Slovenia

What can governments do for development of mediation
Ales Zalar, Minister of Justice of Slovenia

I. Introduction

Nowadays, mediation plays an important role in alternative dispute resolution in many countries, all over the world. It has been determined as one of the particularly important topics within the EU and the Council of Europe. Countries have different approaches to the development of mediation. However, it can be generally established, that governments can play an extremely important role in that development. The impact of the authorities' attitude towards mediation can clearly be seen on the example of Slovenia.

II. Mediation and Slovenian courts

In the year 2001, the District Court of Ljubljana, where I was the president of the court at that time, introduced a court-annexed mediation programme. Mediation was first offered in classical civil disputes. Since 2002, this court also offers mediation in family disputes and since the beginning of 2003 in commercial disputes. The programme was first an experimental one. It was introduced as a programme of solving court backlogs. Later, it became a regular court programme.

Several other Slovenian courts have recently followed this model. Today, four district courts, one county court, one court of appeal and three labour courts offer mediation programs.

At the same time, out-of-court mediation started to develop. The White Book on Mediation, prepared by the Slovenian Association of Mediators in 2008, presents the development of mediation in a variety of fields.

II. Legal basis for mediation

The Civil Procedure Act (CPA) includes several provisions on the possibility of court settlement. However, there are no specific provisions on mediation in the CPA.

Till 2008, there was no law on mediation. In May 2008, the Mediation in Civil and Commercial Matters Act was adopted. The purpose of this act is to promote the use of mediation and not to regulate the procedure. The act has transposed the Directive on certain aspects of mediation in civil and commercial matters into Slovenian law. The act only contains provisions on basic principles of mediation procedures; the rest is left to self-regulative mechanisms.

III. The District Court of Ljubljana and the Court-annexed Mediation Programme

The District Court of Ljubljana is the largest among the eleven district courts in Slovenia. Mediation is most successful in family cases, where settlement is reached in 66% of cases referred to mediation. In commercial matters, the half of cases referred ends with a settlement, and in civil matters, the settlement is reached in 33% of cases referred (statistics for the year 2008). The statistics shows that the number of cases, in which both parties agree with mediation, is constantly growing. In most cases, settlement is reached in the first or in the second mediation session.

In the year 2005, the mediation programme of the District Court of Ljubljana has been reviewed and evaluated by experts from the Netherlands, who worked within the Phare project. In the same year, this court took part in the competition for the Crystal Scales of Justice, organized by the Council of Europe and the European Commission. Twenty two projects were nominated and seven projects were honoured. The Slovenian project was one of the finalists and was recognized as an example of good practise.

IV. What is Slovenian government doing in order to promote the use of mediation?

In the past, there was no law which would impose the introduction of mediation programmes on courts. The introduction of these programmes has depended on presidents of courts and their attitude to mediation. The authorities have not been involved in the development of court-annexed mediation. This development was neither supported, nor hindered from the side of the authorities. In present, however, the development and promotion of ADR is one of the priorities of the Slovenian Ministry of Justice.

In March 2009, the Consultative Council has been established. Its task is to give advice on the policy of development and promotion of ADR to the minister of justice. The Council consists of 16 experts.

Based on the experience of the District Court of Ljubljana and several other Slovenian courts, the Ministry has prepared new law on ADR, which determines the obligation of all first instance courts and courts of appeal to offer at least one type of ADR to parties in civil, commercial, family and labour disputes.

The basic characteristics of the new act are as follows:

1) All first instance courts and courts of appeal will have to offer mediation to parties in civil, family, commercial and labour disputes. The first instance courts will have 6 months to introduce programmes and the courts of appeal will have 30 months to prepare such programmes. The first instance courts can rely on the experience of the District court of Ljubljana, which offers mediation since almost 9 years. The first court of appeal, however, has introduced such programme only in September 2009.

2) Courts will have the possibility to offer other types of ADR to parties.

3) Courts will decide on the form of programmes: they will either introduce court-annexed programmes or choose court-connected programmes, organized by external providers

4) There will be some incentives and also some sanctions in order to enhance the use of mediation. For example, courts will have the right to demand from parties that they take part in the information session on mediation. The information session is explicitly mentioned in the Directive on certain aspects of mediation in civil and commercial matters. In Slovenia, such sessions have not been held in the past. Courts will now have the legal basis to demand from parties that they participate in such sessions. Mediation will be free of charge for parties in family and certain labour disputes. In other disputes, except the commercial ones, the first 3 hours of mediation will be free of charge for parties. Parties who will unreasonably decline the use of mediation might bear costs of the civil procedure, irrespective of the outcome of the procedure.

5) Referral to mediation: cases will be referred to mediation on the basis of the parties' proposal
or on the basis of the court's decision after the information session has been held; parties will have the right to oppose to such decision and in that case the decision will be automatically annulled.

6) The Republic of Slovenia as a party in a dispute will in principle be obliged to agree with mediation.

7) Parties who receive free legal aid are already now obliged to participate in mediation in good faith, in case the other party agrees with mediation.

The new act on ADR in courts, which has been adopted on November 19th, will bring great changes in the field of ADR in Slovenia.

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