputes arising from the operation and progress of business organizations. This category includes all disputes caused due to decisions made by their governing bodies, or those arising from partner/shareholder relationships
• Disputes related to compensation of material or non-material damage
• Disputes related to insurance contracts
• Disputes arising from credit contracts (reprogramming, unlawful interest, bank guarantees)
• Disputes related to trade marks
• As well as other commercial disputes considered as appropriate for mediation.

Cases suitable for mediation under the Administrative Law

Cases under administrative law may be referred to mediation procedure as assessed by the court and with the consent of the parties in the dispute. The categories of administrative dispute cases that may be referred to mediation, but not limited to, are as follows:

• Disputes related to execution of an administrative act or deadlines for the performance of individual obligations.
• Disputes related to the statement of the claims filed together with the main statement of claim as accessory claims for returning the objects taken or compensation of damages.
• Disputes related to the amount of damage compensation, waiver of damage compensation, time limits for return of items, waiver of objects return, etc.
• As well as other administrative disputes considered as suitable for mediation.

Cases suitable for mediation under the Criminal Law

In the criminal field, for criminal offences punishable by a fine and/or imprisonment up to 3 years (excluding cases of Domestic Violence), which, prior to the filing of the indictment, according to the prosecutor's assessment, are appropriate to refer to the mediation procedure, whereas after the indictment has been filed, according to the judge's assessment, on the proposal of the prosecutor or on the proposal/conciliation of the injured party and the defendant to resolve their case in mediation procedure, such case is referred to mediation.

The criminal offences set forth in the Criminal Code of the Republic of Kosovo that may be considered more appropriate to refer to mediation are:

• Threat, Article 181, paragraph 1 and 2 of the CCRK
• Harassment, Article 182, paragraph 1
• Assault, Article 184, paragraph 1
• Light bodily injury, Article 185, paragraph 1
• Participation in a brawl, Article 187
• Coercion, Article 192, paragraph 1
• Violation of the right to strike, Article 221
• Misuse of the right to strike, Article 222
• Theft of services, Article 314 /li>
• Misappropriation of another’s property, Article 318
• Taking possession of movable property, Article 319
• Forest theft, Article 349
• Destroying, damaging or removing public installations, Article 357, paragraph 2

How is the Mediation procedured initiated?

The mediation procedure may be initiated by the parties, the court, the prosecution or the competent administrative body according to the legislation in force.

Initiation by the parties is when the parties, on their own initiative and voluntarily, seek to resolve their dispute through mediation, without initiating court proceedings.

Initiation by the court, prosecution or competent body is when the case is found/ filed in one of these institutions, the parties are instructed to try mediation and the relevant institution refers the case to mediation. Even when the mediation procedure is initiated and started, the parties at any time can terminate the mediation procedure, and continue with other procedures.

How is the mediation procedure conducted?

Mediation is carried out with the assistance of a third party, qualified and impartial, selected by the parties themselves, who is a Mediator licensed by the Ministry of Justice. The mediation procedure is considered to have formally started on the date that the parties and the mediator(s) have signed the agreement to commence with the mediation procedure. After the agreement to mediate is signed, the parties and mediator schedule the date and time to hold the mediation sessions. The procedures for mediation are developed and decided by the parties. The mediator is permitted to conduct separate meetings with each of the parties, if he or she considers that it would be in the best interest of continuing with the mediation procedure. He or she is also permitted to propose options to resolve the dispute, but not the final resolution, which must be agreed upon by the parties.

How long does a mediation procedure last?

The mediation procedure is much faster than the court procedure.

While a case may remain unresolved for years in the courts, Mediation can take 90 days or at most 120 days. If an agreement cannot be reached within a single or more sessions, then additional sessions will be held until the end of the 90 or 120 day prescribed period. During the 90 day period, the parties may at anytime choose to terminate the mediation procedures and return back to judicial proceedings.

Who can be a mediator and what is his/her role?

A mediator is a person certified and licensed as a mediator by the Ministry of Justice. Citizens can verify in the Public Registry of Mediators of the Ministry of Justice if a person is a licensed mediator. If it cannot be found in the Public Registry of Mediators, then it is not a licensed mediator. The mediator plays an important role in the communication and negotiation process by orienting the parties towards finding the best solution for them. The mediator facilitates or assists the parties to the conflict to find a solution acceptable to the parties themselves, a solution that expresses free will and not imposed or manipulated by respecting the legislation in force in reaching a mediation agreement. The mediator does not have the power to decide the terms of the agreement or to resolve the conflict according to his/her own judgment.

What is the legal effect of the agreement archieved in mediation?

The agreement achieved between the parties to the disputes referred by the court, after approval from the referring judge, has the power of an enforcement document.

The agreement achieved between the parties to the disputes referred by the prosecution office, after approval from the referring prosecutor, has the power of an enforcement document.

For self-initiated cases, the agreement the parties achieve through mediation by signing the agreement between the parties and the mediator has the same effect as a final court decision, it has the power of an enforcement document.

How much does Mediation cost?

The Administrative Instruction on Mediators fee determines the amount to be compensated by the mediator based on the type of dispute.

How can mediators be selected?

The mediators are selected by the agreement of both parties, if one of the parties disagrees with the mediator selected by the other party than they can select another mediator, from the public mediator's register which is available electronically:

The register of mediators is presented to the parties in any mediation office in the Basic Courts and Prosecution Office.

Why should mediation be chosen for dispute resolution?

Because mediation:

• provides a much faster, less costly and more transparent resolution.
• gives you the chance to decide yourself on the terms of dispute resolution without influence and not by the judge or the lawyer.
• normalizes and improves relations between the parties and creates premises for the future by having and maintaining relationships with the other party;
• is successful in up to 90% of cases;
• avoids the formalities of a trial;
• for disputes that can be mediated, you do not need to address the Court in advance. Thus, avoid waiting in courts and facilitate their work.
• The settlement agreement reached in the mediation procedure constitutes an executive/enforcement title. "Executive title" is a document on the basis of which the execution procedure is initiated; that means that if the settlement agreement is reached, you don’t have to go back to court in order to enforce it.
• the parties may at any time waive the dispute resolution through mediation and follow court proceedings;

History of mediation in Kosovo

In 2008, Law on Mediation was adopted for the first time in the Republic of Kosovo, laying the first foundations for the institutionalization of mediation as a legal process in Kosovo. Mediation was supported by different donors such as: USAID, UNDP, CSSP etc. by providing citizens with easier and faster access to mediation services.

In 2012, mediation began to become operational with the opening of mediation centres in Peja, Gjilan, Gjakova and Ferizaj, continuing withPrishtina, Prizren and Mitrovica

With the aim of self-sustainability of the system of mediation in Kosovo the Kosovo Judicial and Prosecutorial Council in 2017, have appointed clerks responsible to administer cases referred to mediation procedure within the Basic Courts and Prosecution Offices.

The new Law on Mediation, which entered into force in 2018, has brought innovation to the mediation process by containing provisions that provide for mediation clerks, by opening mediation offices in Basic Courts and Prosecution Offices, then provisions referring to mandatory mediation, as well as the enforceability of the agreements reached in the mediation procedure.

Appointment of mediation clerks within Basic Courts and Prosecution Offices has resulted in the self-sustainability of the mediation system despite the existence or non-existence of donors, giving particular focus to the improvement of services, quality of mediation and access to justice. The current position of mediation in Kosovo as a whole has led to an increase in referred cases, as a very efficient and important process in resolving disputes between the citizens of Kosovo. This result so far presents many reasons that mediation works.

The first mediators were licensed in 2011 and there are currently about 180 mediators licensed by the Ministry of Justice throughout Kosovo, of different profiles, willing to provide mediation services in dispute resolution.

National legislation:

LAW NO. 06/L-009 ON MEDIATION

LAW NO. 03/L-006 ON CONTESTED PROCEDURE

CRIMINAL NO. 04/L-123 PROCEDURE CODE

CODE NO. 03/L-193 JUVENILE JUSTICE CODE

LAW NO. 04/L-139 ON ENFORCEMENT PROCEDURE

Sub legal Acts- attached to the document

CODE MOJ-NO.122019 OF CONDUCT OF MEDIATORS IN THE REPUBLIC OF KOSOVO

https://md.rks-gov.net/desk/inc/media/12E9F7E8-BCE3-4959-AB03-5B5B537EC354.pdf

ADMINISTRATIVE INSTRUCTION ON LICENSING MEDIATORS IN THE REPUBLIC OF KOSOVO

https://md.rks-gov.net/desk/inc/media/56D422B1-BDE2-4305-A106-4D24D5535C76.pdf

ADMINISTRATIVE INSTRUCTION ON OVERSIGHT AND PROCEDURE FOR DISCIPLINARY RESPONSIBILITY OF MEDIATORS

https://md.rks-gov.net/desk/inc/media/276E0D7B-0DB0-4DDC-80AA-F942A79FAB2A.pdf

ADMINISTRATIVE INSTRUCTION ON REGISTRY OF MEDIATIORS

https://md.rks-gov.net/desk/inc/media/AFA1E882-4BC9-4D34-BA82-B36BBFF7F1DB.pdf

ADMINISTRATIVE INSTRUCTION ON TRAINING AND CERTIFICATION OF MEDIATORS

https://md.rks-gov.net/desk/inc/media/468FD6E8-D2D3-4CCB-A95E-2A031E12CEE6.pdf

International legislation

https://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008:EN:PDF

Registry

https://md.rks-gov.net/desk/inc/media/0284D2EC-42BD-43DC-AE73-76C1DC8E74DC.pdf

Mediator XX

Data and biography of mediator

(Note: once the sub-legal acts enter into force, it will be worked on the public registry of mediators, which will include pictures and biographies of them, which will be included here).

https://md.rks-gov.net/desk/inc/media/0284D2EC-42BD-43DC-AE73-76C1DC8E74DC.pdf

These institutions provide mediation services:

Mediation offices within the Basic Courts of Kosovo

Basic Court of Prishtina - Contact: ++383 38 200 17 388

Basic Court of Prizren- Contact: +383 29 222 125

Basic Court of Mitrovica- Contact: +383 28 573 776

Basic Court of Peja- Contact: +383 039 434 725

Basic Court of Ferizaj- Contact: +383 0290 321 009

Basic Court of Gjilan- Contact: +383 0280 322 180

Mediation offices within the Basic Prosecution Offices of Kosovo:

Basic Prosecution of Prishtina - Contact: +383 38 200 18 710

Basic Prosecution of Prizren- Contact: +383 029 242 216

Basic Prosecution of Mitrovica- Contact: +383 45 817 964

Basic Prosecution of Peja - Contact: +383 39 422 163

Basic Prosecution of Ferizaj- Contact: +383 0290 326 017

Basic Prosecution of Gjilan - Contact: +383 0280 320 282

Basic Prosecution of Gjakova - Contact: ++383 0390 323 128

Mediation Centre in Mitrovica - Contact: +383------- info@mediation-mitrovica.org

Address: “Nemanjina/Sami Frasheri” No. 52, 40 000 Mitrovica, Kosovo

Chamber of Mediators of Prishtina - Contact:

Statistics

These statistics are presented based on the monthly reports reported by the managers of the Mediation Centres, then by the clerks appointed for mediation. Although mediation has begun to be applied relatively late, statistics show that there is a gradual increase in cases referred to mediation procedure. So far about 11,530 cases have been referred to mediation procedure, and over 9, 320 cases have resulted in settlement of the dispute. What can be observed from these statistics are the results of the agreement with successful resolutions. More reasons to choose mediation as an alternative to resolving disputes.

The Ministry of Justice will regularly publish the data of cases referred to the mediation procedure.

The following table gives a better overview of cases referred to mediation procedure for the periods 2012 - 2018, in Prishtina:

The following table gives a better overview of cases referred to mediation procedure for the periods 2012 - 2018, in Ferizaj:

The following table gives a better overview of cases referred to mediation procedure for the periods 2012 - 2018, in Gjakova:

The following table gives a better overview of cases referred to mediation procedure for the periods 2012 - 2018, in Peja:

The following table gives a better overview of cases referred to mediation procedure for the periods 2012 - 2018, in Gjilan:

The following table gives a better overview of cases referred to mediation procedure for the periods 2013 - 2018, in Mitrovica:

The following table gives a better overview of cases referred to mediation procedure for the periods 2014 - 2018, in Prizren:

Institition links

• Official Gazette
• Ministry of Justice
• Chamber of Mediators of the Republic of Kosovo
• Kosovo Judicial Council
• Basic Courts
• Kosovo Prosecutorial Council
• Basic Prosecutions
• Academy of Justice
• Kosovo Chamber of Commerce
• American Chamber of Commerce in Kosovo