Mediation

in Croatia1

By: Mladen Vukmir, attorney-at-law, mediator2

Croatian mediation system was largely set up by adoption of the third Mediation
Act in 2011 following prior institutional structure development. This endeavour to
set up a mediation system started at the beginning of the millennium with the
training of first batch of mediators under the organizational and financial support
of the USA (USAid) and EU member states, and the first phase was rounded off with
the adoption of the first Mediation Act in October 2003. The first Act was based on
the UNCITRAL Model Law on Mediation and has by far preceded the EU Mediation
Directive. This coincided with founding of the first mediation centre at the
Croatian Chamber of Economy Permanent Arbitration Court.

After the adoption of the first Mediation Act additional mediators were trained
thanks to the efforts by initially trained mediators and with the support of the
Ministry of Justice of the Republic of Croatia and the EU funds. Numerous
Mediation Centres were gradually founded in the aftermath of the persistent
training. During that time, mediation was initiated in practice through pilot
programs, firstly at the Commercial Court of Zagreb, followed by the High
Commercial Court of the Republic of Croatia and thereafter at many Municipal
Courts.

An umbrella Croatian Mediation Association (Hrvatska udruga za mirenje, HUM)

having as members the majority of Croatian mediators was also founded early on,
around 2003. The Association had an important role in forming of the mediation
profession in Croatia. Subsequently, HUM has also acquired the authorization to
perform trainings required for mediators’ certification by the Ministry of Justice of
the Republic of Croatia. The mediation system was thus completely set up and all
the premises for performing the mediator’s profession in Croatia were created. All
1
Some segments of this text were prepared as a write-up accompanying a presentation at the 19th
Croatian Arbitration and Mediation Days in December 2011. Its theses were subsequently elaborated
at the panel “Become an even better mediator” on the occasion of the UIA World Forum of
Mediation Centres held in Zagreb on October 5 and 6, 2012. Information prepared for various other
surveys were incorporated into the present version of the text.

2
Vukmir & Associates, Zagreb, Croatia. Mladen Vukmir is an IMI (International Mediation Institute)
Certified Mediator and certified by the Croatian Ministry of Justice. He is listed by the Center for
Conflict Prevention and Resolution (CPR, NYC, NY, US) and Croatian Chamber of Commerce (HGK)
Permanent Arbitration Court, WIPO and other mediation centers. He currently serves as a Member
of the INTA Board of Directors, and is immediate past INTA ADR Committee Chair. He serves on the
INTA Panel of Neutrals. As the current AIPPI Croatia President, Mladen Vukmir is proposing further
introduction of ADR methods in the intellectual property field. Mladen Vukmir is trained as a
Mediator Trainer and regularly works as Mediator Trainer in Croatian Government Mediator’s
Certification Program. He was recently teaching Negotiations and Dispute Management at the
American College of Management and Technology (ACMT) in Dubrovnik, a Rochester Institute of
Technology (RIT) graduate school.
these systematic endeavours have led to the formation of a network, including
today the majority of mediation institutions.3

Specifically, in 2006, within the strategy of reform for the legal system, the pilot
project “Mediation before the courts” introduced the mediation centre at the
Commercial Court in Zagreb, thus introducing mediation as a dispute resolution
method into the legal system for the first time. Based on that project, the
implementation of mediation has taken place on further eight courts throughout
the country. In 2007 the implementation of mediation proceedings at the High
Commercial Court of Croatia was introduced, making it the first appellate court in
the Republic of Croatia with an established mediation centre. Mediation before the
Court was conducted mostly by mediators who were judges, but the list included
also attorneys, engineers and academics with mediation training.

The role of mediation as a part of the Croatian legal system has become even more
prominent after the implementation of the EU project “Improvement of mediation
as alternative dispute resolution” in 2008, through the joint efforts of Ministry of
justice assisted by some mediation centres. The overall objective of this project
was to provide easier access to justice through the development of alternative
dispute resolution. Its further purpose was development of alternative dispute
resolution services in Croatia and its adaptation according to best practices in the
European Union and the development of alternative dispute resolution before as
well as outside of the courts. Amendments to the Civil Procedure Act have
introduced mediation as a possibility throughout the entire litigation process.

The second Mediation Act was enacted in 2009 and has immediately opened
numerous new questions to which the newly emerging mediation scene scrambled
to answer as quickly as possible. Efforts made to recognize the challenges and
develop the appropriate solutions have brought to an accelerated advancement and
also new revelations at local level on the nature of mediation. This has brought
about a greater experience of local mediators, useful cognitions in mediation
administration proceedings, and development of materials to raise awareness
among potential users.

The third Mediation Act was enacted and is in force from 2011. A few provisions of
the Act, related to cross boarder mediation came into force with the date of
Croatia’s accession to the EU on July 1st 2013. Most recently, a new Family law has
been adopted, coming in force from July 1, 2014. This Law introduced strong
mandatory mediation in family disputes for the first time. Many mediators received
additional, family specific training in the wake of enactment of the new Family
Law.

Although the scope and extent of this report leave no room for a further legislative
analysis or elaboration of the history of mediation development in Croatia, and a
comparison with that of other countries, we are of the view that the foregoing
facts should be kept in mind. In fact, the development of mediation in Croatia is a
story of success, comparable to successes in other countries. The attainments of

3
As listed on HUM webpage (in Croatian): http://www.mirenje.hr/index.php/o-mirenju/mirenje-u-
hrvatskoj/institucije-za-mirenje.html
the mediation system are such that they almost seem unreal if compared with what
seemed likely twenty or even ten years ago. Many were sceptical at the time
towards a successful introduction of mediation, and undervalued the possibility of
mediators’ education and attraction of clients. The results achieved have
completely disproved these fears and today’s achievements seem far larger than
the most daring predictions4. Let us now briefly look at some of the features
characterising the Croatian mediation scene, hoping this can further present its
profile.

One of the formative factors for a mediation scene in any given country would be
the mediation training. Most of the local basic mediation training provides for the
facilitative approach and consequently most of the locally conducted mediations
are facilitative. This is even more pronounced in the cases of commercial
mediation, where the default style is without any doubt facilitative. While most of
the mediators will use facilitative approach, some mediators with more traditional
styles might use more directive style. Some mediators with the background in
judiciary also might use more directive style, and those with the background in
psychology might use some transformative elements.

There are no mandatory mediation courses offered by law universities in Croatia so

far. The mediation in law universities is usually discussed within Family law and
Labour law courses. Within the Civil process law mediation issues are discussed in
relation to the conclusion of extra judicial settlement between the parties. Only
Faculty of law in Zagreb offers an elective ADR course. General amount of hours for
basic mediator certification training is 40 hours minimum basic training, and the
additional advanced training is administered in 20 hours courses.

Sometimes, the directive style might lead a mediator towards evaluative elements.
Apparently, this is not necessarily at odds with the expectation of the local
mediation users. Most frequently, if used at all, the evaluation will be conducted in
an informal manner, in the form of a general advice from a “senior/experience”
vantage point. Legal opinion rendering has not been used often in mediation, but
one can expect its future more frequent usage as the mediation market develops
further.

Regarding the mediation sessions format it could be said that the predominant
mediation process for commercial disputes involves caucusing. While most of the
mediators will use caucusing as a default, some mediators with more sophisticated
styles will use joint sessions predominantly.

The standards for the accreditation of mediation institutions as well as mediators

are set by the Regulations on the register of mediators and standards for the
accreditation of institutions for mediation and mediators5. These also regulate the
content, form and manner in which the register of mediators shall be conducted. It
is prescribed that the register of mediators is organized under Ministry of Justice.
The register is public and everyone has the right to inspect it without proof of legal

4
See a summary of the ADR situation in Croatia: http://www.mprh.hr/alternative-dispute-
resolution-?dm=2
5
The Regulations; Official gazette nr. 59/11
interest. In order for a mediator to be inscribed in the register, it is necessary to
obtain certificate issued by accredited institution on the basis of basic training for
mediators.

According to the applicable rules, accredited institution for mediation are those
authorized by the Croatian Mediation Act or those which obtained approval from
the Ministry of Justice for conducting basic and advanced training for mediators,
conducting training for mediator trainers as well as for conducting mediation in
their mediation centres.

While the mediation institutions in Croatia have been set with a vision and
following a path that the local mediation community set as a plan, it could be said
that market forces played relatively minor role. Business users of mediation also
did not play any important role in setting up the mediation market so it is to be
hoped that the liveliness of the market forces will play a bigger role in the future.
It can be expected that in the future the markets will work in two directions. It is
likely that it will favour the certified mediators, and will favour specific experience
and styles within that group. Of course, it is possible to imagine that some non-
certified mediators will survive the market forces, at least as long as the
certification does not become mandatory.

Generally there are no organizational or competence related boundaries in using

the mediation as a dispute resolution media. Therefore, mediation itself can be
entrusted to some mediation centre or organization or to an ad hoc mediator. It is
provided, however, that some mediation procedures can be delegated only to
certified organizations or persons who are determined by special mediator lists
(i.e. in family matters, divorce proceedings or collective labour disputes).

Lawyers and others with legal education appear to be mediators in most of the
cases. However, besides lawyers, other professionals are trained and often mediate
as well. Sometimes, this option even appears to be preferred by the parties,
especially in cases dealing with very sensitive issues (such as family disputes) or in
cases where the disputes are of specific and complex nature (like disputes
concerning medicine, finance, construction works etc.). Thus, mediators can be
accountants, engineers, architects, social workers, psychologists and experts on
labour relations, doctors, consultants, educators etc. When the parties are
accompanied by their lawyers who supervise the legal aspects of the mediation
settlement, it certainly helps mediators who do not have legal education and can
thus focus predominantly on conducting the mediation process.

Pursuant to the Mediation Act, a mediation organization can be a legal person, an

entity of a legal person or an organizational unit of a legal person that organizes
mediation proceedings. So far, usually they are in a form of associations, or
professional organizations founded by law, such as the Bar Association, Chamber of
Craftsmen etc.

Regarding the fees, we shall present only the most often used elements. According
to the rules of Croatian Mediation Association (HUM), compensation for mediator’s
work is freely determined in a form of agreement between each mediator and the
parties. In the case of no agreement between the parties, the mediator fee can be
determined by the value of the dispute. The compensation for the disputes where
the economic value of the dispute cannot be determined amounts to HRK 1.000,00
(corresponding to approx. EUR 130,00), unless otherwise agreed by the parties.
Different mediation providers allow for a different fee structures. Croatian
Chamber of Economy keeps the fees fixed in a low amount, the Bar Association
Mediation Centre allows for the free contractual arrangements. In accordance with
Decision on arbitration and mediation proceedings, mediator fee is fixed in some
cases by public regulation to an amount of HRK 1.200,00 (approx. EUR 160,00).

Average mediator fees per hour for commercial cases/cross border matter are
sometimes calculated with respect to the value of the dispute. However, according
to the Decision on costs of mediation proceedings of Croatian Mediation Association
(HUM), higher costs are set where mediation is performed in the cases of a complex
dispute. This is the case, for example, when a mediator is engaged in a dispute
that requires specialized knowledge, if mediation is performed in a foreign
language, and when the value of the dispute exceeds the sum of HRK 4.000.000,00.
In such cases the fee for the mediator’s work shall be increased by 30%, and initial
administrative costs by 100%. To avoid misuses, the Secretary of the Association
shall decide on the need for specialized knowledge, on the degree of complexity of
the dispute as well as on the need to conduct the mediation in a foreign language6.

Normally, a mediated settlement can qualify as a binding contract, in accordance

with the Croatian Civil Code. If the parties have undertaken some obligations by
the settlement, they are bound to fulfil them in a timely manner. However, an
important feature is the legal mechanism that secures that the settlement
agreement in mediation proceedings is a self-executing enforceable title if the
prescribed conditions are met. The article 13 of the Croatian Mediation Act
prescribes that a settlement agreement concluded in the course of mediation
proceedings shall be an enforcement title if it contains a clause setting the
obligation to perform an act over which the parties may reach a settlement and if
it contains the obligor’s statement on immediate authorisation of enforcement (an
enforcement clause). In this case the obligor explicitly agrees that on the basis of
the settlement agreement, in order to carry out the performance of the due
obligation, immediate enforcement may be ordered. Therefore, the enforceable
title is not completely automatic, because the enforcement clause has to be
incorporated into the agreement. The required formalities are not set by law and
are now debated between the mediation system stakeholders, namely the judges
and the mediators. The parties need to agree on the inclusion of the enforcement
clause, and can even notarize the settlement agreement, although this is not
expressly required for its enforceability.

All this has raised quite a few dilemma in practice and the experts are pointing out
to some doctrinaire inconsistencies on the side of the law of execution, so it is very
likely that this system will be revisited at the next round of legislative changes.

Regarding the confidentiality, the regime is set so to fulfil the traditional internal
and external mediation confidentiality requirements. According to the article 14 of
the Croatian Mediation Act, unless otherwise agreed by the parties, the mediator

6
See (in Croatian): http://www.mirenje.hr/index.php/centar-za-mirenje/trokovnik.html
shall keep all information and data received in the course of the mediation
proceedings confidential in relation to third persons, except where the law requires
disclosure, or where it is necessary for the implementation or enforcement of the
settlement agreement. Furthermore, the mediator shall be liable for the damage
caused by his or her violation of this obligation. The above provisions are applied
accordingly to the parties and other persons who have participated in mediation
proceedings in any capacity. The provisions of the article 10.2 of the Croatian
Mediation Act regulate the confidentiality in relation to the meetings of the parties
and the mediator. This article prescribes that, unless the parties have agreed
otherwise, the mediator may communicate information or data received by one
party to the other party only with the other party’s consent.

The Act also introduces an exemption from obligation to give evidence in court
proceedings or arbitration. The article 15 of the Croatian Mediation Act regulates
the question of admissibility of evidence in judicial, arbitral or any other
proceedings. It prescribes that it is not permitted to make statements, propose
evidence or submit any other proof in whatever form regarding any of the
following: a) the fact that a party had proposed or accepted mediation; b) the
parties’ statements of facts or proposals made during mediation proceedings; c)
admission of claims or facts made in the course of mediation proceedings if such
admissions and observations are not a constituent part of the settlement; d)
documents prepared solely for the purpose of mediation proceedings, unless it is
stipulated by law that their communication is necessary for the implementation or
enforcement of the settlement agreement; e) the parties’ willingness to accept the
proposals made during mediation proceedings; f) other proposals made during
mediation proceedings. Such evidence shall be rejected as inadmissible, however
according to the principle of autonomy of the parties, they can agree otherwise.

Although the space constraints do not allow us to further present and analyse the
features of the Croatian mediation system it is hoped that the above might serve as
an introduction in Croatia’s dynamic and evolving mediation scene. Although the
overall number of mediations in any given year remains relatively low, estimated in
several hundreds, it is to be hoped that the predicted growth of market based
initiatives will raise mediation profile and its frequency.

In case of any inquiries please address yourself at vukmir@vukmir.net.