The Dutch Push towards Mediation by Joost van Imhoff

Joost van Imhoff

On November 5th founding member of Faces Majlie de Puy Kamp wrote a FACES thought piece on mediation law in the Netherlands[i]. In this piece she explains how mediation is facing some trouble with Dutch civil law, lawmakers and other judicial parties such as the supreme court of the Netherlands. Since that month some attitudes seem to have shifted and, even in criminal law, some wheels have now been set in motion. On 26th April, Member of Parliament Ard van der Steur submitted his bill on mediation[ii]. The media, mediators and various judicial parties are anticipating the new way of how the Dutch will handle their disputes in the future. In this article I will have a look at this new mediation bill and the various changes that are occurring.

The new mediation bill that is awaiting approval on 23rd May 2013 consists of three laws[iii]. The first law is supposed to tackle the current issue with mediator being a non-existent title and therefore lacking quality control. This law will give birth to an official mediator register where one must enlist in order to call him/herself a mediator. In order to enlist one must acquire training or education at an institute that is acknowledged by the law. Through this law, mediation clients are ensured a certain level of quality of enlisted mediators plus their pledge of secrecy that comes with their registration. In return, the mediator will be granted the right to silence in court.

The second law aims to deal with settlement agreement issues. At this moment a settlement agreement through mediation has its legal roots in contract law and is often empowered by a notary. The second law: “stimulating mediation in Dutch civil law” aims to strengthen the legal position of mediation as a commonsense alternative to traditional litigation. It strives to do so through three methods. First, it will put legal weight behind the mediation agreement by ensuring confidentiality and empowering the agreement as evidence of what both parties are obligated to do within the context of mediation. As Majlie previously pointed out this confidentiality is essential for both the client and the mediator in the mediation process. Secondly the law will hold the mediation agreement as binding if it is specific and precise enough. Lastly it will implement a mandatory note in subpoenas and case files stating whether or not the parties have tried mediation. If not, judges are asked to steer parties towards a mediator.

The third law is an administrative law stating that boards of companies and organizations must look in to the possibility of using mediation as a tool to handle their disputes. Furthermore, businesses are stimulated to point other interested parties towards mediation as a possible conflict resolution tool.

It seems as though a majority of the Dutch parliament support this mediation bill. However, don’t start your Dutch mediation practice just yet. The law is awaiting approval this month but not everyone is happy about it. At the 14th May kick-off event for the new Corporate Mediators Association (VCM) in Amsterdam the chairman of the commercial chambers of the Dutch court, Peter Ingelse, was interviewed[iv]. He firmly stated that judges should not be pushed to steer parties towards mediation by Dutch lawmakers. Even though he had no trouble with mediation in general, he did not like the idea of being responsible for referring a case towards a process he did not know and had no control over. As a public figure and responsible judge he did not want to be accountable for pushing people towards a process in which the outcome cannot be measured against the law as an objective measurement tool. This could create an obstacle if other influential parties share this attitude.

At the same kick-off event, an open discussion was held with the subject: mediation and its role in the Dutch society. Even though these supporting laws are waiting to be implemented and the judges might resist, how about the rest of the Netherlands? Here are some of the issues that the Netherlands are still dealing with according to a hotel conference room full of subject matter experts:

-  Taking a dispute to the judge’s table is much cheaper in the Netherlands as opposed to Anglo-Saxon countries. (4 to 8 times cheaper). Therefore it is difficult to implement international mediation processes into the Dutch situation.

-  The Dutch consider themselves to be ‘polderaars’ meaning that they are more likely to talk things out amongst themselves than people in different cultures are. Therefore, once a dispute in the Netherlands needs professional attention it is already high on the escalation ladder. The attendees believe mediation to be useful before it reached this stage.

-  People know too little about mediation. It is widely unknown.

-  There is no mandatory disclosure clause in Dutch civil law. Therefore going to court is less risky.

-  There are too many mediators in The Netherlands (4000 of which 100 actually make a full time living on mediation). Making it difficult for the profession and title to grow and gain both distinction and prestige.

-  Proposing mediation in a dispute is viewed as a weakness.

Mediation seems to have a lot of start-up and cultural issues in the Netherlands. The Dutch, like many other people, do not fancy change. Mediation is still frowned upon and often seen as a soft option. The 4000 (of which some are untrained) mediators are not helping in taking mediation to another level in this small country. Slowly however both businesses and households are becoming more familiar with mediation (sometimes through experience). As an example: according to a survey by the Dutch Mediation Institute (NMI) 88% of Dutch boroughs know mediation and 79% use mediation in their disputes. This signifies a big grow in both familiarity and use of mediation by (government) organizations[v].

The laws that are awaiting their approval are certainly a step in the right direction. As Majlie concluded: undoubtedly the Netherlands will follow the United States sooner or later and I firmly believe mediation has a great opportunity in the Netherlands. It is just a matter of time and familiarity with the process until all interested parties are convinced of the potential of mediation. In fact the first pilot in mediation has been a success. The department of justice and the criminal court in Amsterdam have experimented with mediation in criminal law cases[vi]. 17 out of 26 cases (65%) reached a mediated agreement between victim and offender. This success resulted in precipitating six courts throughout the Netherlands to implement mediation this fall. A great step for the Dutch in dealing with their disputes effectively.








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