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November 11, 2016

Kosovar Judges Prepare to Pilot Court-Annexed Mediation in Overburdened Court

Resolution of civil and criminal claims in Kosovar courts can take many years to resolve, impairing the rights of parties to a fair trial within a reasonable time frame, tarnishing public perception of and diminishing trust in the judiciary and imposing costs on the Kosovar economy. Despite significant judicial reform efforts, existing alternative dispute resolution (ADR) options are rarely used to help alleviate the burden on the courts and increase parties’ access to justice.

The International Justice Sector Education and Training  program brings leading justice sector actors from other countries to the U.S. for several weeks of customized academic and practical study, and pairs them with U.S.-based mentors to design a project to effect long-term change in their institutions upon their return home. 

To help tackle this, Judge Makifete Saliuka of the Kosovo Court of Appeals in Pristina and Judge Milena Djeric of the Pristina Basic Court are working to set in motion their plans to pilot a court-annexed civil mediation program in the Pristina Basic Court, Kosovo’s largest court (also the court with the most sizeable backlog). The pilot program would remove barriers to ADR by allowing parties to litigation to participate in mediation without having to travel to a mediation center, and will give parties an opportunity to reach a faster resolution for their case without causing further delay in litigation if mediation is unsuccessful. Their hope is that parties — seeing these benefits will increasingly choose to try mediation. The judges’ goal is to see alternative proceedings used to resolve 20 percent of cases over the next two to three years, an ambitious increase from the current 1 percent.

Judges Saliuka and Djeric comprised the American Bar Association Rule of Law Initiative‘s (ABA ROLI) first class of International Justice Sector Education and Training (IJET) fellows. The IJET program brings leading justice sector actors from other countries to the U.S. for several weeks of customized academic and practical study, and pairs them with U.S.-based mentors to design a project to effect long-term change in their institutions upon their return home. The program is supported by the U.S. Department of State, Bureau of International Narcotics and Law Enforcement Affairs, Office of Criminal Justice Assistance and Partnership (INL/CAP), which worked with ABA ROLI to select the fellows from a competitive pool of candidates supported by their home institutions and nominated by the U.S. embassies in their home countries. Judges Saliuka and Djeric were selected based on their proposed project plan and their potential as agents of change, as evidenced by their impressive experience and unique backgrounds in the Kosovar judicial system, including Judge Saliuka’s membership in the Kosovo Judicial Council and Judge Djeric’s prior experience as a trained mediator.

Judges Saliuka and Djeric developed their pilot program plan during and after their five-week fellowship visit this spring, traveling extensively to meet with experienced ADR and other relevant legal professionals in the Washington, D.C. area, Minnesota and California. The judges had fruitful exchanges with a diverse group of professionals, including at various federal and state courts, community mediation centers in Virginia and Maryland, Stanford Law School, University of California Hastings College of the Law, the San Francisco Public Defender’s Office, law firms and private sector actors engaged in ADR practices and other governmental and civil society organizations. The judges were pleasantly surprised at how the overwhelming majority of cases in the U.S. are resolved through alternative means, and how visible and accessible mediators were in the courts they visited. They learned from their U.S. counterparts that parties are more likely to express satisfaction with the case outcome when they participated in its resolution, even if they did not get everything that they asked for, and that ADR thus increases litigants’ confidence in the justice system. They also observed that parties in mediation sometimes called their mediator “judge”, signaling to them that the parties afforded the mediators a very high degree of respect and trust. They aspire to achieve similar levels of trust in mediators through their pilot program.

The judges also spent time refining their plans in Minnesota with their mentor, Judge Cara Lee Neville (Ret.), who served over 29 years as a judge for the Minnesota District Court and now leads her mediation and arbitration practice at Benchmark National ADR, LLC. After carefully considering several other compelling alternatives, including plea bargaining, arbitration and judicial settlement conferences, the judges determined that court-annexed mediation would be the most effective solution to pilot to address the immense volume of pending cases in the Pristina Basic Court. Judge Neville has already made a reciprocal visit to Pristina with an INL/CAP representative to further assist with the change project, and Judges Saliuka and Djeric are currently planning a meeting in late October for the task force that will guide the pilot project. ABA ROLI is also planning a second reciprocal visit with a U.S. court administrator to offer technical assistance to advance the project.

The judges look forward to launching the pilot with the support of the task force and local stakeholders to tangibly improve access to justice in Pristina, with the hope that it will be scaled to benefit other courts in Kosovo in the future.

To learn more about our IJET program, please contact the ABA Rule of Law Initiative at [email protected]