About mediation

Mediation is a negotiation process, conducted with the assistance of a third neutral person ( the mediator), who  facilitates  the parties of a dispute in reaching an agreement by which the dispute is resolved, their mutual rights and obligations are redefined and conditions for future rights and cooperation are established. Mediation may be applied as an option: prior to court proceedings; instead of court proceedings; or as a complementary procedure to court proceedings. If  no agreement is reached within the mediation process, the parties may return to court proceedings.

Types of disputes

Mediation is possible in all disputes except those falling within the exclusive jurisdiction of a court or another authority.

The court shall by a separate decision, refer the parties to an initial meeting with the mediator:

-if one of the parties is the State of Montenegro, the Capital city, the Old Royal Capital or a municipality;

-in commercial disputes, except disputes involving an international element, disputes arising from relations governed by status(company) law, and disputes in which a party in bankruptcy proceedings has been referred to civil litigation;

-and in other cases prescribed by a special law, particularly in family disputes.

A party intending to initiate court proceedings shall, prior to initiating such proceedings, address  the Centre for the purpose of attempting to resolve the dispute through mediation, and both parties shall be obliged to attend the initial meeting with the mediator in the following disputes:

-disputes classified as small value claims disputes under the law governing civil proceedings;

-disputes concerning damages arising from insurance contracts where one of the parties is an insurance company;

-disputes for which such obligation is prescribed by a special law.

Participants

The participants in mediation are the parties to the dispute, and their attorneys may also participate in the procedure.

The decision to enter into mediation proceedings is based on the free will of the paries to the dispute, as well as on the mutual selection of the mediator.

When mediation can be used?

Mediation, as a procedure of  alternative dispute resolution, may be used  prior to the initiation of court proceedings by directly adressing the Centre for Alternative Dispute Resolution As well as at any stage of court proceedings.

Mediation Agreement

The parties may agree by contract to attempt to resolve a specific dispute, or all disputes arising from a partilcular legal relationship (contractual clause), through mediation prior to initiating court proceedings.

If the dipute referred to in paragraph 1 of this Article is not resolved through mediation, a party may file a claim before the competent court.

Why choose mediation?

Mediation:

-enables a clearer understanding of the situation;

-faciliates reaching a solution equally acceptable to both parties;

-maintains and establishes comunication and trust between the parties to the dispute;

-protects personal and property interests;

-saves time and financial resources.

Who are mediators?

A mediator is a person licensed in accordance with this Law, who conducts the mediation procedure and assists the parties in reaching a settlement, without the authority to impose a binding decision to them. Mediators may include laywyers, social workers, psychologists, pedagogues, and professors who have recieved additional training in dispute mediation.

Appointment of a mediator

If the parties have not appointed a mediator in the mediation agreement, the mediator shall be apponted by the Centre in accordance with the order set out in the Register of Mediators. If the mediation procedure requires specific expertise and experience, the Centre may appoint a mediator outside the regular order of appointment set out in the Register of Mediators. Specific expertise and experience shall be assessed on the basis of completed training programmes and the number of resolved mediation cases in areas related to the subject matter of the dispute for which the mediation procedure has been initiated.

Remuneration of Mediators:

The amount of remuneration for the work of mediators and reimbursement of mediator`s expenses in mediation proceedings is determined by the Regulation on Remunereation and Reimbursement of Mediator`s Expenses.

Time limit for reaching a settlement:

The mediation agreement shall determine the time limit for the conclusion of mediation proceedings. The mediation procedure aimed at reaching an agreement between spuses regarding parental responsibilities and rights following divorce, as well as the division of martial property, must be conducted within 60 days from the mediation procedure.

Completition of mediation:

In mediation proceedings to which the parties have been reffered by the court, a settlement concluded before mediator shall be submitted by the Centre for Alternative Dispute Resolution to the court for confirmation. If the dispute concerns a matter in which court proceedings have not been initiated, or a dispute in which court proceedings have been terminated by withdrawal of the claim, the settlement shall acquire the status of an enforceable document upon confirmation by the competent court, or by being drawn up in the form of a notarial record in accordance with the law governing notarial activities.

What happens if no settlement is reached:

The dispute shall be resolved in court proceedings, and information disclosed during the mediation procedure may not be used in court proceedings or for any other purpose, as such information shall remain confidental.

Mediation in family disputes

Mediation as an alternative method of dispute resolution, is particularly important in family disputes, including:

-divorce;

-exercise of parental rights;

-maintaing personal relations between children and parents, as well as other relatives of the child;

-maintance and support obligations;

-division of joint property.

Mediator guides the spouses to jointly consider all conseqences of divorce and assists them in regulating their personal and property relations with a greater degree of understanding and responsibility. The mediator also encourages the spouses to consider and agree upon the manner in which they will care for their children after divorce, particularly regarding parental rights and responsibilities towards the children. All of the above contributes to preventing hostile separation between the spouses and creates the possibility for parental cooperation that places the child`s  best interests at the forefront.

Mediation is particularly recommended in resolving family conflicts because:

-family disputes/conflicts affect all family members, especially the most vulnerable ones;

-legal issues are closely intertwind with strong emotions

– family disputes/conflicts involve persons who will continue to maintain  mutual relations in the future;

-unresolved and long lasting family disputes may negatively affect children because family ties are enduring;

-mediation enables the amicable resolution of family disputes, regulation of mutual rights and obligations, and future cooperation, without determining which party is right;

– mediation provides a good basis for the future life of divorced parents, primarly for the healthy growth and development of their child, while preserving their personal and property inerests and family relationships.

Mediation in commercial disputes

Mediation in commercial disputes represents support in dialogue and negotiations concering disagreements, conflicts, or disputes, with the assistance of a trusted third person, the mediator, with the aim of reaching a settlement. Mediation provides the parties with an opportunity to sit down together, restore communication, understanding and trust, and replace confrontation with cooperation. Mediation is not an alternative to litigation but rather an alternative to unsuccessful negotiations, and it does not provide solutions or legal advice.

In commercial disputes, parties are often willing to enter mediation only after becoming exhausted by litigation and realizing that court proceedings cannot meet their expectations. Nevertheless, mediation may be initiated at any stage, regardless of whether litigation or arbitration proceedings have already been commenced.

Mediation is particularly recomended in resolving conflicts arising from commercial disputes because:

-in mediation, no one makes decisions on behalf of the parties, as the parties remain in control of their dispute. They have full control over both the procedure and its outcome(settlement).

-mediation allows the parties to express everything that is important to them, while unproductive confrontation is replaced with cooperation.

-mediation primarly focuses on determining what the parties truly want and need, rather than what they may obtain on the basis of legal rights.

-mediation outcomes are based primarly on business interests rather than strictly legal principles.

-in mediation, the parties reach their own solution and therefore comply with it voluntarly.

-there is a strong possibility that the dispute will be resolved within a single day, even at the first meeting.

-due to the efficiancy  of mediation, the parties achieve significant savings in time and costs, while the costs of the procedure are considerably lower, one-time, and shared between the parties.

-through mediation, business entities avoid the risks of litigation and protect their business reputation.

-mediation requires a completely different form of communication from the one that led to the dispute or the one typically used in litigation proceedings.