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Chicago International Dispute Resolution Association
Note from the Field
Mediation in Bosnia and Herzegovina: A Second Application
Steven Austermiller1
A nation born out of mediation turns to mediation again, this time
to rescue its judiciary and promote the rule of law. The country known
as Bosnia and Herzegovina was created out of U.S. mediation efforts in
1995. Ten years later, the peace has held but a new set of challenges
has emerged. The nation now plans to use mediation to improve judicial
efficiency, and promote democracy and the rule of law. This article reviews
the nation’s new mediation laws and their potential impact on the
judiciary and society generally. Drawing on his mediation experiences
in private practice and his work managing rule of law projects in Bosnia
and Herzegovina, the author concludes that the new mediation laws are
an excellent start but need to be amended. The author further concludes
that if given sufficient time and proper implementation, mediation can
improve judicial efficiency and democracy in Bosnia and Herzegovina.
INTRODUCTION
This article discusses the new Bosnia and Herzegovina (BiH) mediation laws and their potential impact on the BiH judiciary and the rule of law. Section One provides a brief historical introduction to this multifaceted country. Section Two discusses BiH’s complicated governmental structures that include thirteen constitutions and a heavily decentralized power structure. Section Three reviews the judicial landscape and current issues. While much has already been written about the war in BiH and its implications, little has been written about the more mundane judicial issues that now affect its citizens. Section Four discusses how mediation can improve the BiH justice system. While mediation is usually prescribed for judicial inefficiency it may also help promote democracy by helping to build a culture of compromise. Section Five reviews the new laws that regulate mediation in BiH courts and concludes that despite some needed amendments, the laws should help promote out-of-court settlements. Section Six sets forth recommendations that include changes to the current laws and important implementation parameters. The article concludes that mediation has the potential to make a significant contribution to judicial efficiency and democracy in Bosnia and Herzegovina.
I. HISTORICAL CONTEXT
BiH has a variegated ethnic and religious composition that is made up of three main groups—Serbs, Croats, and Bosniaks. Although the groups share many cultural traits, such as language, cuisine, music, etc., they are divided along religious lines.2 The Serbs are largely Orthodox Christians, the Croats Catholics, and the Bosniaks Muslims.3 When Yugoslavia started to dissolve in the early 1990s, people tended to turn to their ethnic groups for protection. Bosnia and Herzegovina was one of the six autonomous republics that made up Yugoslavia.4 In 1992, following two other republics’ declarations of independence, the Yugoslav Republic of Bosnia and Herzegovina declared independence and the unfortunate consequence was war.
1 Until February 2006, Steven
Austermiller was the Country Director for the American Bar Association/Central
European and Eurasian Law Initiative (ABA/CEELI) in Bosnia and Herzegovina.
There, he managed programs relating to, inter alia, mediation, legal education,
bar reform, judicial training, and anti-corruption policy. He has also
worked on ABA/CEELI projects in other countries. He currently manages
an ABA project in Cambodia. Prior to his field work, he was a partner
at Pedersen & Houpt, a Chicago law firm. He is a graduate of Northwestern
University (B.A., Political Science) and Northwestern University School
of Law (J.D.). The views expressed in this article are his own and are
not necessarily those of ABA/CEELI, the United States Agency for International
Development (USAID), or any other organization. The author wishes to thank
Nebojsa Milanovic, Sanin Muftic, Oliver Babson, Nora Staal, and, most
importantly, Amy Antoniades Austermiller for their kind and essential
assistance. back
2. Historical inter-ethnic strife also serves
to reinforce ethnic divisions. Katherine G. Southwick, Note, Srebrenica
as Genocide? The Krstic Decision and the Language of the Unspeakable,
8 YALE HUM. RTS. & DEV. L.J. 188, 192 (2005). back
3. The last census was in 1991, prior to the war. Bosniaks
accounted for 43.5% of the BiH population, Serbs 31.2%, and Croats 17.4%.
High Judicial and Prosecutorial Council of BiH, Godišnji Izvještaj
Visokog Sudskogi Tužilackog Vijeca Bosne i Hercegovine za 2004. Godinu
[Annual Report of the High Judicial and Prosecutorial Council of BiH for
2004], ch. 2 (May 4, 2005) [hereinafter HJPC], available at http://www.hjpc.ba/intro/gizvjestaj/pdf/AnnualReport2004.pdf.
However, there was substantial intermarriage among these groups before
the war and many people did not fit neatly into any ethnic category. back
4. The six Yugoslav republics were: Bosnia and Herzegovina,
Slovenia, Croatia, Serbia, Montenegro, and Macedonia. back
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Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),