Historical Aspects of the Development of the Mediation Institute Before the Divorce of Marriage in Bosnia and Herzegovina with a Focus on Positive Legal and Sociological Aspects

Abstract

Every social phenomenon has its own "life" cycle from origin and development to termination. It's the same with marriage. However, the termination of marriage should not produce negative consequences primarily for children, as subjects who did not decide on the formation or termination of marriage, but also for the family as a community of special social interest. That is why the institution of mediation has been established in the legal order, as a kind of "therapeutic" institute that should help overcome all the negative consequences of the end of a marriage, both on the part of the children and the spouse. The paper, therefore, emphasizes the constitutional foundations of marriage and the family, with a special focus on mediation before divorce, intending to analyze normative solutions and their application in practice, and offering de lege ferenda proposals in the existing constitutional and legal frameworks to help people when solving possible misunderstandings that can weaken marital bonds and destabilize the entire family system with their negative consequences. We focused special attention on the advantage of mediation in resolving marital disputes, and the most common contents of mediation during divorce are also listed. If problems arise in the marriage due to which it cannot survive, thereby losing its function, the spouses initiate a divorce case before the competent court. Before making the final decision on divorce, the spouses are obliged to turn to a competent mediator who will provide them with the necessary assistance to determine the possibility of survival of the marital union. To collect the highest quality data, empirical research was conducted in cooperation with centers for social work throughout Bosnia and Herzegovina, which we used when analyzing the current situation and synthesizing conclusions to improve it.