荷兰的仲裁 - 过去 现在和未来

MEDIATION IN THE PAST - PRESENT - FUTURE

8.1.2 Organisations and specific models

The Vereniging van Advocaat-Scheidingsbemiddelaars (VAS) (Association of Divorce Lawyers-mediators) was established in 1989. VAS is essentially composed of lawyers specialised in handling divorce cases, who have successfully completed a special mediation training course. In this course, psychological skills will be developed next to specific negotiation and legal skills. VAS membership implies compulsory permanent education and sharing experiences in divorce mediation with fellow members. VAS has issued its own Rules of Professional Conduct, and a standard Agreement to Mediate. These are published on its website.33 VAS maintains regular contacts with similar organisations abroad, such as the Academy of Family Mediators in the US. VAS currently has well over 300 members. Next to VAS, there are mediators practicing individually and independently in this area. The VAS Rules of Professional Conduct contain some interesting provisions. The basic idea is that one VAS-lawyer will be engaged as a single mediator by both parties. Rule 1 provides that nevertheless, the mediator will not loose her professional status of lawyer. This Rule serves the interest of the parties: it extends the Rules of Professional Conduct of the Netherlands Bar Association into the domain of mediation. Thus, lawyer-mediators are probably able to invoke the well established right to professional secrecy for lawyers.34 In line with the NMI and UNCITRAL Rules, the VAS Rules of Professional Conduct also stipulate that once a mediation has been terminated, the lawyer-mediator will not be allowed to act as a lawyer for one of the parties. This prohibition extends to the partners in the mediators law firm.

VAS Rule 6 provides that the mediator must see to it that both parties are sufficiently aware of the legal consequences of the steps they might consider in their negotiations. Model rules have also been laid down at a European level, through the Council of Europe Recommendation No R (98) 1 on Family Mediation. The Preamble refers to [] the detrimental consequences of conflict (resulting from divorce) for families and the high social and economic costs to States []. The Preamble also refers to [] the results of research into the use of mediation [] which show that the use of mediation has the potential to improve communication between members of the family [] and to provide continuity of personal contacts between parents and children.

The Principles contained in the Recommendation provide, inter alia, that the mediator must preserve the equality of the bargaining positions of the parties, that the mediator should have a special concern for the welfare and best interests of the children, and that the mediator should pay particular regard to whether violence has occurred in the past or may occur in the future, and the effect this may have on the parties bargaining positions. In addition, it is stipulated that the mediator may give legal information, but should not give legal advice.35 33. 34.

www.vas-scheidingsbemiddeling.nl.

However, on 5 February 2001, the Disciplinary Tribunal in Amsterdam held that a lawyer does not exercise the profession of lawyer when she is acting as a mediator. 35. The full text of this Recommendation can be downloaded from http://cm.coe.int/ta/rec/1998/98r1.htm.

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8.1.3 The mediators

Although VAS members are essentially lawyers, albeit with special skills in psychology, it is not unusual in serious divorce disputes to have one lawyer and one psychologist working together as co-mediators.

8.1.4 Data from practice and experiments

According to the NMI surveys, many of the registered family mediations result in a settlement agreement. Such settlement rates may be regarded as an indication for success, although it should be reiterated that the baseline of divorce disputes is not known. Of the 618 mediations that were initiated, 436 have resulted in a settlement. That is a settlement rate of 70%. Some individual mediators report settlement rates of over 90%.36 Specific results of the court-encouraged mediation experiments in this area, which are conducted under the guidance of the Ministry of Justice, were not yet available at the time of writing this report. In these experiments the researchers set out to uncover at what stage a referral to mediation will be most effective: before a petition is filed, when an interim relief injunction is sought, or while the case is pending for a final judgment.

8.2 Labour disputes

8.2.1 Nature and legal framework

Labour disputes constitute the second major practice area for mediators in the Netherlands. Possibly this is because labour disputes, like family disputes, are often centered around long-standing human relationships. As in family disputes, the stakes are high for the parties involved, particularly for employees. Labour disputes may be much more varied in structure than family disputes. Such disputes may arise between an individual employee and a colleague or direct supervisor, or between a trade union and an employer, or between a trade union and an employers association. Interest groups are important in this area, and a preliminary distinction can thus be made between collective and individual labour disputes. As indicated, the historical institution of Rijksbemiddelaar arguably failed as it was not developed jointly with the interest groups representing both sides of industry. At the risk of oversimplifying, it can be said that labour relations in the Netherlands were increasingly collectivised and also supervised (by the government) until the early 1980s. Supervision was borne out by governmental wage policy and a system of ex ante dismissal authorisation, collectivisation materialised in generally binding industry-wide collective agreements, and also in an extensive social security legislation, providing a huge safety-net for those unemployed for reasons of redundancy or health (disability insurance). 36.

NMI Informatie (2001) Tijdschrift voor Mediation Vol.3. Hoefnagels G.P. Handboek

Scheidingsbemiddeling (Tjeenk Willink, Deventer, 2000).

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The upshot for labour disputes was twofold. First, for many years, individual disputes in particular were camouflaged. The disability insurance system proved to be an especially attractive way out, both for employers and employees. Second, gradually employers associations and unions began to develop an aversion to government intervention, or indeed intervention by any third party. From 1980 onwards, the landscape of labour relations is changing drastically, against the backdrop of globalisation, privatisation and de-unionisation. Government interventionism gave way to employers associations and unions working together in a business-like, consensus oriented manner. This practice of mutual consultation (termed the Polder model) is said to have contributed strongly to a restoration of Dutch economic competitiveness. In this context, initially no need was felt by employers and unions to institutionalise mediation. Recently, however, employers and unions have come to change their minds about the usefulness of mediation, particularly in individual labour disputes. For employers, the tightened employment market provides an incentive to negotiate with employees. For unions, financial limitations provide an impetus to consider mediation as an alternative for union supported court proceedings. And the rising costs of the national disability insurance scheme now stimulates employers and employees to attempt solving underlying disputes first, before resorting to the insurance scheme.

8.2.2 Organisations and specific models

There is not, as yet, an organisation catering for modern mediation services for labour disputes in all sectors of the economy. Collective disputes in the private sector are occasionally mediated by ad hoc bemiddelaars, traditional mediators, usually politicians or professors, who may be selected on the basis of their authority. For collective disputes in the public sector, the situation is different since 1984, when the Advies- en Arbitrage Commissie AAC (Advice and Arbitration Commission), was established, to assist civil servant unions and government employers in solving disputes over terms of employment in the public sector. The word mediation is not featured in the name AAC; former AAC Chairman Professor Albeda interestingly regarded mediation as a form of advice. By the end of 2000, the public sector social partners established the Nederlands Instituut Conflictmanagement Overheid en Arbeid NICOA (Conflictmanagement Institute for Government and Employment). NICOA maintains a register of bemiddelaars and mediators, who can be engaged by public sector employers and employees through NICOAs ADR-desk. Mediators must be NMI-certified. Both the bemiddelaars and the mediators must have special expertise in public sector employment relations. NICOA will develop its own Rules of Professional Conduct, which will be inspired by the NMI Rules, but slightly broadened so as to encompass bemiddelaars-non-mediators as well. NICOA intends to handle requests for mediation in both collective and individual employment disputes, within the public sector. Individual labour disputes in the private sector were hardly mediated until recently, although some crypto-mediation could be observed in the practice of ex ante dismissal authorisation. Staff members of the Arbeidsvoorzieningsorganisatie (Labour Office), who are in charge of authorisation, occasionally seek to mediate

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when handling a request for a dismissal permit, although this practice is not publicised.37 Since a few years, modern mediation services are offered by private foundations, law firms or management consultants. The largest player currently is the Mediation Centre in the city of Breda. An important forum where experts in mediation and labour relations regularly meet is the NMI groep Arbeidsverhoudingen, the Labour Relations discussion group within the NMI. Here, lawyers, psychologists, union leaders, personnel officers and management consultants, all certified NMI mediators, meet every six weeks to discuss recent developments in the area. Specific models do not, as yet, exist for labour disputes. As indicated, NICOA is preparing Rules of Conduct. In the absence of specific models, the NMI Mediation Rules will remain of overriding importance. Meanwhile, the power imbalance between individual employees and their employer is a reason for concern. The problem may be reinforced if the employer pays the mediators fee, or when the mediator has a prospect of conducting multiple mediations for one employer. At a European level, specific Models are lacking too, although mention should be made of a major stock-taking of national labour mediation practices by the European Commission in 1993.38 Also noteworthy is the duty undertaken by the Contracting Parties to the European Social Charter, [] to promote the establishment and use of appropriate machinery for conciliation [] for the settlement of labour disputes. If one reads a progressive undertaking in this Treaty provision, then the Dutch government may be said to act in violation of the Social Charter.

8.2.3 The mediators

A distinction needs to be made between the traditional bemiddelaars (mediators), the crypto-mediators from the Labour Office, and the modern mediators who are NMI-certified. Traditional mediators tend to be politicians or professors with a background in economics, sociology or law. The Labour Office officials usually have a professional training in personnel management. In the major cities, a number of such officials will hold a law degree. These officials may draw upon their expertise of the labour market when conducting mediations. The Labour Office is, after all, reponsible for collecting information about, and acting as an intermediary on, the labour market.39

8.2.4 Data from practice and experiments

According to the NMI surveys, 206 out of the 345 mediations registered since 1999 have resulted in a settlement agreement. This implies a settlement rate of almost 60%. These figures apply to modern mediation. With regard to crypto-mediation it has been 37.

De Roo A & Jagtenberg R Settling Labour Disputes in Europe (Kluwer Law and Taxation,

Deventer/Boston, 1994). The Arbeidsvoorzieningsorganisatie. 38. Kerr A The Resolution of Industrial Disputes (Dublin, 1993). 39. De Roo A & Jagtenberg R 1994, above.

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recorded that in about 3% of all permit applications pending, mediation efforts take place. These mediations then result in a settlement rate of 90% approximately.40 Over the last 10 years, traditional mediators acting in major collective disputes have only managed to appease parties in a minority of cases. It should be noted however, that in these cases the mass media tend to be present, creating an outside pressure which may complicate mediation work. Some mediators have carefully avoided the public eye, and may quietly have created the right conditions for a solution, for which the audience at large credits the parties.

8.3 Administrative law and planning disputes

8.3.1 Nature and legal framework

Administrative law is concerned with the exercise of powers of a public law nature. Such powers ? entrusted to various agents (usually) within the public administration ? are essential for the discharge of the public tasks or duties assigned to these agents. Such powers may or may not involve the exercise of discretion.

Dutch administrative law is constructed around the substantive concept of besluit, commonly translated as public law juridical act (as opposed to private law juridical act). Such public law juridical acts constitute a key instrument for public administrators to balance particular interests against the general interest they are assumed to represent. This applies particularly to besluiten of a general nature, such as plans or policy rules. During the preparation of such besluiten of a general nature, interested parties may enjoy a statutory right to comment. Such a stage is commonly termed beleidsvoorbereiding (policy preparation). There are also besluiten in which a statute, plan or policy is concretised in an individual case, as a beschikking (public law decision). The addressee may challenge such a decision in law, whereas here, too, other interested parties may raise objections in designated cases. Before an official decision can be challenged in a court of law, the grievant will first have to submit the decision to the relevant public authority for reconsideration, in an internal review procedure, called the bezwaarfase. As administrative law contains special safeguards for interested parties to voice their objections, public administrators must use public law tools instead of private law tools, where possible. After all, the essence of public administration activity is its involvement with multiple addressees, who may or may not be easy to identify. Exactly here lies a pitfall for mediation in administrative law disputes. Mediation is a method tailored to achieve individualised justice. Individualised justice presupposes that all interested parties have been identified, and participate in the process. Many administrative law experts in the Netherlands regard the (im)possibility to involve all interested parties as the key test for or against using mediation. Nevertheless, many experts see opportunities for introducing mediation, or mediation techniques, during the beleidsvoorbereiding, the preparation of public acts of a general nature, and during the bezwaarfase, the internal review of official decisions. Various mediation initiatives and experiments can be observed in these particular stages.

40.

NMI Informatie 2001 o.c. and De Roo and Jagtenberg 1994, above.

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