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...The nation now plans to use mediation to improve judicial efficiency, and promote democracy and the rule of law. This article reviews the nation's new mediation laws and their potential impact on the judiciary and society generally. Drawing on his mediation experiences in private practice and his work managing rule of law projects in Bosnia and Herzegovina, the author concludes that the new mediation laws are an excellent start but need to be amended. The author further concludes that if given sufficient time and proper implementation, mediation can improve judicial efficiency and democracy in Bosnia and Herzegovina.
INTRODUCTION
This article discusses the new Bosnia and Herzegovina (BiH) mediation laws and their potential impact on the Bill judiciary and the rule of law. Section One provides brief historical introduction to this multifaceted country. Section Two discusses Bill's complicated governmental structures that include thirteen constitutions and a heavily decentralized power structure. Section Three reviews the judicial landscape and current issues. While much has already been written about the war in Bill and its implications, little has been written about the more mundane judicial issues that now affect its citizens. Section Four discusses how mediation can improve the Bill justice system. While mediation is usually prescribed for judicial inefficiency it may also help promote democracy by helping to build a culture of compromise. Section Five reviews the new laws that regulate mediation in Bill courts and concludes that despite some needed amendments, the laws should help promote out-of-court settlements. Section Six sets forth recommendations that include changes to the current laws and important implementation parameters. The article concludes that mediation has the potential to make a significant contribution to judicial efficiency and democracy in Bosnia and Herzegovina.
I. HISTORICAL CONTEXT
Bill has a variegated ethnic and religious composition that is made up of three main groups--Serbs, Croats, and Bosniaks. Although the groups share many cultural traits, such as language, cuisine, music, etc., they are divided along religious lines. (2) The Serbs are largely Orthodox Christians, the Croats Catholics, and the Bosniaks Muslims. (3) When Yugoslavia started to dissolve in the early 1990s, people tended to turn to their ethnic groups for protection. Bosnia and Herzegovina was one of the six autonomous republics that made up Yugoslavia. (4) In 1992, following two other republics' declarations of independence, the Yugoslav Republic of Bosnia and Herzegovina declared independence and the unfortunate consequence was war.
In 1995, the United States sponsored high-level, mediated peace talks that brought about a cease-fire and ultimately, a peace agreement. The mediation process involved representatives from Serbia, Croatia, and Bill traveling to a U.S. Air Force Base in Dayton, Ohio to negotiate an end to the war and a post-war solution. (5) Assistant Secretary of State Richard Holbrooke mediated. (6) For three weeks, the parties remained on the base while the United States attempted to broker a settlement. (7) Through this mediation process, the parties agreed to establish a new state with a unique constitutional structure. The agreements, signed in December 1995 and known as the Dayton Accords, established present-day Bosnia and Herzegovina. (8)
The mediation was successful thanks to a number of exogenous factors, including the international application of military force, the explicit threat of future use, and the significant reversal of Serb military victories on the ground in the fall of 1995. (9) However, the parties themselves all compromised at Dayton. The Bosnian Serbs and Croats gave up their respective goals of union with Serbia and Croatia, or, alternatively, independence. The Bosnian Muslims gave up their goal of a unified, sovereign state, in favor of a confederal state, with minimum central authority and highly autonomous, ethnically-dominated regions. (10) While many lament the difficulties that the Dayton Accords present to BiH's future, the war-time leaders' mediation-induced compromises made this peace possible. Perhaps in Bill, mediation will eventually be associated with the imperfect, but peaceful resolution of conflict.
II. THE GOVERNMENTS OF BOSNIA AND HERZEGOVINA
Under the Dayton Accords, Bill is essentially divided into two "Entities", the Republica Srpska (RS) and the Federation of Bosnia and Herzegovina (Federation). (11) The RS is the predominantly ethnic Serbian half of the country that occupies the north, east, and south-east portions of Bill in the shape of a reverse crescent. The Federation, established in 1994, before Dayton, comprises mainly ethnic Bosniaks and Croats, and occupies the central and western parts of the country. In addition, there is the autonomous Brcko District, a small area of land in and around the city of Brcko, in the northeast corner of the country. (12)
The Dayton Accords established the general governmental structure of the new BiH state. In Annex 4 to the Accords, the parties agreed to a federal constitution. (13) The Accords have worked in the sense that ten years on, the parties have kept the peace and have slowly begun to build a BiH state. On the other hand, the Constitution and some of the other Dayton annexes have created an impossibly complicated and cumbersome governmental structure. One scholar has written: "[t]his new Bosnian constitution makes the American Articles of Confederation of two centuries ago look like a centralized, unitary form of government." (14) Indeed, BiH now has thirteen constitutions--one for the BiH State, as provided in Annex 4, one for each Entity and ten cantonal constitutions within the Federation. (15) The State Constitution (16) devolves most governmental authority to the Entities. While the current political trend is for greater centralization in governmental power, as long as the Dayton Accords remain the supreme law of the land, this de-centralized structure will remain. (17)
The complex governmental structure was necessary to guarantee local autonomy for the three main ethnic groups. When the Federation was created in 1994, as part of the peace agreement between ethnic Bosniaks and Croats, it divided the areas under their control into autonomous cantons, along ethnic lines. (18) Each Canton had its own executive, legislative, and judicial bodies. (19) This was necessary given the high level of mistrust between the parties. (20) This cantonal framework was then incorporated into the Dayton Accords regime after the 1995 peace agreement was signed. (21) Mistrust between the RS and Federation negotiators led to a similarly decentralized State-level constitution for the two entities. (22)
Moreover, the Accords also provide for a UN-sanctioned institution, known as the Office of the High Representative (OHR), to serve as a sort of super-government to manage the implementation of the civilian aspects of the Dayton Accords. (23) OHR has final authority to interpret the Dayton Accords. (24) It has evolved into a large, internationally-run institution that coordinates international assistance efforts, re-organizes governmental structures, imposes new laws, amends pre-existing laws, and even terminates BiH government employees who are deemed obstructive. (25) These conditions have allowed for a massive output of new laws and changes in the judiciary. However, what has been gained in efficiency has been lost in local contribution and acceptance. Many laws are passed without a great deal of local participation or input. The result is decent laws on paper, but poor implementation and observance.
III. THE COURTS OF BOSNIA AND HERZEGOVINA
The BiH judiciary is heavily influenced by both the Austro-Hungarian Empire's (26) and communist Yugoslavia's legal traditions. (27) However, its complicated and decentralized structure is a creature of the Dayton Accords. Each Entity has its own judicial court system. At the first level, the municipal courts in the Federation and the basic courts in the RS hear most first instance civil and criminal cases. (28) At the intermediate level, the cantonal courts in the Federation and the district courts in the RS hear the appeals. (29) The Federation and RS Supreme Courts hear appeals from the cantonal and district courts and serve as the highest courts of appeals for cases involving Entity law. (30) Each Entity also has a Constitutional Court. (31) The Brcko District has its own parallel court system.
At the State (i.e. national) level, the BiH State Court was first established in 2000. (32) In addition to its administrative and appellate jurisdiction, the court has criminal jurisdiction to decide issues relating to economic corruption and war crimes, as well as certain matters brought under the limited state laws. (33) BiH also has a state Constitutional Court that has exclusive jurisdiction to hear constitutional disputes between the Entities, between the state and an Entity, and between state institutions. (34) The Court can also hear appeals from any other court when there are issues relating to the BiH Constitution. (35) Finally, it is empowered to review any law's compatibility with the BiH Constitution and the European Convention on Human Rights and Fundamental Freedoms. (36)
The BiH judiciary faces myriad problems. Education and training of judges is substandard. (37) Court contempt, subpoena, and enforcement powers are underutilized or insufficient. (38) Outside of Sarajevo and Brcko, funding levels are "woefully inadequate." (39) Courtrooms and other facilities are "dilapidated and in need of repair." (40) Many of the courts carry substantial debts. (41) But, perhaps the two most significant issues are inefficiency and corruption.
The BiH court system simply moves too slowly. (42) A recent World Bank study (43) indicates that it takes almost two hundred days, on average, to enforce a judgment and only about twelve percent of local firms characterize the courts as "quick." (44) These scores were lower than for many neighboring transition countries like Macedonia. (45) One commentator noted that the courts are generally distrusted by business leaders. (46) One reason for court inefficiency is that judges have to work within an environment where substantive and procedural laws are constantly changing. (47) Because they cannot access new legislation easily and there is no effective system for identifying and organizing changes, (48) judges are understandably overwhelmed. Another reason for the inefficiency is that courts have no effective case filing and tracking systems. (49) And finally, the system allows for excessive postponements of hearings. (50) As a result of these inefficiencies, the BiH High Judicial and Prosecutorial Council (HJPC) recently reported that significant case backlogs have accumulated in many courts. (51)
Another serious issue is corruption, or at least the perception thereof. The ABA/CEELI Judicial Reform Index survey found that "[i]mproper influences on judicial decisions are a significant problem, and they include bribes, requests for specific outcomes by friends and colleagues of judges, ex parte communications, and political pressure, most of which is exerted indirectly." (52) In addition, while ethics codes are in place, they are not "widely understood or followed." (53) In the World Bank's surveys of fairness and honesty, the BiH courts ranked in the bottom half of the region, with only around a quarter of respondents assessing the courts as either fair or honest. (54) The most compelling finding was that in 2002 BiH ranked number one in all of Europe and Eurasia for the frequency of unofficial payments and gifts made when dealing with courts. (55) This was in spite of the fact that BiH had tripled the wages of judges. (56) Transparency International found that BiH citizens rank the judiciary as the fourth most corrupt institution in the country (ahead of, inter alia, the customs, medical, and education systems) (57) and an alarming fifty-four percent think most or almost all of the judges are involved in corruption. (58)
The consequences of a dysfunctional court system cannot be overstated. Individuals and businesses cannot effectively enforce their contractual rights and as a result, economic activity suffers. One study commissioned by the European Bank for Reconstruction and Development (EBRD) found that legal institutions' effectiveness in enforcing laws is more important for foreign investment in transition economies than is the establishment of modern, pro-business laws on the books. (59) In BiH, the perception and reality of weak enforcement of property and other rights has hurt economic development. (60) The World Bank survey ranked the BiH judiciary second in the Europe and Eurasia region for being an impediment to doing business. (61)
In addition, a dysfunctional court system can also prevent individuals from enforcing human rights they have been granted in their laws. (62) The BiH Constitution is unique in that it explicitly incorporates the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) and declares that these rights "have priority over all other law." (63) In theory, this means that the highly developed case law of the European Court of Human Rights (ECHR) is the supreme law of the land. (64) However, the enforcement of these rights in BiH is questionable. For instance, Article 6 of the European Convention guarantees the right of all persons to a "fair and public hearing within a reasonable time..." (65) It is likely that the slow administration of justice in BiH is violating citizens' human rights under this provision.
IV. MEDIATION AS A PRESCRIPTION
Mediation may be useful in addressing some of these problems. (66) Like other forms of ADR, mediation is an alternative method of resolving disputes, outside of the traditional, adversarial, litigation-centered model. (67) Mediation has been defined as a "process in which an impartial intervener assists two or more negotiating parties to identify matters of concern and then develop mutually acceptable proposals to deal with the concerns." (68) The neutral or mediator does not have binding authority to decide any issues. She can only help the parties resolve the matter if they are willing. (69) Mediation can be part of an official court system (called "court-annexed mediation") or it can be a stand alone procedure, completely independent of the courts. (70) In either case, it is usually a voluntary procedure for all parties.
Mediation has been found to provide parties with a wide range of advantages over traditional litigation, including faster resolution and reduced costs. (71) Developing country studies show that mediation can resolve cases much faster than traditional litigation. Mediation Boards in Sri Lanka, for example, resolved sixty-one percent of cases within thirty days and ninety-four percent of cases within ninety days, compared with the months or years it took to resolve cases in the courts. (72) After six years of this mediation program, the Sri Lanka court backlog was reduced by fifty percent. (73) Similarly, in BiH, mediation could help free up scarce judicial resources by reducing the number of hearings, trials, and eventually the number of cases. The HJPC cited the lack of mediation options as one reason for the significant case backlog. (74)
Another issue that might be mitigated by mediation in BiH is excessive dispute resolution costs. In BiH, lawsuits are expensive relative to local wages. (75) Mediation has shown to be less costly than litigation. (76) And, mediation may help reduce high legal fees by reducing the number of court appearances and eliminating the need for costly trials.
Mediation would also provide BiH parties the opportunity to develop more creative and appropriate solutions to disputes, instead of relying on general statutes, limited or non-existent case law, and potentially inconsistent decision-makers. (77) The practical application of this benefit for the remaining war-related property and other...
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