Mediation is an alternative procedure (method) of dispute resolution, an extrajudicial activity regulated by law, which is carried out voluntarily by the parties. In the mediation procedure, there is no judge to decide on the case, but the decision is taken by the parties themselves, where the parties to the dispute choose one or more impartial persons (the mediators) to help the parties reach a mutually satisfactory solution to the dispute theirs, much faster, easier and cheaper than in court proceedings.

1. Mandatory Mediation
2. Civil Cases
3. Criminal cases

The provisions of the Law on Mediation are applied in the mediation procedure in the contentious relations of subjects of law in legal-property, commercial, family, labor relations, other cases of property rights disputes, such as rights related to profit. of property rights through contractual relations or acquired through inheritance, bankruptcy procedures, other civil, administrative and criminal relations, in which the parties can freely dispose of their free will, in case it is not foreseen by a special law the exclusive responsibility of the court, the prosecution or another competent body.

Mediation and the mediation procedure do not apply to cases related to domestic violence, in accordance with the Law against Domestic Violence or to any dispute for which the exclusive responsibility of the court or any other competent body is foreseen. Mediation in the criminal field is applied in cases where a fine and a prison sentence of up to three (3) years are foreseen.

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

Mandatory mediation is a type of court-only referral process and only applies to certain types of family law and property law cases. In such cases, if the judge, in his or her discretion, believes that the dispute can be resolved through mediation, he/she will direct the parties to hold an initial meeting with the mediator and discuss whether the parties will try mediation of the dispute. The parties are free to refuse 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 referred the case to mediation before proceeding with court proceedings.

The types of disputes for which mandatory mediation must be applied are:

• disputes from family relationships related to alimony cases, –
• guardianship,
• contact and custody of the child,
• division of joint marital property,
• property disputes related to rights and obligations from servitude rights,
• compensation of expropriated property.

Cases suitable for mediation by Civil Law

The application of mediation in civil cases is one of the most suitable cases to mediate. In such cases, which are not limited, the parties have the opportunity to go directly to mediation offices or mediators to resolve their dispute without having to go to court. However, even if the cases were found 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.

Contentious relations in civil relations can be, but are not limited to:

Disputes regarding the gain and loss of the right of ownership in movable and immovable objects

• Disputes related to the non-respect of the right of pre-emption
• Disputes related to co-ownership
• Disputes related to joint ownership
• Disputes regarding Possession and co-possession
• Disputes related to obstruction of possession
• Disputes related to the mutual legal relations of the owners of the building units
• Disputes related to neighboring law, such as: Duty of care, Confusion of the boundary, Marking and installations of the boundary, Tree on the boundary, Immissions, Fruits, Branches and roots, Necessary entry for taking animals, Necessary passage, Right of right-of-way for buildings, Temporary use of a neighboring property, Demolition of a building, Construction across the boundary line, Hazardous mining, Water flow.
• Disputes related to the protection of ownership, such as: Claim of the owner for the return of the item from the possessor without the right of possession, Claim of the owner against the possessor in good faith, Claims of the possessor in good faith from the owner, Claims of the owner against the possessor in bad faith, Claims of the possessor in bad faith by the owner, Request for the removal and non-repetition of the violation of ownership and any violation of the possession or use of the right of ownership over an item
• Disputes related to servitudes
• Disputes related to real burden
• Disputes related to the right of construction
• Disputes related to non-fulfillment or partial fulfillment of contracts
• Disputes related to the compensation of material and non-material damage
• Disputes regarding remuneration in the form of cash interest
• Disputes from the right of residence
• Disputes regarding the administration of the child’s property by one parent, who is entrusted with the child’s upbringing and education
• Disputes regarding the personal and property consequences between spouses after the dissolution of marriage as well as other disputes that are considered suitable for mediation.

Subjects suitable for mediation by Labor Law

• Disputes from the labor relationship can be referred to the mediation procedure according to the court’s assessment and the agreement of the parties to the dispute. Some of the matters from the employment relationship that can be referred, but not limited, for resolution through mediation are:
• Disputes related to discrimination at work on any basis and mobbing
• Disputes related to salary compensation
• Disputes related to the compensation of benefits and other rewards at work on the basis of equal treatment of employees
• Disputes regarding the compensation of pecuniary and non-pecuniary damage for injuries at work, including lost earnings and rent
• as well as other disputes that are considered suitable for mediation.

Subjects suitable for mediation in Commercial Law

Commercial disputes may be referred to the mediation procedure at the discretion of the court and with the agreement of the parties to the dispute. Some of the commercial disputes that may be referred, but not limited to, for resolution through mediation are:

• Disputes caused by fair or unfair competition
• Disputes related to the non-fulfillment of commercial contracts concluded between natural and legal persons (with the exception of public contracts)
• Disputes arising from the operation and well-being of commercial companies. This category includes all disputes created due to decision-making in their governing bodies, or those arising due to the relations of partners/shareholders
• Disputes regarding the compensation of material and non-material damage
• Disputes related to insurance contracts
• Disputes arising from credit contracts (rescheduling, illegal interest, bank guarantees)
• Trademark Disputes
• as well as other commercial law disputes that qualify as suitable for mediation.

Subjects suitable for mediation by Administrative Law

Issues from administrative law can be referred to the mediation procedure at the discretion of the court and with the agreement of the parties. The category of administrative cases/conflicts that can be referred, but not limited, for resolution through mediation are:

• Cases related to the execution of the administrative act or deadlines for the performance of individual obligations.
• Issues related to claims that are submitted together with the main claim as accessory claims for the return of items received or compensation for damage.
• Disputes regarding the amount of compensation for damage, waiver of compensation for damage, deadlines for returning items, waiver of return of items, etc.
  as well as other administrative cases that are considered suitable for mediation.

Cases suitable for mediation by Criminal Law

In the criminal field, for criminal offenses punishable by a fine or/and imprisonment of up to 3 years (excluding cases of Domestic Violence), which, before the indictment is filed, according to the prosecutor’s assessment, are suitable to be referred to the mediation procedure, while after the indictment is filed according to the judge’s assessment, with the proposal of the prosecutor or with the proposal/agreement of the injured party and the defendant to resolve their case in the mediation procedure, such case is referred to mediation. The criminal offenses provided for in the Criminal Code of the Republic of Kosovo that can be considered more appropriate to be referred to mediation are:

• Threats, article 181 par.1 and 2 of the KPRK
• Harassment, article 182 par.1
• Assault, article 184 par.1
• Minor bodily injury, article 185 par.1
• Participation in beatings, Article 187
• Coercion, article 192 par.1
• Violation of the right to strike, Article 221
• Abuse of the right to strike, Article 222
• Theft of services, Article 314
• Misappropriation of foreign property, Article 318
• Taking possession of movable property, Article 319
• Theft of the forest, Article 349
• Destruction, damage or removal of public installations, article 357 par. 2
• Failure to avoid risk, Article 362
• Danger of public traffic, article 370 par.1
• Non-participation in general risk avoidance, Article 405
• Removal or damage of official seals or signs, Article 406
• Taking or destroying official seals or official documents, Article 407
• Self-judgment, article 410 par.1
• as well as other criminal offenses that are considered suitable for mediation.

The mediation procedure can 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, request that their dispute/disagreement be resolved through mediation, without initiating court proceedings.

The initiation by the court, prosecution or competent body is when the case is found/presented 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 has begun, either party may withdraw from the mediation at any time.

A mediator is a person who is 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, whether a person is a licensed mediator. If it cannot be found in the public Register of Brokers, then it is not a licensed broker. The mediator has an important role in the process of communication and negotiation, guiding the parties towards finding the best solution for them. The mediator facilitates or helps the parties involved in the conflict to find a solution acceptable to the parties themselves, a solution that expresses their free will and is not imposed or manipulated while respecting the legislation in force in reaching the mediation agreement. The mediator does not have the power to decide the terms of the agreement or the resolution of the conflict according to his assessment.

The agreement reached between the parties in disputes referred by the court, after approval by the referring judge, has the power of an enforceable document. The agreement reached between the parties in the disputes referred by the prosecution, after approval by the referring prosecutor, has the power of an executive document. For specific cases, the agreement that the parties reach through mediation with the signing of the agreement by the parties and the mediator has the same effect as a final court decision, has the power of an executive document.

The Administrative Instruction on mediators’ fees determines the amount that must be compensated to the mediator based on the type of dispute.

Mediators can be selected with the agreement of both parties, if one of the parties does not agree with the mediator chosen by the other party, they can choose another mediator, from the Public Register of Mediators which is in electronic form: The register of mediators is presented to the parties in every mediation office in the courts and the basic prosecutor’s office.

Because mediation:

• offers you a much faster, less expensive, and more transparent solution.
• gives you the opportunity to decide on the terms of dispute resolution yourself without influence and not by the judge and the lawyer.
• normalizes and improves relations between the parties and creates premises for the continuation of the future by having and maintaining relations with the other party;
• is successful up to 90% of the time;
• avoids the formalities of a trial;
• for disputes that can be mediated, you do not need to go to Court in advance. Thus, avoid waiting in the courts and facilitate the work of the Courts.
• the agreement reached in the mediation procedure constitutes an executive title. “Executive title” is a document based on which the execution procedure is started; this means that if the agreement is reached, you do not need to go to court to enforce it.
• the parties may at any time waive the resolution of the dispute through mediation and pursue court proceedings;

DOCUMENT

Register of Intermediaries of the Republic of Kosovo

Mediation offices within the Basic Courts of Kosovo:

• Prishtina Basic Court – Contact: +383 38 200 17 388
• Prizren Basic Court – Contact: +383 29 222 125
• Mitrovica Basic Court – Contact: +383 28 573 776
• Peja Basic Court – Contact: +383 039 434 725
• Ferizaj Basic Court – Contact: +383 0290 321 009
• Gjilan Basic Court – Contact: +383 0280 322 180
• Gjakovë Basic Court – Contact: +383 0390 325 423

Mediation offices within the Basic Prosecutor’s Office of Kosovo:

• Prishtina Basic Prosecutor’s Office – Contact: +383 38 200 18 710
• Prizren Basic Prosecutor’s Office – Contact: +383 029 242 216
• Mitrovica Basic Prosecutor’s Office – Contact: +383 45 817 964
• Peja Basic Prosecutor’s Office – Contact: +383 39 422 163
• Ferizaj Basic Prosecutor’s Office – Contact: +383 0290 326 017
• Gjilan Basic Prosecutor’s Office – Contact: +383 0280 320 282
• Gjakovë Basic Prosecutor’s Office – Contact: +383 0390 323 128

Mediation Center in Mitrovica –

Contact: info@mediation-mitrovica.org; Address: “Nemanjina/Sami Frasheri” No 52, 40 000 Mitrovica, Kosovo

Prishtina Chamber of Mediators –

These statistics are presented based on the monthly reports reported by the managers of the Mediation centers, then by the Referents assigned for mediation. Even though mediation has started to be applied relatively late, statistics show that there is a gradual increase in the cases referred to the mediation procedure. So far, about 11,530 (not including 2016, in three regions) cases have been referred to the mediation procedure, and about 9,320 cases have resulted in the settlement of the dispute. What can be observed from these statistics are the results of successful settlement agreements. All the more reason to settle on mediation as an alternative to dispute resolution.

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

The following table gives you a better overview of the cases referred in the mediation procedure for the periods 2012 – 2019, in Pristina:

In awareness activities, the Ministry of Justice, supported by the Commercial Justice program, has undertaken a series of promotional activities.

The Guide to Cases of Appropriate Courts for Mediation is launched

On March 5, 2020, the Basic Courts of Kosovo, in cooperation with the Judicial Council, organized the ceremony for the launch of the Guide to Cases of Courts Suitable for Mediation.

This ceremony brought together key figures from government institutions, and experts in the field and was followed by keynote speeches from representatives of the Courts, the Judicial Council, the Ministry of Justice, and the Agency for International Development USAID.

The drafting of this guide was supported by USAID’s Commercial Justice program, which supports and assists the country’s institutions in reducing the number of unresolved cases in the courts through the use of alternative dispute resolution methods.

The guide, which has been newly approved by the Judicial Council of Kosovo, aims to provide general guidance to the Courts of the Republic of Kosovo regarding the innovations introduced by Law no. 06/-009 on Mediation and serves as guidance for judges and other court staff for easier identification of disputes suitable to be resolved in the Mediation procedure.

The launch of the guide marks an important result toward raising awareness of mediation as an efficient tool to resolve disputes out of court.

To learn more about the Guide please download the following link: Download the Guide

Consultancy tables with Businesses related to Mediation

The program supported the organization of three (3) consultation tables with businesses in order to promote and discuss the possibilities for the inclusion of the ZAK (arbitration and mediation) clause in contracts: In all meetings, the main emphasis was the need and importance of raising awareness for arbitration, mediation and proceedings between businesses.

1. On October 30, 2019, a round table was organized with the Association of Information and Communication Technology of Kosovo (STIKK) and their members,
2. On November 15, 2019, a round table was organized with businesses owned by women from different sectors. This table was organized in cooperation with the Economic Chamber of Kosovo, the American Chamber and the Business Alliance of Kosovo to promote the inclusion of ADR clauses in contracts,
3. The third round table was organized on January 28, 2020, in cooperation with the Insurance Association of Kosovo and the Central Bank of Kosovo, in order to discuss the benefits of arbitration and mediation, opportunities and challenges for the insurance sector.

Mediation Awareness Training Series (MATS)

To design and run the Mediation Awareness Training Series (MATS), the program engaged external Mediation Experts to design and develop a MATS program. MATS is offered to local mediation professionals. Experts trained a core group of mediation professionals to deliver mediation awareness workshops. After this training, mediation professionals held awareness trainings, observed by external experts, for target groups such as: judges, businesses, lawyers, university students, NGOs.

Seven MATS information and awareness workshops were held with different participant groups:

1. The workshop held on November 11, 2019, for judges was organized in cooperation with the KJC. The panel was composed of the trained mediator, the Vice President of the KJC and the two experts engaged by the Program. Participants in the training included ten judges, one professional associate and one KJA representative. 12 participants (2 women, 10 men) took part in the workshop.
2. The workshop held on November 12, 2019, for businesses was organized in cooperation with associations and chambers of various sectors. 14 representatives of businesses from different sectors participated (7 women, 7 men).
3. The workshop held on November 13, 2019, for lawyers was organized in cooperation with the KCA. 17 lawyers and 2 NGOs, which monitor the court and publish reports to promote mediation and the use of mediation, participated (12 women; 7 men).
4. The student workshop was held on November 13, 2019, organized in collaboration with UBT College, mainly for law students. The training was delivered by trained facilitators. 22 students (16 women, 6 men) participated.
5. On February 6, 2020, a MATS workshop was organized for judges and lawyers from the Prizren region in cooperation with the Kosovo Law Academy and the Kosovo Bar Association. In the training, a total of 21 participants (3 women, 18 men): 8 judges (2 women, 6 men), 2 professional associates (2 men), 10 lawyers (1 woman, 9 men), and a representative of the Law Academy of Kosovo.
6. On February 7, 2020, a MATS workshop was organized for businesses from the Ferizaj region in cooperation with associations and chambers of various sectors. 5 representatives of businesses from different sectors participated (2 women; 3 men).
   On February 10, 2020, a MATS workshop was held for NGOs from the Mitrovica region from various sectors. During the workshop, various topics were raised, mainly the use of mediation in specific areas and the need to increase the referral of cases to mediation, the need to have more awareness activities for the general public. 6 participants were present, of which 3 were Serbs and 3 were Albanians (2 females; 4 males).
7. Overall, 10 mediation professionals (4 female; 6 male) were trained to conduct mediation awareness training to various audiences, and 99 participants (44 female; 55 male) were trained in the benefits of mediation through awareness training alone. MATS mediation, throughout the year.

Training with the Academy of Law

The Kosovo Law Academy (KJA), supported by the Commercial Law program, has developed mediation training for judges. In total, 6 trainings were developed and organized in all regions such as Prishtina, Gjilan, Ferizaj, Mitrovica, Gjakova, Prizren and Peja. The program assisted KJA and provided technical expertise for trainers to prepare a Mediation Training Module (civil and commercial cases). The training enabled the judges to become more informed about the new provisions of the new mediation law, which aims to increase the referral of mediation cases in civil and commercial matters.

In 2008, for the first time in the Republic of Kosovo, the Law on Mediation was approved, laying the first foundations for the institutionalization of mediation as a legal process in Kosovo. Mediation has been supported by various donors such as USAID, UNDP, CSSP, etc. enabling citizens easier and faster access to mediation services.

Initially, in 2012, mediation began to be functionalized with the opening of mediation centers in Pejë, Gjilan, Gjakovë and Ferizaj, continuing with their opening in Prishtina, Prizren and Mitrovica.

In order to ensure the sustainability of the mediation system in Kosovo, the Judicial and Prosecution Council in 2017 appointed officials responsible for the administration of cases referred to the mediation procedure within the courts and basic prosecutions.

Meanwhile, the new Law on Mediation, which entered into force in 2018, has brought innovation to the mediation process by containing provisions that foresee referents for mediation, opening mediation offices in the Courts and Basic Prosecutor’s Offices, then provisions that refer to mandatory mediation, as well as the enforceability of agreements reached in the mediation procedure.

The appointment of officials for mediation within the courts and basic prosecutions has resulted in the self-sustainability of the mediation system despite the existence or not of donors, giving special focus to the improvement of services, the quality of mediation and access to justice. The current position of mediation in Kosovo as a whole has influenced the rise of referred cases, as a very efficient and important process in resolving disputes between citizens of Kosovo. This result achieved so far represents more reasons for mediation to work.

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

Do you know that in Kosovo, the number of disputes that are resolved through mediation has increased significantly? This is the result of joint efforts between the USAID Commercial Justice program and the Justice Institutions. The data shows awareness raising about Mediation as well as efficient solutions for users. To access information about the increase in trust, the number of clauses included in business contracts, efficiency, the increase in the number of cases in mediation, and many others, click on the infographic below:

Mediation offers businesses the opportunity to bypass overburdened courts and resolve their disputes more efficiently.

• Official Gazette
• Ministry of Justice
• Chamber of Mediators of the Republic of Kosovo
• The Judicial Council of Kosovo
• Basic Courts
• Prosecution Council of Kosovo
• Basic Prosecutions
• Academy of Law
• Chamber of Commerce of Kosovo
• American Chamber of Kosovo