22-04-2013

Alternative Dispute Resolution - Mediation In Albania

Authors

  • Rasim Gjoka, Sociologist - Mediator,
    Albanian Foundation for Conflict Resolution & Reconciliation of Disputes

Introduction

The mediation institution is known in the Albanian society for its positive values and its advantages compared to other alternatives of conflict and dispute resolution. The application of alternative resolution in Albania has been a challenge and a bottom-up process, initiated by civil society actors. The process of introducing and applying ADR in Albania was started in the year 2000, supported in two main pillars: the advanced experience of west countries and in the Albanian tradition of mediation and reconciliation. The changes in the legal framework for mediation and dispute resolution in Albania, particularly the approval of the law no. 10385, dated 24.02.2011 “On Mediation in Dispute Resolution”, have positively influenced in the improvement of the business climate. The enforcement of this law in the implementation of the pilot program of ADR/Court connected mediation model in family and commercial disputes in two district courts in Albania (Durres and Korca) has demonstrated the possibilities that the law creates for increased access to alternative dispute resolution approaches in cases referred by the court and other state agencies, or in cases referred directly by the parties of by business centers.

What forms of Alternative Disputes Resolution are regulated by Albania legislation?

The Albanian legislation, namely the law “On Mediation in Dispute Resolution” regulates the alternative dispute resolution through mediation. Elements of legal provisions for mediation as an alternative dispute resolution approach are also found in the Civil Procedural Code, the Family Code and the Labor Code. A process of standardizing and harmonizing the mediation law with the legislation in force is under process in Albania.

When and how does a conciliation attempt take place?

In accordance with the relevant legislation, the parties can be involved in a reconciliation and mediation process since the initial phase of court proceedings. Mediation can also be used at any phase of court proceedings. The judge is obliged to invite the parties to try mediation, and if the parties accept, he suspends the case until the mediation procedure is completed. If mediation is not successful, a report on the outcome is submitted to the court and court proceedings are followed. The mediation and reconciliation process is conducted by independent mediators and mediation centers. The Civil Procedure Code, in the first part, under Title I “General Principles of the Legal Process”, article 25 on “Reconciliation of parties” provides that “it is a task of the court to make efforts to reconcile the parties in a dispute”.

What kind of disputes are addressed through the juridical/court-connect settlement model and how is it conducted?

The model applied in Albania is the court-connected mediation and it is applied in disputes between individuals and private entities. The procedure of out-of-court mediation is initiated at the moment when the judge invites the parties to try mediation in accordance with the Civil Procedure Code (Article 4, 25, 158/a and 297). This procedure is available since the moment when the parties appear in the preparatory session, as well as in every phase of the court proceedings. The mediation procedure is an independent activity and should be conducted in a conformable environment/office, which could be inside the court or out of the court. According to the Albanian legislation, the judge cannot provide the mediation service him/herself or refer it to a colleague. The obligation of the judge, as provided for in the mediation law, Article 2/4, is to invite the parties to mediation and refer to the case to a licensed mediator by the Ministry of Justice or to a mediation center.

What if the Juridical/court-connect mediation does not succeed? Does it affect the process?

In case the dispute referred to mediation by the court is not settled through the mediation alternative, the mediator follows the procedure defined in the mediation law on the institutional relations between the court and the mediator/mediation center. The mediator/mediation center submits a report/reference letter to the judge on the outcome of the mediation process. According to the legislation, the judge has the discretion to decide on the time limits for the mediation process to be conducted. Court proceedings are followed afterwards and the mediation process does not affect the process.

What is the legal framework of Mediation in Albania?

  • Law No. 10385, dated 24.02.2011 “On Mediation in Dispute Resolution”.

The new law “On mediation in Dispute Resolution” approved in February 2011 constitutes the main reference for delivering the mediation services. It describes the main provisions to be followed by the mediator as well as provides the basis for the entire mediation process starting with case referral, the mediation procedure, the appointment of the mediator and the reporting to the court/other referring institution on the outcome of the mediated case. As far as the court-connected procedure is concerned, article 2/4 of the mediation law defines: 2/4. When initiating the process of settling a dispute from the civil, commercial, labor or family law, the court or the relevant state agency, within the competencies laid down by the law, obligatorily invites the parties to settle the case through mediation, particularly in the following disputes, but not limited to:

a) civil and family cases, where the interests of the minors are in question;

b) cases of reconciliation in the instances of marriage dissolving, foreseen in article 134 of the Family Code;

c) property disputes, subject to a lawsuit up to 500 thousand leke, as well as lawsuits seeking object restitution, denying lawsuit, and litigations seeking cease of violation of possessions.

The mediation center is more focused on the resolution of family and commercial cases. The law makes clear reference as regards the scope of mediation in these cases, respectively, article 2/2 defines: Mediation shall be used in all disputes in the area of civil, commercial, labor, and family law.

  • Civil Procedure Code, Articles 4, 25, 158/a, 158/b, dhe 297.

The mediation law makes reference to these articles, when setting out the mediation procedure in civil cases: Article 13 of the mediation law provides that:

1. The court, in compliance with articles 4, 25, 158/a, 158/b and 297 of the Civil Procedure Code, invites the parties to settle the case, which is subject to adjudication, provided for in article 2/2 of this law, and when the parties agree to mediation, it suspends the adjudication, and, considering the type of the dispute, it sets out a deadline.2. Each of the parties is entitled to the right to request at any time the continuation of adjudication. The Civil Procedure Code, in the first part, under Title I “General Principles of the Legal Process”, article 25 on “Reconciliation of parties” provides that “it is a task of the court to make efforts to reconcile the parties in a dispute”.

What is the definition of Mediation?

The Albanian law “On Mediation in Dispute Resolution” defines mediation as an out-of­court activity, through which the parties seek to settle a dispute with the assistance of a third neutral person (the mediator) in order to come to an acceptable solution for the parties, and which does not contradict the law. Mediation in dispute resolution through reconciliation is an independent activity, which is exercised in compliance with this law, under the auspices of the Ministry of Justice (Article 1).

What is the definition of Mediator’s role?

According to the mediation law a mediator is a third, neutral party, who assists to the parties in finding an acceptable solution of the dispute. The mediator, in proving the service, shall ensure the efficient resolution of the dispute, fairness and impartiality, and acts professionally, holding no bias towards the parties or the matter that is subject to mediation (Article 3/2).

Who is qualified to be mediator under the provisions of Albania law? Where can you find your mediator?

The mediation law does not provide any limits of the background of mediators, namely that mediator can be an economist, jurist, economist, psychologist, social worker, teacher. However, he/she has to simultaneously meet some criteria, such as hold a university degree; be over 25 years old and have clear criminal record. Most importantly, the mediators, prior to being licensed by the Commission for Mediators Accreditation established at the Ministry of Justice, should have completed a training program in mediation. The list of licensed mediators is published on the web page of the Albanian Ministry of Justice. It is also displayed in the courts, other state institutions and in the mediation offices.

What types of disputes may be submitted to Mediation according to Law 10385/2011?

With reference to Civil Procedure Code, the law “On Mediation in Dispute Resolution” provides for use of mediation in the following types of disputes:

- civil cases, where the commercial ones constitute the greater number,

-property disputes, subject to a lawsuit up to ALL 500 thousand, as well as lawsuits seeking object restitution, denying lawsuit, and litigations seeking cease of violation of possessions. There are some deficiencies in the Albanian mediation law in approximating it with the EU 2008/52/EC concerning the treatment of the cross border disputes.

How does Recourse to Mediation take place?

The mediation process is initiated by the parties, who, on their free will, decide to use mediation as resolution alternative for their dispute. The mediation process may be initiated also in cases of business contracts or agreements between parties, when they have provided for mediation as resolution approach to any dispute that may rise. In cases when the disputes are referred by the courts, the process is initiated by the judge in accordance with the legal framework. In the preparatory session for the trial, the judge invites the parties to try mediation in their case.

How is Mediation procedure structured?

The mediation law describes the structure of the mediation process, from the referral to mediation; appointment of the mediator, the conduct of the mediation process respecting the basic principles of the process, holding separate meetings and joint meetings with the parties, respecting the principle of confidentiality and avoiding the conflict of interest; concluding the mediation process with the achievement of the settlement agreement or the report on the outcome in unsuccessful cases.

How is Mediation procedure initiated?

The mediation procedure commences upon the invitation for mediation made in terms of the mediation law at least by one of the parties in conflict to the other party, or on the date of referral of the case to mediation by the court or other state institution. The parties and the mediator jointly sign the agreement for the mediation process implementation. This agreement is made in writing. The parties can withdraw at any time from the mediation procedure and commence the court proceedings.

How will confidentiality be ensured? What are the exceptions?

Confidentiality is one of the principles to be followed in the resolution of conflicts through mediation, paying attention to keep confidential the communication between the parties in the mediation process and other information that may be revealed in a mediation process. According to the law, conducting mediation in a confidential way means that only the parties are entitle to access in the documentation and information. Moreover, it is only the parties who may decide whether the information may be revealed to third parties.

Notwithstanding the principle of confidentiality, information or content of the settlement agreement are made public in the cases when:

a) it is necessary to do so because fundamental interests of the state and/or public interests are violated;

b) it is necessary to prevent, or stop maltreatment, physical or psychological violence towards anyone, particularly towards children or persons with disabilities.

c) it is necessary to prevent, or stop maltreatment, physical or psychic violence towards persons with disabilities.

d) when making the data and/or the mediation agreement public ensures the enforcement of this agreement.”

Should the parties participate along with their lawyers at a Mediation session?

The Albanian legislation does not make any explicit reference concerning the participation of legal representatives in the mediation process. In other words, the law does not prohibit them to participate as supporter of the parties or even as their representative. Considering the up-to-date experience, there have been rare cases when the parties have requested that their lawyer be present in the mediation process.

What is the definition of cross-border disputes?

There is not any article in the Albanian legislation providing explicitly for mediation in cross border disputes.

Is mediation mandatory prior to Court’s hearing?

According to the mediation law, the judge is obliged to invite the parties to address their case to mediation, but not force them to accept mediation against their will. Following this procedure, the judge of the civil and commercial sections informs the parties on the values and benefits of the out-of-court mediation alternative and if the parties accept, he/ she refers the case to mediation.

What is the impact of having recourse to mediation on juridical proceedings?

The referral of commercial cases from the judges to mediation is accompanied with the temporary suspension of the juridical proceedings. In his/her decision of referring the case to mediation, the judge sets also the time limits for the mediation procedure. In cases referred by the court, the mediator shall submit the respective documentation to the judge in accordance with the law. The judge reviews the documentation, and when all the legal criteria have been met, he decides on the case, making the mediation agreement signed by the parties a court decision. In case the dispute is not settled through the mediation, the judge continues the court proceedings.

Issues in enforcing the Mediation Settlement Agreement. Is it enforceable in court?

When cases are referred by the court and the mediation process is successful, the mediator prepares the settlement agreement. It contains information about the parties and contact information, the object of the dispute, the parties’ obligations and the manner of fulfilling them, deadlines, etc. The settlement agreement and other relevant documents, if available, are submitted to the judge who makes it a court decision, thus making the agreement enforceable at the same level as a court decision. The mediation law provides that if the agreement is in compliance with the provisions set out in article 22 of the law, it makes an executive title, and in such case the Bailiff’s office is responsible for its execution (article 23).

What is the cost of Mediation?

According to the mediation law, the National Chamber of Mediators decides on the tariffs for the mediation service provided, both for the work of mediators and the expenses incurred as result of the mediation activity (Article 7/d). The establishment of the National Chamber of Mediators is under process, and it is expected that in the first half of 2013 the Chamber will decide on the mediation fees considering the market indicators.

What are the advantages of initiating Mediation in Albania?

The experience gained in the recent years, particularly in applying court-connected mediation in commercial disputes, has demonstrated numerous advantages, thus influencing in improvement of the business climate. The time saving, i.e, resolving the dispute in much shorter time and much lower costs compared to judicial proceedings, and also normalized relationships between the parties are main advantages of mediation.

GREEK LAW DIGEST REPUBLIC OF ALBANIA MINISTRY OF INTEGRATION Union of Chambers of Commerce and Industry of Albania
Nomiki Bibliothiki ALBANIA INVESTMENT DEVELOPMENT AGENCY Foreign Investors Association of Albania
     

 

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