BOSNIA & HERZEGOVINA Trends and Developments Contributed by: Igor Petković and Branko Marić, Marić & Co.
its outcome. The mediator is freely selected by the parties, typically after several rounds of proposals until a mutually acceptable candidate is identified. The selection usually depends on the mediator’s profes - sional reputation and, where relevant, on the media - tion style considered most appropriate for the dispute. Mediation styles are commonly grouped into three categories: facilitative, evaluative and transformative. Facilitative mediators focus primarily on the process, seeking to reopen blocked channels of communica - tion and assist the parties in reaching their own solu - tions. Evaluative mediators place greater emphasis on the substance of the dispute and are often engaged where parties require a more structured assessment of their respective positions. Transformative mediators seek to empower the parties by demonstrating that they retain control over both the process and the ulti - mate outcome. Although less frequently encountered in commercial disputes, this approach focuses less on achieving settlement itself and more on improving the relationship between the parties and encouraging constructive future interaction. Mediation is also one of the most private forms of ADR due to its informal nature and the flexibility afforded to the parties. Unlike arbitration, mediation is influenced by legal rules rather than governed by them in the same procedural sense. Its effectiveness, however, depends almost entirely on the parties’ willingness to negotiate in good faith. This is both mediation’s greatest strength and its princi - pal limitation. It provides an opportunity not only to resolve disputes but also to preserve commercial relationships, making it an attractive option for par - ties wishing to continue doing business together. At any time, either party may terminate the process if negotiations cease to be productive. Legislators have therefore sought various methods of encouraging par - ties to demonstrate a stronger commitment to amica - ble dispute resolution. Mediation and arbitration are closely related and Arb- Med-Arb is by no means the first attempt to combine them. Arbitration-mediation models have existed for some time, while Med-Arb has long been recognised as a hybrid process that allows parties to attempt
mediation before unresolved issues are determined through arbitration. Under a traditional Med-Arb model, if mediation does not result in a settlement, the parties may agree that the mediator will assume the role of arbitrator and issue a final and binding arbitral award on the out - standing issues. In some cases, different individuals serve as mediator and arbitrator, allowing the media - tor to explore commercial interests and broader con - cerns that extend beyond the legal issues formally presented by the parties. The principal distinction between these approaches lies in the sequence of the proceedings and the role assumed by the neutral third party. The potential introduction of arb-med-arb Arb-Med-Arb was introduced through the joint proto - col adopted by the Singapore International Arbitration Centre (SIAC) and the Singapore International Media - tion Centre (SIMC). The AMA Protocol establishes a three-stage dispute resolution process that begins with arbitration, pauses for mediation and returns to arbitration only if mediation fails to produce a settle - ment. Like other forms of ADR, Arb-Med-Arb is based on party autonomy. The process is initiated through an arbitration agreement, which typically provides that any dispute arising out of or in connection with the contract shall be referred to arbitration administered by SIAC under the SIAC Arbitration Rules. The clause further provides that, following the commencement of arbitration, the parties will attempt in good faith to resolve the dispute through mediation administered by SIMC under the SIAC-SIMC Arb-Med-Arb Proto - col. Any settlement reached during the mediation may subsequently be recorded as a consent award by the arbitral tribunal. The procedure begins when one party files a Notice of Arbitration with SIAC. Within four working days, the SIAC Registrar notifies SIMC that arbitration has been commenced pursuant to the Arb-Med-Arb clause. Once the arbitral tribunal has been constituted, it stays the arbitration proceedings and refers the dis - pute to SIMC for mediation.
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