CROATIA's report: Mediation
CROATIA's report: Mediation
National rapporteur: Zvijezdana Rauš-Klier
HISTORICAL BACKGROUND OF NOTARIES PRACTICE IN CROATIA
The earliest beginnings of notaries practice in Croatia was in the middle of the 11th century in Mediterranean circle. The importance and reputation of notaries practice in the Republic of Croatia in the 12th and 13th century was high. Leaders of state-communes at that time wanted the state to operate at low-cost and pay only for affairs involving administration of justice. Other affairs especially non-disputed relations between citizens would be transferred to notary (Dubrovnik has had a perfect record of notarial acts dating from those times).
In 19th Century Continental Croatia notary public service was introduced when the Austrian Ministry of justice upon the initiative of the Supreme Court of Austria, introduced notary public service into legal system.
RECENT LEGAL AMENDMENTS
Currently there are a number of legal amendments under discussion. The actual recent amendments and of major relevance to the work of public notaries are those referring to:
a) Enforcement Act
b) Rules on the Method of Entry in the court registry.
The Mediation Act was effective from 28 January 2011. The Act defines mediation as every procedure in which parties try to settle the dispute by consent of one or more mediators. These mediators assist the parties to reach settlement, and suggest, not enforce the binding settlement.
The Act regulates mediation in civil, company, labour and other disputes. Settlement reached in mediation is binding for both parties and is an enforceable document. Mediation procedure begins upon acceptance of request. It is not required to conclude the agreement. Answer to the mediation request must be given within 15 days of receiving the proposal, or within any other deadline for response as stated in proposal. If requirements are not met, it is understood the mediation proposal has been rejected. Once mediation has been agreed by both parties this agreement has a binding effect, and no other court or arbitration procedures shall be initiated or continued during the agreed time period. Records of mediation agreement are not required by law to be publically registered.
Parties decide upon who will be appointed as mediator/s. In laws regulating notary public in Croatia, there are no legal political reasons for which notaries in principle cannot perform mediator function.
Register of Mediators is kept by the Ministry of Justice of the Republic of Croatia.
Mediators before and during mediation are obliged to be professional and impartial and are obliged to disclose any circumstances that may influence this. Any information must be kept in confidence
and during procedure, mediator can schedule with each party and can give information between parties with consent of both. Mediator/s can take part in the proposing and drawing of settlement.
3. NOTARY PUBLIC SERVICE AND MEDIATION
The elements of mediation are performed by notaries during dispute resolution. While attemping to conciliate the parties, notaries can within the frame of the law, draw notarial acts, solemize private documents and attest the signatures in private documents.
TYPES OF NOTARIAL CONCILIATION
1. NOTARY PREVENTIVE FUNCTION
Notaries now have more competences - in this context we talk of a notary preventative function. While performing the regular duties, harmonizing and reconciliation interests of the parties, legal actions and arranging relationships between the parties at a highly professional level contribute to the prevention of disputes.
2. NOTARY INTERMEDIARY FUNCTION/ADHESION CONCILIATION
Notaries when performing transactions, upon the request of the parties, can start further actions for regulating relations originated from those transactions. At inheritance hearings they can participate and put in order relations between co-descendents, acting as impartial public officers. Parties are made aware of their rights and interests and notary coordinate their relationship to facilitate alternative dispute resolution.
3. NOTARY COUNSEL-MONITORING FUNCTION
After dispute when the parties need a notary's act, or any other act, notary public acting as an impartial commisioner helps the parties become aware of both legal and interest positions and helps them overcome the dispute by consent.
In this function, notaries appear as mediators, pursuant to Mediation Act plus they have power to draw up adequate "settlement" as notaries public.
At the conclusion of marriage settlement on the marital estate, agreement on business shares transfer and in general, Notary regulates relations between the parties.
In the Republic of Croatia, notaries already "de lege lata" perform specific tasks of conciliatory character, with accent on counsel-monitoring function as impartial public officers of the parties.
By extending Notary's competencies, through conferring other tasks from the court jurisdiction non-contentious procedures, the conciliatory role will gain in importance.