BOSNIA & HERZEGOVINA Trends and Developments Contributed by: Igor Petković and Branko Marić, Marić & Co.
SIMC then administers the mediation in accordance with its own procedural rules. As a general rule, the mediation should be completed within eight weeks, after which SIMC informs SIAC whether the dispute has been resolved. Where mediation successfully results in a settlement, the parties may request that the arbitral tribunal record that settlement as a consent award. Such an award benefits from the same enforceability as any other arbitral award. If mediation is unsuccessful, the arbitration resumes before the previously constituted tribunal, without the need to initiate a separate pro - ceeding. This structured interaction between arbitration and mediation distinguishes Arb-Med-Arb from more tradi - tional hybrid ADR mechanisms. Rather than replacing arbitration with mediation, the procedure integrates mediation into an existing arbitral framework, while preserving the enforceability and procedural certainty associated with arbitration. The procedural differences between arbitration and mediation create a clear distinction between the two mechanisms. Arbitration follows predetermined pro - cedural rules and culminates in a binding decision, whereas mediation remains flexible and largely shaped by the parties themselves. These differences, how - ever, are primarily procedural rather than conceptual. The informal character of mediation is not imposed by law but results from the parties’ preference for a less formal process. As mediation is largely driven by party autonomy, its procedural framework may vary considerably without altering its essential nature. The same observation applies to arbitration. Arbi - tral institutions apply different procedural rules, yet they all remain recognisable as arbitral proceedings because they share the same fundamental charac - teristics. Differences between arbitral rules therefore represent variations within the same legal framework rather than fundamentally different dispute resolution mechanisms. Another way to compare arbitration and media - tion is to focus on their respective outcomes. One might argue that the legal character of Arb-Med-Arb
depends on how the process ultimately concludes. If mediation successfully resolves the dispute, the process may appear to have functioned primarily as a mediation. Conversely, where mediation fails and arbitration proceeds to a final award, the process may seem essentially arbitral. This outcome-based approach, however, is ultimately unconvincing. The legal nature of a dispute resolution mechanism cannot depend solely on the result it pro - duces. If that were the case, the essential character - istics of the procedure would change retrospectively depending on whether settlement was achieved, an approach that lacks both conceptual consistency and practical certainty. Nevertheless, the final outcome should not be dis - regarded entirely. Looking retrospectively at an Arb- Med-Arb procedure that concludes with an arbitral award, it is clear that arbitration ultimately provided the binding resolution of the dispute. Where the par - ties reach a settlement during mediation, the media - tion phase becomes the decisive element in resolving the dispute. Even so, the overall procedure remains a single, integrated dispute resolution mechanism that combines arbitration and mediation within a struc - tured framework. Conclusion As the global economy becomes increasingly inter - connected and international commerce expands, dispute resolution mechanisms will continue evolv - ing alongside it. Traditional court proceedings are increasingly complemented by a broad spectrum of ADR mechanisms, ranging from formal arbitration to more flexible and hybrid procedures. As these mecha - nisms develop, the legal framework governing arbitra - tion must also evolve to accommodate the changing expectations of commercial parties. Against this background, Bosnia and Herzegovina should not limit any future arbitration reform to mod- ernising its existing legislative framework. It should also consider whether internationally recognised hybrid ADR mechanisms could be incorporated into its arbitration system. Arb-Med-Arb represents one such mechanism. By combining the procedural cer - tainty and enforceability of arbitration with the flexibil -
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