荷兰的仲裁 - 过去 现在和未来 

MEDIATION IN THE NETHERLANDS: PAST - PRESENT - FUTURE

Annie de Roo and Rob Jagtenberg* II C

1 Introduction: modern mediation and its predecessors

The subject of this report, mediation, has been addressed before at conferences of the International Academy of Comparative Law, most recently at the 10th International Congress, held in Budapest in 1978. The Dutch national reporter at that time, Judge Elders, had confined his report to [] the use of conciliation for dispute settlement in civil procedure (emphasis added).1 The scope of the present report is wider, and not without reason. Recent mediation developments largely unfolded outside the courts, although the emerging mediation schemes are linked to the courts and the law of procedure in various ways. The Anglo-American term mediation first surfaced in the Netherlands in the early 1990s and has become part of Dutch (legal) language since. This does not mean that mediation as a mode of dispute resolution was hitherto unknown in the Netherlands. Mediation, as a process of third party assisted bargaining, had existed for several centuries, albeit under different Dutch names, such as bemiddeling, verzoening, conciliatie or (sometimes) comparitie. These methods of dispute resolution were commonly practised as a side-activity by judges, mayors, or yet other functionaries, using their intuition, experience of life, or mere authority. Here lies an essential difference with the modern mediation. What is so modern about modern mediation? In modern mediation, the techniques have been systematised and refined on the basis of experimental, predominantly American research.2 The benefits of principled bargaining - focussing on interests - have been analysed and practical insights have been accumulated. On this basis, mediation has changed into a professional activity: mediators have to demonstrate they master the new body of expert knowledge, they must be certified, and they are assumed to know how to navigate on the basis of their expertise. They must be associated with professional bodies that monitor quality and guarantee status. Another novelty is the institutional place of mediation. Modern mediation is propagated by specialised mediation agencies, which are increasingly annexed to the courts. Before discussing modern mediation in detail, at least some examples of historical mediation, and present day (quasi-)arbitration, must be given to allow a proper understanding of Dutch legal culture.3 Historical evidence of mediation goes back for many centuries. An interesting, well documented mediation practice was that of the 16th century Leidse Vredemakers * 1. 2. 3.

Erasmus University, Rotterdam.

Elders J.L.M. The use of conciliation for dispute settlement in civil procedure, in Netherlands Reports to the Tenth International Congress of Comparative Law, Deventer 1978.

Golann D Mediating Legal Disputes (1996, Little Brown, New York); Goldberg S B et al Dispute Resolution (1985, Little Brown, New York).

The sociologist of law Blankenburg has characterized Dutch legal culture as pragmatic, aimed at filtering out disputes. Blankenburg E. The Netherlands Zuckerman A. Civil Justice in Crisis (Oxford, 1999). It could also be argued that a taboo rests on disputing. An interesting linguistic example: dispute review boards are termed Raden van Deskundigen (Councils of Experts) in Dutch.

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(Leyden Peacemakers). Voltaire familiarised his French readers with this institution and the lawmakers of the French revolution era re-introduced the peacemakers as Bureaux de Paix, and subsequently Juges de Paix in France and the Netherlands; a fascinating example of a legal transplant.4 As from the introduction of Juges de Paix (in Dutch: Vrederechters, and later Kantonrechters) it was not uncommon to find judges acting as mediators in the courtroom.5 This in-court mediation used to be practised in family disputes, particularly divorce cases, often with the aim to save the marriage.6 In the Netherlands and various other jurisdictions on the European continent, the codes of civil procedure dictated a judicial attempt at mediating a case, often prior to a full hearing in court. Such preliminary conciliations however, were abolished almost everywhere in Europe in the 1950s and 1960s. Mediation also used to be practised outside the courts. Industrial relations and labour disputes constitute an illustrative area here. First traces of labour dispute settlement outside the courts appeared in the second half of the 19th century, originally as private initiatives. In this newly emerging area of law, conciliation, mediation and arbitration, for some time, even became the regular modes of dispute resolution with, however, varying degrees of success. Success appeared to correlate positively with the voluntary character of these 19th century institutions. As soon as their proceedings became compulsory, their success was on the wane. In 1923 the Dutch government introduced the institution of the Rijksbemiddelaar (Government Mediator), which not retained after World War II. It was not embedded in the emerging consultation schemes between employers and unions and therefore met little acceptance.7 Other forms of alternative dispute resolution proliferated throughout the Netherlands during the period 1950-1990. In commercial disputes, arbitration became a popular, institutionalised option, for reasons of expertise, confidentiality and the opportunities for international enforcement of arbitral awards.

In the new area of consumer law a trend of settling disputes through so-called Geschillencommissies (Disputes Committees) emerged.8 In the Netherlands, the activities of these bodies are characterised as quasi rechtspraak (quasi adjudication).9 Generally, they are composed of an independent-lawyer, acting as chairperson, who will be assisted by a representative of a consumer organisation and a representative of the particular branch of industry concerned. Overall, these committees practise the

4.

Raa ten C M G De oorsprong van de kantonrechter (Kluwer, Deventer 1970); Professor Chris

ten Raa was one of the pioneers of historical-comparative research into mediation; his research group at Erasmus University produced a large number of publications on the subject.

Raa ten C M G 1970, above. Bóné von E K E Le juge de paix (Centre dHistoire Judiciaire, Lille, 1995). De Roo A J and Jagtenberg R W Settling Labour disputes in Europe (Kluwer Law and Taxation, Deventer/Boston 1994).

Jacobs W A ADR en Consument: een rechtsvergelijkend studie naar de mogelijkheden van alternatieve geschillenbeslechting (Kluwer, Deventer 1998).

If Disputes Committees meet the requirements of impartiality, equal representation of the interested organisations and proper information on the working of their procedures, they may look for financial support to the government. At present, there are 28 Disputes Committees which meet these requirements.

5. 6. 7. 8. 9.

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method of bindend advies (binding advice), considered attractive because of the informality of the process. In the 1970s and 1980s, Dutch citizens became increasingly dissatisfied with the operation of the law due to inaccessibility of the courts, overcrowded dockets, increased formalism, long delays and high costs.10 These factors were strong incentives to consider other modes of dispute resolution. In addition, it was felt that courts were often not well equipped to address the nucleus of the problem, and to really solve the dispute submitted. Only a handful of academics and practising lawyers sought inspiration in the modern mediation techniques in the US. An early advocate of mediation was the Rotterdam professor of family law, Peter Hoefnagels, who combines the practice and academic study of mediation since 1974.11 All these examples may have created a fertile soil for the upcoming modern mediation. As indicated, the rise of modern mediation began in the US, where schemes emerged in a variety of areas in the late 1970s. The American enthusiasm for professional, institutionalised mediation spread to Europe, in the late 1980s and early 1990s. In the Netherlands, initially, it were particularly representatives of the private sector that became interested and involved in ADR, inspired by US and UK developments.12

2 Private initiative

1992 is an important year in the recent history of modern Dutch mediation. For the first time a group of people, mainly legal professionals, came together to discuss the promise and prospects of mediation. Some of these early fighters for mediation, basing themselves on their personal and professional experiences, had become dissatisfied with the outcomes of legal solutions, often ignoring the particular needs of parties. From the very beginning contact was sought with the government, which resulted in a lively exchange of ideas and views. The governmental participation would appear to be mainly directed at initiating and financing experiments. In 1993 the Nederlands Mediation Instituut (Netherlands Mediation Institute) NMI was formally established as a foundation, with the main purpose of informing the people at large about mediation and stimulating and furthering the practise and quality of mediation. In the early stage of its formation, NMI was inspired by the American Center for Public Resources and the British Centre for Dispute Resolution. The pioneers of these institutions had been the American and British business communities. Unlike CPR and CEDR, however, NMI wishes to serve all branches in society with an interest in

10.

Bruinsma F & Welbergen R Hoge Raad van Onderen (Tjeenk Willink, Deventer 1988; 2nd

edition 1999); Brenninkmeijer A F M Burgerlijk procesrecht als publiekrecht (Tjeenk Willink, Deventer 1993). In these publications the excesses of Dutch court proceedings were highlighted. The findings are rather shocking. 11. Hoefnagels G P Handboek scheidingsbemiddeling (Tjeenk Willink, Deventer, 2000). 12. Jagtenberg R & De Roo A The New Mediation: Flower of the East in a Harvard Bouquet

(2001) Asia Pacific law Review Vol 9 No 1, pp 63-82.

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mediation. NMI maintains a register of accredited NMI-mediators and liaises with other institutions and government departments. To be registered as a NMI-mediator one must have attended (with success) one of the NMI-accredited mediation training courses. In addition, there is an annual contribution of approximately 200 EURO due. NMI has its own mediation and disciplinary rules, code of conduct, and complaint procedure, which the NMI-mediator has to comply with.13 Considering its activities, NMI can be regarded as an umbrella organisation. The establishment of NMI was the first sign of institutionalisation of mediation in the Netherlands. To date, there are more than 2000 NMI-mediators and there are more mediators to come. It is surprising that most mediation training programmes are - still - fully booked. The number is exorbitant, when compared to the total number of mediations concluded.14 Between 1996-2001, 1222 mediations were initiated through NMI. This number implies that on average one mediator handles half a mediation annually! This (over)supply of mediators is not well balanced with the demand for mediation: the frustration of Dutch mediators.

3 Government interest

The foundation of NMI was an impetus for the government, in particular the Ministry of Justice, to engage in mediation. One of the first actions of the Ministry of Justice was the installation of the so-called Platform ADR in August 1996. Its main task was to investigate the prospects for mediation in court proceedings. The composition of the committee was wide. There were representatives of the judiciary, legal profession, academic community, and the ministry itself. The major findings and recommendations of the platform were laid down in its final report Conflictbemiddeling (Conflictmediation).15 Under the auspices of the Platform ADR two court annexed mediation pilot projects were undertaken. An important finding was that the referral to mediation by judges and legal aid bureaus was problematic.16 A major recommendation by the Platform ADR was to continue experiments with court annexed mediation. Following the final report of the Platform ADR, the so-called Meer Wegen naar het Recht Beleidsbrief ADR 2000-2002 (More Ways to Justice ADR Policy Letter 2000-2002) was prepared by the Ministry of Justice and presented to parliament.17 For the time being, this letter is the basis for the intending involvement by the government in the development of ADR. It must be said, however, that the direction of this envisaged governmental involvement is vague. In the policy letter dejuridisering and juridisering are the central, opposing themes. Unfortunately, there is no apt translation fully reflecting the Dutch meaning. In short, they encompass how Dutch citizens think about, deal with and eventually 13. 14. 15. 16.

These rules are all published on the bilingual NMI-website: http://www.nmi-mediation.nl. The total number of mediators has easily passed that of judges, being 1600. Platform ADR Conflictbemiddeling (1998).

Kocken C L B & Van Manen N F Weg van het Recht Paul Scholten Instituut University of Amsterdam August 1998. 17. Ministry of Justice Meer wegen naar het recht Beleidsbrief ADR 2000-2002.

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make use of the law. The policy letter states that Dutch people have become more litigious. This statement, however, is not backed by figures. According to the policy letter, the tendency towards litigiousness, must not be regarded as undesirable, since this is unavoidable in an emancipated, individualised, and internationalised society. It is an irreversible development. Nevertheless, the present government states that an attempt should be made at resolving disputes through other means than court proceedings. It is essential that people assume responsibility for the resolution of their conflicts. This view fits well the strive for privatisation by the Dutch government generally. In the light of this, the government is interested in the opportunities of mediation preceding, or during a court procedure. The expectation is that mediation may contribute to reducing the workload of the courts, which themselves are in a process of modernisation. Modernisation of the judiciary has become a major target of the present cabinet. It focuses on improvement of the administration of justice by inter alia reducing the length of court proceedings and improving access to court.18

4 Experimental research

Following the ADR Policy Letter, the overall project Alternatieve geschilafdoening en mediation (Alternative dispute resolution and mediation) was initiated. It encompasses two specific projects: Mediation naast rechtspraak (Court Encouraged Mediation) and Mediation Gefinancierde Rechtsbijstand (Mediation and Legal Aid). The general project runs from 2000 to 2003 and is headed by the national co-ordinator Machteld Pel, vice-president of the court of appeal in Arnhem. The organisation and implementation fully resides with the judiciary. A national bureau specially appointed for the duration of the project assists Mrs. Pel. In September 2001 the first interim report was published.19 The overall purpose of the project is to advise the Government on the desirability of court annexed mediation. In the Court Encouraged Mediation project, mediation is provided as an extra service during a court procedure. At the hearing, the judge handling the case may refer the parties to a mediator. If such mediation appears unsuccessful, the court procedure will be resumed. The judge is not informed of the negotiations during the mediation in the event that the court case is resumed. The mediation procedure is free of charge for the parties. The mediator, however, receives a fixed fee, which is directly paid by the Ministry of Justice. Next to Court encouraged mediation, there is the project Mediation in de Gefinancierde Rechtsbijstand (Mediation within the Legal Aid Scheme), which only started in May 2001. The main goal of this project is to resolve disputes by mediation, before a court procedure is initiated. The emphasis is on prevention. A major requirement is that at least one of the parties is entitled to legal aid. This is determined on the basis of the income of the parties. If both parties are entitled to legal aid, they both pay a fee based on their income akin to the fee for a court procedure.20 If a 18.

Ministry of Justice Rechtspraak in de 21e eeuw Contourennota modernisering rechterlijke

organisatie December 1998; Ministry of Justice Recht van spreken Interdepartmentaal Beleidsonderzoek Bedrijfsvoering Rechtspraak July 1999. 19. Landelijk project mediation naast rechtspraak Tussentijdse Rapportage (2001). 20. These costs do not cover all legal costs.

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