Alternative Dispute Resolution Kick-Off Training event at the Zagreb Commercial Court

October 6, 2007 - One of the luxuries or living in the 21st century is the ability to almost instantaneously ask friends for advice any where in the world, at any time. Yesterday we called on one of our friends working in a Federal District Court and asked him, if he was here this morning with all of us what would he say. I found his response to be perfect for this occasion. He said: "About 95% of my civil cases settle out of court." It is important to develop a culture of "settlement" in which dispute resolution is not only common - it is expected! While the first person to bring it up might be the judge, lawyers need also to speak out for settlement - without fear that to do so would exhibit a sign of weakness. "Settlement", he says, "is always on my agenda from the beginning of a case to the end."

I am very pleased to note that the Croatian judges, among others, have recognized the potential to resolve disputes through such mechanisms as mediation and conciliation. These avenues are best viewed as complementary to the judicial proceedings, which if applied correctly will reduce caseload, bring parties closer to enduring conciliation and also attain public recognition and respect in the judicial sector and judicial performance.

Allow me to expand on some of the leading ADR benefits, including neutrality, confidentiality, flexibility and cost-effectiveness. In contrast to the adversarial environment of a courtroom, ADR mediators act impartially and work with parties to help bring about an effective and enduring solution to the satisfaction of all parties. Litigation is generally more expensive and the longer it takes, the more expensive it becomes - even a successful party will incur unrecoverable costs. Using ADR gives you control over costs and the potential to settle earlier. Proceedings are conducted in private and in confidence, protecting the reputation of individuals, corporations and brands which allows a freer exchange between parties. The wide range of available techniques and the adaptable nature of ADR methods make it a very flexible mechanism for the resolution of all types of disputes, from a single case to a series of related claims. Further, an ADR process can be arranged at rather short notice - urgent cases may be heard in a matter of hours, if necessary. But, perhaps, most importantly ADR is conciliatory in nature, which enables parties to preserve and enhance their relationship, avoiding the pitfalls of a winner-loser court outcome, and as such precludes potential future court claims. ADR takes place in a non-threatening forum, enables parties to be heard and understood and to appreciate one another's position, promoting positive working relationships. Litigation carries a high level of uncertainty and risk over which parties have little control. Using ADR puts parties in the middle of the process with more certainty that a mutually satisfactory solution will be reached.

In the U.S. and Europe ADR has a high success rate, even cases that do not settle immediately usually do so in time and the process tends to generate movement among parties which is not readily achieved in a charged courtroom environment.

ADR in Croatia. In 2003, the Sabor adopted the Law on Mediation which set forth the basic legislative framework for ADR application in Croatia. Since then several courts throughout Croatia have experimented with ADR/mediation cases. Perhaps best known is this very court - Zagreb Commercial Court. I have been very impressed with the ADR figures - in 2006 over 320 ADR referrals and in 2007 215 cases received so far. Currently, the Zagreb Commercial Court has over 200 ADR cases on their docket - this is excellent news considering that this program is just a little over a year old.

In closing, I must congratulate judges Simac, Markovic, and all those who have or plan to introduce mediation at your courts. This is the kind of activity that will serve the public and the businesses and bring the message that parties have a greater role in the dispute resolution process - in or out of court.

Back...