Suchergebnisse

The Mediation Act has been applied in the Republic of Serbia since 2005. In the past period, the application of this Act has pointed out to a number of drawbacks and deficiencies in the system of resolving disputes through mediation. The dominant features of the current mediation system are some inadequate legal solutions, poor organization and insufficient preparation of the courts to internalize mediation, failure to provide relevant information about mediation to litigants and other participants in the judicial process, insufficient judicial training and education of lawyers and parties on mediation and other ADR methods, etc. Considering that the primary purpose of mediation is to diminish the litigation caseload and reduce the costs of court proceedings, the basic goal of introducing mediation into the Serbian legal system has not been accomplished. In order to improve the mediation system, the Serbian authorities launched a public debate in 2010 on designing a new legislative act which would eliminate the shortcomings of previous act and improve the efficiency of mediation. After nearly four years, the extensive debate and confrontation of different mediation concepts led to adopting a new Draft Mediation Act in 2013. As compared to the applicable 2005 Mediation Act, the Draft Mediation Act contains some innovations, such as the enforceability of a mediation agreement under specific conditions and the opportunity of introducing mandatory mediation in some cases. In this paper, the author analyzes the above issues on the basis of findings of economic theory and the results of the empirical study on the efficiency of mediation in Serbia in civil matters. In this context, the author argues that the achievement of the above objectives (to reduce the caseload and legal costs] calls for establishing a sustainable mediation system. In addition to instituting good legal solutions (such as mandatory mediation], the system should be supported by joint efforts and financial resources of responsible institutions and individuals. In a nutshell, mediation may come to life only if the legislative efforts are accompanied by a large-scale social action aimed at promoting this form of dispute resolution.

Analysis of efficiency of (judicial) mediation in Serbia and other European countries (Italy, Switzerland, the Netherlands and Denmark) illuminates the causes of poor representation of this legal institution in our country. Analysis of mediation in Italy, culturally most closely resembling country to Serbia, indicates that a legalistic approach to the promotion and implementation of mediation, especially if it is heterogeneous, is not efficient. On the other hand, countries that have implemented a bottom-up approach ('first applied, and then regulate'), such as the Netherlands and Denmark, have developed efficient mediation system. Switzerland, a country that relied on an approach based on the promotion of culture of mediation, has a mediation system that has not been developed to the extent to the developed system of conciliation. In any case, the Italian experience has taught us that the regulation of mediation is not a sure path to success in the implementation of this legal institution; Swiss experience highlights the importance of developing a culture of peaceful settlement of disputes; Dutch and Danish experience emphasizes pragmatism in the promotion and implementation of mediation. Since Serbia lacks an efficient regulatory framework of mediation, culture of peaceful dispute settlement and pragmatism in implementation of this legal institution, it seems that the experiences, for the purpose of analysis, observed countries are more than useful.

The context ot the development of the Croatian society after the decay of the socialist structures is burdened not only by the processes specific for all postsocialist countries such as the loss of the traditional securities or the renaissance of the "desintegrating capitalism" (Beck, 1994, 479), but with the specific post war processes. Since it results with the complex mediation between the individual and collective behaviours the young people of the nineties in Croatia have found themselves in an ambivalent situation. Finding themselves in the gap between the wish for security and the possibilities for development they can hardly develop self-functioning ways of achieving the material, cultural and biographical resources. Sceptical towards their own future they primarily tend to provide for their everyday basic needs and declare themselves as nonpolitical, interested only in themselves, their private sphere and free time. (SOI : PM: S. 193)

The Republic of Serbia represents an employer for civil servants and employees, for employees who perform tasks within the scope of state administration bodies, courts, public prosecutors' offices, for police officers as a separate category of civil servants, etc. The regulation of the labor legal status of these persons is also carried out through the conclusion of special collective agreements in addition to the normative. A significant part of the state administration is made up of public services that, by their significance and manner of carrying out tasks of general interest, as well as by the method of financing, represent the central level of the state that encompasses the entities which are responsible for the provision of predominantly non-market services which the state is obliged to provide in order to meet the general needs of its people. The concept of administration has been established as a profession of general interest. Administration carried out by the state authorities itself is viewed in a narrower sense, and when we look at the administration through public services or public administration, we have to bear in mind that non-state actors are also entrusted with administrative activities. Based on the nature of their work, state authorities have a significant administrative function in regulating tasks and prerequisites which are important for collective negotiations in the public sector. The state administration also carries out registration of social partners, tasks related to determining the representativeness of social partners, registration of collective agreements and decision-making on the extended effect of the collective agreement. Relevant authorities, councils, state administration boards and special organizations perform their activities through tripartite and bipartite social dialogue, and decisions are made by consensus. The state administration performs and ensures the performance of state functions important for collective negotiations in the public sector, conducts a procedure for obtaining the authority of representatives of state bodies and public services to start, negotiate and conclude a collective agreement. Also, the state administration has an active role in the process of registration of the collective agreements, as well as in the obligatory mediation and conciliation and arrangement of the minimum work process in activities of general interest. The state administration maintains the legal order and secures public interest through the procedure of concluding and applying collective agreements in the public sector. Through the realization of these activities, the participation of state entities in the conclusion of collective agreements opens the question of the legal nature of collective agreements, that is, leaves the possibility for the analysis and comparison of the collective agreement and the administrative contract. Collective agreement is a general act, but in its adoption, administrative-legal relationship is recognized as a significant relationship which is regulated by numerous norms of international and national law. Both contracts are concluded with the agreement of the contracting parties, and with the reduced authoritative function of the state administration. A particularly collective association of state bodies and public services can be considered as social acts that regulate rights, obligations and responsibilities from the employment of public sector employees, which contain mandatory and normative parts, but each is an autonomous source of labor law in the public sector.

Der Autor geht von der These Carl Schmitts vom Bürgerkrieg als dem Wesen der liberalen Demokratie aus. Innere und äußere Sicherheit vor einem Kriegszustand blieben immer instabil. Der Krieg auf dem Balkan habe nun gezeigt, daß Europa nicht mehr (wie von 1945 an bis dahin) in der Lage sei, mit dem Einsatz sekundärer Mittel einen Konflikt zu lösen, da es über solche im Rahmen der bisherigen europäischen Integration nicht koordiniert verfüge und zu ihrem Einsatz auch gar nicht bereit sei. Der neue Balkankrieg müsse daher Anstoß zu einer Umorientierung der europäischen politischen Integration sein. Für das Erreichen einer Stabilität gebenden europäischen politischen Größe sei dabei eine "republikanische Korrektur der liberalen Demokratie" (S.99) unabdingbar. (SOI-Clw)