Enforceability of Mediation Agreements - Croatian and European Law
![handle is hein.journals/jura2017 and id is 278 raw text is:
Eduard Kunstek - Vjekoslav Puljko - Mirela Zupan: Enforceability of Mediation Agreements - Croatian and European Law
Eduard Kun~tek, Ph.D.
University of Rijeka Faculty of Law, Republic of Croatia
Vjekos lav Puljko, Ph.D.
Josip Juraj Strossmayer University of Osijek
Faculty of Law, Republic of Croatia
Mirela Zupan, Ph.D.
Josip Juraj Strossmayer University of Osijek
Faculty of Law, Republic of Croatia
Enforceability of
Mediation Agreements -
Croatian and European
Law
1. Introduction
Access to justice within the European judicial area
is an imperative reflected in the increasing role of
mediation as a means of alternative dispute resolu-
tion.' Through a wider prism, the Stockholm Pro-
gramme places the focus of judicial cooperation in
civil matters on the free movement of judicial deci-
sions (including all other acts equated with judicial
decisions), and, to that end, effective cross-border
enforcement should be achieved by the abolition of
exequatur.2 If we join these two propositions, the
rationale of European legislators is evident: a) that
disputes are resolved faster, more efficiently and
with less cost by means of the mediation process,
and b) that the outcome of a peaceful settlement of
a dispute is suitable for unrestricted enforcement
in any Member State of the European Union.
The key European legislative act of mediation
was adopted in 2008 in the form of a Directive on
certain aspects of mediation in civil and commer-
cial matters,' imposing an obligation on Member
States to apply the provisions of this Directive to
their respective national legislation. By implement-
ing the Directive, the Member States should ac-
complish its objectives and purpose in a manner
deemed acceptable to the relevant national legal
order.4 While adopting the new Mediation Act of
2011, Croatia was guided by the need for harmoni-
zation with EU law. We should therefore address
the nomotechnical solution of that Act, as adopted
by the Croatian legislators. Specifically, we should
emphasize that, although the scope of the Media-
tion Directive ratione materiae refers to cross-
border civil and commercial disputes, Member
States are free to extend the application of its pro-
visions to domestic (national) procedures.? The
importance of such a solution was reflected earlier
in the Draft Act on Amendments to the Mediation
Act of 2003: [a] general attitude of the legal sys-
tem of the European Union is that a dual legal
system (one for cross-border and the other for oth-
er disputes) would not provide equal rights and
obligations for both domestic and foreign natural
and legal persons, but on the contrary, it would
cause legal uncertainty; the concept of a uniform
legal system for domestic and cross-border dis-
putes in relation to mediation is a more favorable
option for the Republic of Croatia.6 This attitude
was used later in the Strategic study of the develop-
ment of mediation in civil and commercial proceedings
in the Republic of Croatia' and the new Mediation
Act.8 It may be noted here that, to some extent, this
monistic model may thwart the efforts of the Eu-
ropean model when it comes to cross-border en-
forcement itself.
Given the increasing number of mediation pro-
cesses and the concomitant interest in mediation
and its legal effects,9 enforcement of settlement
agreements resulting from the mediation process
should reflect the fundamental postulates of medi-
ation, i.e., confidentiality and speed. In its recital
(19), the Mediation Directive itself stresses that
mediation should not be regarded as a poorer alterna-
tive to judicial proceedings in the sense that compliance
with agreements resulting from mediation would de-
pend on the good will of the parties.
However, uniform rules on enforcement are not
contained in the Mediation Directive itself. En-
forcement is left to enforcement mechanisms in a
particular Member State, following which the
agreement should be made enforceable by a court or
other competent authority in a judgment or decision or
in an authentic instrument in accordance with the law
of the member state. Bearing in mind that, in the
adoption of the Mediation Act of 2011, the Croa-
tian legislature was guided by the need to comply
with the EU acquis communautaire, we examine
whether it managed to achieve the ratio legis of the
European legislation regarding enforcement of
mediated settlement agreements.
2. Cross-border enforcement in the European
system of mediation
In 2002, the Green Paper on alternative dispute
resolution in civil and commercial matters
JURA 2017/1.
278](ViewImageLocal?handle=hein.journals/jura2017&div=33&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Enforceability of Mediation Agreements - Croatian and European Law
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most