WHY ADR IN THE BALKANS MATTERS
Posted on Feb 10, 2017 |Publications
By: Hon. E. Michael Kavanagh (Ret.)
I have been privileged, on two separate occasions, to be retained as a legal consultant for a program sponsored by the United States Agency for International Development (USAID). The program was designed to assist local authorities in strengthening the legal system in the Republic of Macedonia. In that capacity, I provided information to senior members of the Republic's Judiciary about a variety of legal topics including the use of alternative dispute resolution (ADR) such as mediation and arbitration. If properly implemented, such techniques could improve the efficiency and effectiveness of the Republic's legal system. The Republic of Macedonia is located on the central Balkan Peninsula in Eastern Europe. It was formerly part of the old Yugoslavia and declared its constitutional independence in 1991. It is a landlocked country about the size of Vermont and has a total population slightly in excess of two million people. Its legal system is composed of municipal courts, district courts and appellate courts and its judges, for the most part, are nominated by an independent republic counsel and confirmed by the nation's parliament. When Macedonia applied for entry into the European Union, it agreed to the provisions of the Stabilization and Association Agreement. By doing so, certain reforms in the Republic's legal system were to be implemented that not only would serve to attract foreign investments but would also protect democratic institutions newly established in the Republic. At the same time, a forum would be provided wherein basic freedoms and human rights would be safeguarded.
My brief stint as a consultant was to convince administration officials within the Macedonian Judiciary that ADR techniques have the potential of greatly reducing existing case loads. As a result, Macedonian judges could devote more time to pressing and complicated matters that are on their court calendars. I learned as a result of a meeting with the president of the Republic's Chambers of Mediators, that mediation and arbitration techniques are not widely used in civil disputes. Many of the judges in the Republic believe that if their case loads are reduced, cutbacks will almost inevitably be made in the number of judges who are employed in the Republic. In addition, qualified individuals are reluctant to serve as arbitrators/mediators because they are inadequately compensated ,and training programs to assist them are virtually non-existent. Moreover, rarely are provisions calling for arbitration and mediation included in commercial contracts because attorneys practicing commercial law within the Republic do not fully understand them and Macedonian courts, at all levels, have been reluctant to enforce them.
Based upon my contact with members of the Macedonian Judiciary, I made the following recommendations:
1. Institute a formal training program for all judges on the use of mediation/ arbitration techniques in civil disputes with specific emphasis on how these techniques have been successfully utilized in other jurisdictions to reduce existing case loads.
2. Establish a list of qualified personnel, preferably retired judges and experienced litigators, to serve as neutrals who would preside over arbitration and mediation proceedings in the Republic. In that regard, I recommended that a certification process be established by the Macedonian Judiciary insuring that only qualified individuals are eligible to serve in this capacity. Training programs should be offered for those who wish to serve. A fee schedule should be established that would provide all mediators and arbitrators with adequate compensation.
3. Promote the use of ADR techniques and, in particular, mandatory mediation and binding arbitration clauses in commercial contracts. Encourage the support and enforcement of the provisions in the Macedonian Courts.
Based on my experience as a member of the New York State Judiciary, both at the trial and appellate level, and my services as a mediator and arbitrator, I am convinced that ADR techniques, if properly implemented, will go a long way towards improving the Macedonian legal system. I know that many of these reforms have since been implemented and studies are being conducted to determine their impact upon the efficiency and effectiveness of the Republic's legal system.
Hon. E. Michael Kavanagh is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to hear cases throughout New York State. Hon. Kavanagh was voted one of the Top Ten Arbitrators in New York State by the 2017 New York Law Journal Annual Reader Rankings Survey for the fifth consecutive year.
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