In ‐ court Mediation as a Form of Outsourcing? Srđan Šimac, Ph.D. Judge of the High Commercial Court of the Republic of Croatia Tenth Public and Private Justice Conference Dubrovnik, June, 8 – 11,

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 Litigation and mediation under the same roof? 4

What is the main role od the courts and judges?  The task of the judges is not only to resolve the disputes, but also to assist the parties to resolve them.  Therefore, the courts and judges should add to their present roles new ones. 5

Two track justice system  Examples of co-existence of mediation and litigation in the courts indicates good odds for coexistence of the old and the new roles.  The aim is to take advantage of both systems. 6

 It is a kind of symbiosis in which none of the systems does not underestimate or diminish the importance of the other.  This is an example of coo-evolution – process of mutual adaptation of formal and private justice.  The legal system cannot survive in its monolithic, without addressing the needs of its users and the demands of the modern time. 7

 Mediation in the courts - the process of building a new system of dispute resolution in which all of its parts are equally valuable and complementary.  It represents interpolation of new solutions to the old ones. 8

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Together, they make a new - better and more effective system. 10

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 Blindfolded Goddess of Justice should not be just a "fashion detail„ any more. 15

Modern legal system  Should enable courts to provide more efficient and timely protection of the rights of citizens.  All modern societies should provide citizens with an appropriate mechanism for access to the highest possible degree of justice. 16

With the litigation on new grounds and mediation within courts, the parties have an opportunity to leave the courts with confidence in the institutions that enabled them quick access to justice. 17

Socialization of the law and the courts This is a process of democratization (delegalization) of disputes that puts the courts and judges in the social function for which they were intended. 18

Parties’ participation in own dispute  Help them decide about the maters which are important only to them!  Let them an opportunity to choose.  Help them replace confrontation for cooperation. 19

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 Humans are extremely capable for creation of conflicts.  They are extremely good too, in solving conflicts, but not with the same mode they used when they created them.  Let them and help them choose to activate those inner capacities. 21

Opinions of the parties and attorneys on Judicial Mediation Program at the High Commercial Court of the Republic of Croatia 22

Why did you accept mediation proposal?  Speed  Great delay of judicial proceedings  The possibility of direct communication  Opportunity to find mutual interests  Possibility of repairing broken relations and continue cooperation 23

How did mediation help you?  We have reestablished a broken communication  I have got an opportunity to realize the position of the other side  We were able to see things more realistically  Eeverything is over, finally!  I have solved all my worries and expectations. 24

 It helped me learn how not to repeat the same mistakes.  We have made an agreement and agreed too, to a long-term cooperation.  I realized that only with the agreement we can get the best solution.  All parties are satisfied with the outcome.  I got enough time for debt payment. 25

 Court has encouraged us to take activities towards the solution.  I'm surprised with correct approach of the judge mediator.  Judge mediator helped both sides to meet their own interests.  Judge mediator has created the atmosphere of trust. I realized the quality of the court.  „I restored my confidence in the judiciary that I was totally lost”. 26

Additional comments  Everything is well organized.  communication is great.  Exceptional speed of reaching the solution.  Good result depends a lot of the mediator attitude.  It is excellent that court propose mediation.  Mediation is an excellent tool to prevent delay of the trial.  After six trial years, they convinced us to try to solve the dispute in mediation, and we have quickly solved the problem we couldn’t solve for a years. 27

Why lawyers did advice clients to accept mediation?  Speed and efficiency  Clients will, to resolve the dispute  Less costs for the parties  To reach the end of the dispute  Certainty (risk reduction and control of outcome)  Continuation of the business relationship  Faster and certain collection of the debt  Possibility to reach optimal solution for my client 28

What was mediation the most important benefits?  Quick solution and client’s satisfaction  Possibility to discover the interest of the other side  Reestablishment of the broken communication  Possibility of bringing reality into the dispute  The perception of my party has changed  All disputes between parties are solved  Judge mediator helped us a lot 29

Court mediation as a form of outsourcing?  Recognition of the limits of the present system.  A process of accommodation to a new reality.  An opportunity for efficient use of court’s internal capacities to be better adapted to meet users’ needs. 30

We are not just protectors of rights, but architects of justice and satisfaction of human needs. 31

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Srđan Šimac, Ph.D. High Commercial Court of the Republic of Croatia Hrvatska udruga za mirenje (HUM) Croatian Mediation Association (CMA) 35