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Parties can also be referred to mediation by a court. Once a case is pending in an administrative court, Dutch law allows for the judge to probe opportunities for an amicable settlement.41 And indeed, experiments do take place within the Mediation naast Rechtspraak project. In their relationship with public authorities, citizens are not always and necessarily confronted with public law instruments. What citizens always experience, however, is a particular bejegening (treatment) by public authorities. When citizens have complaints about a mere treatment, they can turn to the National Ombudsman, or to any of the Municipal or other specialised Ombudsmen in the Netherlands. Within these established complaint procedures, mediation is now also increasingly playing a role.

8.3.2 Organisations and specific models

A single organisation offering mediation services in the administrative law area is currently lacking. Neither are there any specific, nationwide standards for handling such disputes. At a European level, there is the recent Council of Europe Recommendation, No. R (2001) 9, on Alternatives to Litigation between Administrative Authorities and Private Parties. This Recommendation is, in itself, quite interesting, as some of its provisions seem to imply a departure from stances taken by the Council of Europe in its earlier mediation Recommendations. In article III, 2, it is stated that [] mediation can be initiated by the parties or by a judge, or can be made compulsory by law. And `[] mediators can invite an administrative authority to repeal or modify an act on grounds of expediency or legality.42 One would expect future models on administrative law mediation to address specific issues, such as the tension between secrecy and freedom of information, or the amount of discretion which should be left to a public agency for it to have room to manoeuver at all. A few private organisations have been set up recently to cater for mediation in the administrative and planning area; a good example is the Stichting Mediation in Milieu en Ruimtelijke Ordening (Foundation for Mediation in Environmental and Planning disputes). This foundation accommodates expertise particularly in regard of mediation during the preparation of new plans or policies. The role of the mediator here is to bring all major interest groups potentially affected by a new public law instrument together. If consensus can be reached at this early stage, as to the contents of the draft instrument (plan, policy), its implementation is likely to meet little resistance. It is also possible for the public authorities and the interested private parties to cast their agreement in a so called public-private covenant. This type of mediation is akin to the Reg-Neg phenomenon, emanating from the United States. It is preventive in character. Mediation during the internal review of official decisions is increasingly entrusted to so-called Adviescommissies voor de Bezwaarschriften, standing committees actually in charge of hearing grievants and advising the relevant public 41. 42.

Article 8:44 Awb.

The full text of this Recommendation can be downloaded from http://cm.coe.int/ta/rec/2001/2001r9.htm.

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authority on whether and how to reconsider the decision under internal review. What happens here is that the result of a successful mediation reached before the committee is taken as the basis for a new official decision. It is important to realise that a public authority cannot simply waive its specific statutory powers to act. Eventually, the authority itself must remain in charge. As indicated, judges are allowed to probe the opportunities for an amicable settlement. The mediating judge cannot have side meetings with each of the parties, and at the same time be in charge of hearing and deciding the case. This would constitute a violation of the principles of natural justice. If a judge is to act as a full-fledged mediator, this judge should be a person different from the judge actually hearing the case. This division of roles was actually adopted in the court-encouraged mediation experiment with administrative law disputes, in the Zwolle district court.43 It is not clear whether Ombudsmen resort to a similar division of roles, when they are handling complaints, and yet feel that mediation may give better results.

8.3.3 The mediators

Judges, Ombudsmen and their staff, members of Advisory Committees in Internal Review procedures and Reg-Neg mediators often have a background in law (judges always). Increasingly, they will also have completed a professional mediation training programme. In this respect it is noticeable that the Vereniging voor Administratief Recht (National Association of Administrative Law Experts) VAR, dedicated its annual meeting in the year 2000, to Mediation and other alternative modes of dispute resolution.

8.3.4 Data from practice and from experiments

Mediation is a relatively new phenomenon in all the aforementioned varieties of administrative dispute handling. Mediation during the preparation of public law instruments (Reg-Neg mediation) is just beginning to show positive results, particularly in the area of environmental policy. Experience shows, that mediators in this area must be prepared for the fact that interest groups have acquired a firm place in Dutch politics and behave like repeat players, just like the public authorities.44 Information on mediation during internal review procedures is merely anecdotal. It seems mediation is used successfully in those cases where the number of interested parties is limited, and the parties are identifiable. This applies particularly to employment disputes between government employers and their civil servants; and to a lesser extent to disputes over building permits, that merely have an impact on the direct neighbour(s) of the applicant. More statistical information is available over the in-court mediation experiments in the city of Zwolle. In the year 2000, judges in the Zwolle district court referred 65 cases to the specialised judge-mediator (who herself was not involved in hearing or 43.

Pach M A Mediation in het bestuursrecht; het kan, het mag en het werkt Alternatieven van en

voor de Bestuursrechter, VAR Preadvies 126 (Boom Juridische Uitgevers, Den Haag, 2001). 44. Al J Beleidsbemiddeling Mediation (2000), Justiti?le Verkenningen Vol. 9.

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deciding these cases). Out of these 65 cases, 34 were completed in the year 2000, and out of these 34 cases, 21 were concluded with a settlement agreement. It is noteworthy that a considerable number of settlements related to labour disputes involving civil servants; such disputes are handled by the administrative courts. Out of 34, 13 cases related to civil servant disputes; 11 of these cases were settled through mediation.45 Finally, a figure relating to the mediation practice of Ombudsmen mediation. The Municipal Ombudsman of Rotterdam reported that during the last few years, 25% of the complaints brought to his cognizance, were actually mediated.46

9 The future of mediation in the Netherlands: some considerations

From the developments discussed above, it appears that a mediation-infrastructure is evolving in the Netherlands. Of particular interest seems the role of NMI as a national umbrella organisation concerned with quality assessment and benchmarking, hovering above various specialised mediation institutes and professional associations of mediators. This structure may be interesting for the development of cross-border mediation in the nearby feature. Such cross-border mediation will depend on the existence of national clearing houses, such as NMI. This is borne out clearly by the European ADR Model Rules, which exactly seek to facilitate cross-border mediation in Europe, using national clearing houses as a starting point.47 In the meantime, it is not clear in what direction modern mediation will develop in the Netherlands. This is partly due to the unclear role of the government. Perhaps, the interplay between private mediation initiatives, government ? particularly the Ministry of Justice ? and researchers is characteristic of the Netherlands. The Ministry of Justice is interested in mediation, as an additional method of conflict resolution, which could at the same time reduce judicial caseloads. Through the ADR Platform, the Ministry has first mapped out the areas where mediation might be used with some success; it then proceeded to subsidise experiments in these areas. For the actual mediations, the Ministry relies upon private mediation schemes and training programmes. For monitoring and measurement, researchers are engaged from various universities and private institutions. Conversely, mediators in private mediation schemes are interested in these governmental experiments, as they need mechanisms to secure a steady influx of cases. Researchers, from their part, are in need of research assignments. The resulting picture is that of an overall symbiosis. This approach starts with experiments and not with legislation, as in many other countries. It seems a prudent approach; the beneficiary is said to be the rechtzoekende, the citizen involved in a dispute and looking for justice to be done.

The enthusiasm for mediation among private parties seems to be growing, witness the proliferation of standard mediation clauses in the business community.48 45. 46.

Pach M A 2001, above.

Gemeentelijke Ombudsman Rotterdam, Verslag van Werkzaamheden 1997/1998 (Humanitas Rotterdam, 1999). 47. Jagtenberg R Cross-border mediation in Europe, in Barret G. Creating a European Judicial

Space Series of Publications Academy of European Law Trier Vol 30, 2001. 48. Jagtenberg R & De Roo A Mediation in het Bedrijfsleven Mediation (2000) Justiti?le

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Nevertheless, we would like to add a critical remark. There is a lot we do not know about personal characteristics of disputants and dispute characteristics that may be determinant of the success or failure of mediation. In this respect we welcome the experimental approach. Yet, it appears that some policy makers in the administration of justice are already in favour of mandatory referrals to mediation. It is argued that in this way, courts would be made more accessible. This is Lord Woolfs plea. We believe this is a misguided strategy. This viewpoint presupposes we know all there is to know about changes in the baseline of conflicts in society. The truth is that we know very little about this. Law can be regarded as an instrument of risk management. Other, traditional ways of risk management, such as family networks or social security are on the wane everywhere. Hence the demand for legal services is rather likely to increase. Citizens seem to be willing to allot significant portions of their income to legal dispute resolution, for example by taking out a legal expenses insurance. The assumption underlying Lord Woolfs statement is that citizens as taxpayers are not willing to invest in the administration of justice. In that situation, indeed the only way of speeding up the legal process will be to divert cases to mediation. But the alternative might simply be to invest more in the administration of justice. We contend that mediation can only be truly facilitative, if it is structured against the backdrop of an accessible legal system.49 It should not be mediation or law. It should be mediation and law.

Verkenningen Vol 9. 49. Jagtenberg R & De Roo A The New Mediation: Flower of the East in a Harvard Bouquet

(2001) Asia Pacific Law Review Vol 9 No No 1.

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