MEDIATION IN THE NETHERLANDS PAST- PRESENT- FUTURE Annie de roo and rob jagtenberg II C 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 Intemational Congress, held in Budapest in 1978. The Dutch national reporterat that time, Judge Elders, had confined his report to ] the use of conciliation for dispute settlement in civil procedure(emphasis added ) 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 i 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. Medation, as a process of third party assisted barga ining, had existed for several centuries, a beit under different Dutch names, such as bemiddeling, ver-zoening, conciliate or(sometimes) companitie. These methods of dispute resolution were commonly practised asa side-activity by judges, mayors, oryet other functionaries, using their intuition, experience of life, or mere authority Here lies an essental difference with the modem med ation. what is so modem about modem 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 beenanalysed 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 a ssumed to know how to navigate on the basis of their expertise. They must be associated with rofessional 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 increa singly annexed to the courts Before discussing modem mediation in detail, at least some examples of historical mediation, and present day(quasi-Darbitration, 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 Erasmus University, Rotterdam. Elders J.LM. The use of conciliation for disputesettlement 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 ) Golberg S B et al Dispute Resolution(1985, Little Brown, New York). The sociologstof law Blankenburg has characterized Dutch legal culture as pragmatic, aimed at filtering out disputes. Blankenburg E. The Nether lands Zuckerman A. Civil Justice Crisis (Oxford, 1999). It could also be argued that a taboo rests on disputing. An interesting lingustic example: d sput review boards are termed Raden in Deshzndigen( Councis of Experts)in Dutch
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 a ssumed 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 * Erasmus University, Rotterdam. 1. 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. 2. Golann D Mediating Legal Disputes (1996, Little Brown, New York); Goldberg S B et al Dispute Resolution (1985, Little Brown, New York). 3. 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
DE ROOJJAGTENBERG Vredemakers(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. As from the introduction of Juges de pair(in Dutch: Vrederechters, and ater 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. In the Netherlands and various other jurisdictions on the European continent, the codes of civil procedure dictated a judical attempt at mediating a case, often prior to a full hearing in court. Such prelim inary conciliations however, were abolished almost every where in Europe in the 1950s and 1960s Mediation also used to be practised outside the courts. Industral relations and la bour disputes constitute an illustrative area here. First traces of labour dispute settlement outside the courts appea red in the second half of the 19th century originally as private initiatives. In this newly emerging area of aw, conciliation mediation and arbitration, for some time, even became the regular modes of dispute resolution with, however, vary ing 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 govemment introduced the institution of the Rijksbemidde laar(Govemment Mediator), which not reta ined after World War Il. It was not embedded in the emerging consultation schemes between employers and unions and therefore met little acceptance Other foms of alternative dispute resolution proliferated throughout the Netherlands during the period 1950-1990. In commercial disputes, arbitration ecame a popular, institutiona lised option, for reasons of expertise, confidentiality and the opportunities for intemationalenforcement of arbitral a wards In the new area of consumer bw a trend of settling disputes through so-called Geschillencommissies(Disputes Committees) emerged. In the Netherlands, the activities of these bodies are characterised as quasi rechtspraak (quasiadjudication) Generally, they are composed of an independent-la wyer, acting as cha irperson, who Raa ten CMGDeoorsprong nan de kantonrechter(Khwer, Deventer 1970), Professor ten Raa was one of the pioneers ofhistorical-comparative research into med ation; hi research g at Erasmus University produced a large number of publications on the subject. 5 Raa ten CMg1970 above Bone vonEKELejuge de paix( Centre d Histoire Judiciaire, Lille 1995) De roo A j and Jagtenberg R W setting labour disputes n Europe(Khuwer Law and Taxation, Deventer/ Boston 1994). Jacobs W AADR en Con siament: een rechtsvergeli kend studie maar de mogelijkheden van alternatieve geschillenbeslechting(Kluwer, Deventer 1998). If Disputes Committees meet the requirements of mpartality, equal representation of the interested organisations and proper information on the working of their procedures, they may look for financil support to the govemment At present, there are 28 Disputes Committees which meet these requirements
DE ROO/JAGTENBERG 2 Vredemakers (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 appea red 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 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. 5. Raa ten C M G 1970, above. 6. Bóné von E K E Le juge de paix (Centre d Histoire Judiciaire, Lille, 1995). 7. De Roo A J and Jagtenberg R W Settling Labour disputes in Europe (Kluwer Law and Taxation, Deventer/Boston 1994). 8. Jacobs W A ADR en Consument: een rechtsvergelijkend studie naar de mogelijkheden van alternatieve geschillenbeslechting (Kluwer, Deventer 1998). 9. 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
MEDIATIONIN THE PAST- PRESENT-FUTURE will be assisted by a representative of a consumer organisation and a representative of the particular branch of industry concerned. Overall, these comm ittees practise the method of bindend advies(binding advice), considered attractive because of the informa lity of the proces 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 denys and high costs. 0 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 really solve the dispute submitted. Only a handful of academ ics and practising la wyers sought inspiration in the moden mediation techniques in the US. An early advocate of mediation was the Rotterdam professor of family law, Peter Hoefnagel who combines the practice and academic study of mediation since 1974. 1 All these examples may have created a fertile soil for the upcom ing modern 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 enthusasm for professional, institutionalised mediation spread to Europe, in the ate 1980s and ea rly 1990s. In the Netherlands, initially, it were particulrly representatives of the private sector that became interested and involved in ADR, inspired by Us and UK developments. 12 Private initiative 1992 is an mportant year in the recent history of modem 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 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 financingexperiments 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 arge about mediation and stimulating and furthering the practise and quality of mediation In the early stage of its fomation, NMI was inspired by the American Centerfor Public Resources and the British Centre for Dispute Resolution. The pioneers of Bruinsma F& Welbergen R Hoge Raad nm Oderen(tjeenk willink, Deventer 1988; 2nd edition 1999); Brenninkmeier A F M Burgerljk prpcesrecht als publiekrecht (Tjeenk Willink, Deventer 1993). In these publications the excesses of Dutch court proceedings werehighlighted. The findings are rather shocking Hoefnagels G P Handboek scheidingsbemiddeling(Tjeenk Willink, Deventer, 2000). 12. Jagtenberg r& De Roo A The New Mediation: Flower of the East n a Harvard Bouquet (200 1)Asia Pacifica Rewiew Vol 9 No 1, pp 63-82
MEDIATION IN THE PAST - PRESENT - FUTURE 3 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 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 ea rly 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 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
DE ROOJJAGTENBERG 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 NMI mainta ins a register of accredited NMI-mediators and liaises with oth institutions and govemment departments. To be registered as a NMI medator one must have attended (with success) one of the NMl-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 compaint procedure, which the NMI-medator has to comply with 13 Considering its activities, NMI can be regarded as 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 num ber 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 a verage one medator handles half a mediation annually! This(over)supply of mediators is not well balanced with the demand for mediation the frustration of dutch mediators Government interest The foundation of NMI was an impetus for the govemment, 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 pathom were laid down in its final report Conflictbemiddeling(Conflictmedation). 15 Under the auspices of the Platfom ADR two court annexed mediation pilot projects were undertaken. An important finding was that the referral to mediation by judges and legalaid 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. 7 For the time being, this letter is the basis for the intending involvement by the govemment in the development of ADR. It must be said, however, that the direction of this envisaged govemmental involvement is vague In the policy letter dejuridisering and juridisering are the central, opposing TheserulesareallpublishedonthebilingualNmi-wEbsite:http://wwy The total number of mediators has easily passed that ofjudges, being 1600 Platform ADR Conflictbemiddeling(1998). Kocken CL B& van Manen N F Weg van het Recht Paul Scholten Instituut Univers ty of Amsterdam August 1998 Ministry of Justice Meerwegennaarhetrecht Beleidsbrief ADR 2000-200
DE ROO/JAGTENBERG 4 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 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 representa tives 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 13. These rules are all published on the bilingual NMI-website: http://www.nmi-mediation.nl. 14. The total number of mediators has easily passed that of judges, being 1600. 15. Platform ADR Conflictbemiddeling (1998). 16. 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
MEDIATIONIN THE PAST-PRESENT-FUTURE themes. Unfortunately, there is no apt transation fully reflecting the Dutch meaning. In short, they encom pass how Dutch citizens think about, deal with and eventually make use of the aw. 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 govemment 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 govemment 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 modemisation. Modemisation of the judiciary has become a major target of the present cabinet. It focuses on improvement of the adm inistration of justice by inter alia reducing the length of court proceedings and mproving access to court. 8 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 Encoura ged Mediation)and Mediation Gefinancierde rechtsbi stand(Mediation and Legal Aid) he 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 Amhem. 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 00l the first interim report was published. 1 9 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 ervice during a court procedure. At the hearing, the judge handling the case may refer the parties to a medator. If such mediation appears unsuccessful, the court procedure will be resumed. The judge is not infomed 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 pocedure 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 Ministry of Justice Rechtspraak in de 2le een Conturenmota modemisering rechterlijke sty Justice Recht van spreken interdepartmental Beleidsonderzoek Bedrijfsvoering RedhtspraakJuly 1999 19. Landelijk project mediation naast rechtspraak Tussentiidse Rapportage(2001)
MEDIATION IN THE PAST - PRESENT - FUTURE 5 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 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 18. Ministry of Justice Rechtspraak in de 21e eeuw Contourennota modernisering rechterlijke organisatie December 1998; Ministry of Justice Recht van spreken Interdepartmentaal Beleidsonderzoek Bedrijfsvoering RechtspraakJuly 1999. 19. Landelijk project mediation naast rechtspraak Tussentijdse Rapportage (2001)
DE ROOJJAGTENBERG detem ined 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 procedure is initiated following mediation, this fee does not have b paid again. If one of the parties is not en legal aid, half of the costs of the mediator will be bome by that party In both these two projects, the parties are asked to participate on a voluntary basis.2I Apart from these ma jor projects, there are experiments with mediation n Professional publications Vith the rise and interest in modern med iation also the need for more information and exchange increased. In 1997 the Tijdschrift voor Mediation (Journal for Mediation) appeared as the first joumal purely focussing on mediation. An important purpose of this quarterly is to serve as a forum for mediators and all others who have an interest in the practice and academic study of mediation. There is a great demand for exchange of experiences with(other) mediation professionals. Consequently there is a strong input from the mediation-practitioner The Joumal for Medation has four categories of contributions. The first category encompasses in-depth contributions dealing with mediation from an analytical angle, followed by Mediation in de Praktik(Mediation in Practice). This category is the ultimate ga thering for the practising medator. Here the ins and outs of a mediation case are discussed. The principle learning by doing is the centre of attention in the category with the telling title valkuil(Pitfall). Here medator-mistakes are described and analysed. Each issue concludes with information on mediation workshops and recent developments. The number of ubscriptions of the journal is steadily growing. Its readers are legal professionals accountants, psychologists, architectsetc Another carrier of mediation information is the ADR Nieusbnief(Ad Newsletter), which is published eight times a year. Its main focus is to serve its reader with brief, up to date mediation information and is sent to all NMl-mediators 6 Mediation training and university education The(short) history of mediation teaching in the Netherlands largely runs parallel with the development of modern mediation itself and has become a booming usiness for private training institutions The first, full fledged training programmes took off in the early 1990s. It were private institutions that took the lead in compiling and offering specialist, mediation training schemes. Educational institutions, such as universities, would follow suit later. As a consequence of those private sector init atives, the early programmes were emphasis was and still is on impartingskills At present, there are 10 programmes, which have been certified by the NmI These costs do not cover all legal costs. One may wonder whether parties will tum downa suggestion by a judge to mediate
DE ROO/JAGTENBERG 6 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 procedure is initiated following mediation, this fee does not have to be paid again. If one of the parties is not entitled to legal aid, half of the costs of the mediator will be borne by that party. In both these two projects, the parties are asked to participate on a voluntary basis.21 Apart from these major projects, there are experiments with mediation in divorce and parental access disputes. 5 Professional publications With the rise and interest in modern mediation, also the need for more information and exchange increased. In 1997 the Tijdschrift voor Mediation (Journal for Mediation) appeared as the first journal purely focussing on mediation. An important purpose of this quarterly is to serve as a forum for mediators and all others who have an interest in the practice and academic study of mediation. There is a great demand for exchange of experiences with (other) mediation professionals. Consequently, there is a strong input from the mediation-practitioner. The Journal for Mediation has four categories of contributions. The first category encompasses in-depth contributions dealing with mediation from an analytical angle, followed by Mediation in de Praktijk (Mediation in Practice). This category is the ultimate gathering for the practising mediator. Here the ins and outs of a mediation case are discussed. The principle learning by doing is the centre of attention in the category with the telling title Valkuil (Pitfall). Here mediator-mistakes are described and analysed. Each issue concludes with information on mediation workshops and recent developments. The number of subscriptions of the journal is steadily growing. Its readers are legal professionals, accountants, psychologists, architects etc. Another carrier of mediation information is the ADR Nieuwsbrief (ADR Newsletter), which is published eight times a year. Its main focus is to serve its reader with brief, up to date mediation information and is sent to all NMI-mediators. 6 Mediation training and university education The (short) history of mediation teaching in the Netherlands largely runs parallel with the development of modern mediation itself and has become a booming business for private training institutions. The first, full fledged training programmes took off in the early 1990s. It were private institutions that took the lead in compiling and offering specialist, mediation training schemes. Educational institutions, such as universities, would follow suit later. As a consequence of those private sector initiatives, the early programmes were particularly designed for professionals such as lawyers and psychologists. The emphasis was and still is on imparting skills. At present, there are 10 programmes, which have been certified by the NMI. 20. These costs do not cover all legal costs. 21. One may wonder whether parties will turn down a suggestion by a judge to mediate
MEDIATIONIN THE PAST-PRESENT-FUTURE The conditions for NMi-certification however. are obscure. These 10 NMI certified programmes differ in length, costs, and contents, which makes the selection of the right programme by an interested applicant cumbersome. The average length is six days, while the costs may amount up to 3600 Euro. There is no hardcore contents, shared by all these schemes. This is not surprising. As yet, there are no rules or legislation lay ing down minimum requirements for the teaching of mediation. Basically, training institutions are free in selecting the topics to be taught. The majority, however, seems to pay attention to the Harvard style of negotation, generally considered to be a useful tool for the medator. This style of negotiation is oriented towards win-win solutions by cussing on mterests, instead of rights. This is what a medator is precisely supposed to do: directing the parties towards focussingon their interests Thus far, little thought seems to be given to legal aspects of the mediation practice. This may be regarded as an omission, certa nly now that mediation in many European countries will be practised within the presence of an established legal system. A clarification for this may partly lie in the back ground of the respective rainers: the majority is psychologist At universities, particularly at faculties of law, it were init ially individual staff members who undertook the teaching of mediation. In 1994, for the first time in the Netherlands an optional course (Altemative) Dispute Resolution: Theory and Practice was on offerat the Rotterdam law faculty The ultimate goal of this course is to give the participating students an overall perspective on the emergence and resolution of disputes and the role of aw there in In addition, some practical tra ining is provided through role-plays and other practical exercises, which are supervised by qualified mediators At present, most aw faculties pay attention to mediation and other modes of dispute resolution. However, the format of mediation teaching varies from separate courses to integral parts of existing courses such as civil procedure law The regulatory frameworkfor mediation In Dutch law, there are no specific statutory provisions perta ining to mediation, and 1995 NMI Mediation Rules (as amended in 2000)thus fill a gap, providing standards formediators, disputants, andjudges Three basic principles have been written into the NMI Mediation Rules 2. the mediator must be independent and im partial; and 3. confidentia lity and secrecy are to be observed during and after the mediation, by These three basic tenets, voluntariness, im partia lity and confidentility, can also be found in the 1980 UNCITRAL Model Rules on Conciliation, arguably the world s Fisher R& Ury WGetting to Yes(Houghton Mifflin, 1981)and later editions
MEDIATION IN THE PAST - PRESENT - FUTURE 7 The conditions for NMI-certification, however, are obscure. These 10 NMI certified programmes differ in length, costs, and contents, which makes the selection of the right programme by an interested applicant cumbersome. The average length is six days, while the costs may amount up to 3600 Euro. There is no hardcore contents, shared by all these schemes. This is not surprising. As yet, there are no rules or legislation laying down minimum requirements for the teaching of mediation. Basically, training institutions are free in selecting the topics to be taught. The majority, however, seems to pay attention to the Harvard style of negotiation, generally considered to be a useful tool for the mediator.22 This style of negotiation is oriented towards win-win solutions by focussing on interests, instead of rights. This is what a mediator is precisely supposed to do: directing the parties towards focussing on their interests. Thus far, little thought seems to be given to legal aspects of the mediation practice. This may be regarded as an omission, certainly now that mediation in many European countries will be practised within the presence of an established legal system. A clarification for this may partly lie in the background of the respective trainers: the majority is psychologist. At universities, particularly at faculties of law, it were initially individual staff members who undertook the teaching of mediation. In 1994, for the first time in the Netherlands an optional course (Alternative) Dispute Resolution: Theory and Practice was on offer at the Rotterdam law faculty. The ultimate goal of this course is to give the participating students an overall perspective on the emergence and resolution of disputes and the role of law there in. In addition, some practical training is provided through role-plays and other practical exercises, which are supervised by qualified mediators. At present, most law faculties pay attention to mediation and other modes of dispute resolution. However, the format of mediation teaching varies from separate courses to integral parts of existing courses such as civil procedure law. 7 The regulatory framework for mediation In Dutch law, there are no specific statutory provisions pertaining to mediation, and only a few court decisions on the subject have been published so far. Therefore, the 1995 NMI Mediation Rules (as amended in 2000) thus fill a gap, providing standards for mediators, disputants, and judges. Three basic principles have been written into the NMI Mediation Rules: 1. mediation is based on the continuing voluntary consent of all parties; 2. the mediator must be independent and impartial; and 3. confidentiality and secrecy are to be observed during and after the mediation, by all parties concerned. These three basic tenets, voluntariness, impartiality and confidentiality, can also be found in the 1980 UNCITRAL Model Rules on Conciliation, arguably the world s 22. Fisher R & Ury W Getting to Yes(Houghton Mifflin, 1981) and later editions
DE ROOJJAGTENBERG primary set of modem mediation rules. 23 onfidentia lity and secrecy are essential. A mediator will try to get negotations back on track again, by probing underlying interests, possibly during side meetings with each party, and creating an atmosphere where parties feel free to put their Interests on the table, accom panied by further proposals or offers. However, a party will only come forward this way if she cannot be penalised for her frankness and od will in the open courtroom later on, in case the mediation effort fails. Both the medator and the disputants will contracta lly bind themselves to this duty of confidentiality and secrecy, by signing an a greement to mediate, at the outset of the mediation. In the a greement to mediate, key provisions of the NMI Rules are reiterated and the Rules are declred to apply in their entirety to the mediation Independence and impartiality are secured through the selection procedure whereby both parties essentially have to agree on the person to be appo inted as meda tor, and through the NMI Rules of Professional Conduct, which oblige a medator to disclose any conflict of interest to the parties without delay These basic tenets of mediation are thus secured contractually only. In theory, if a dispute still ends in court, there is nothing to prevent a judge to hear a party or a medator about the mediation process. A medator, for instance, could not invoke statutory professional privilege. 24 Court decisions published so far, however, indicate that the Dutch judicary does respect the contractually secured rights and duties in a mediation 25 If a NMI mediation results in a settlement, that settlement will usually be casted the fomat of a vast stelling sovereenkomst(settlement contract), one of the named contracts enlisted in art. 7- 900 of the Civil Code. The terms of such a contract concluded following a mediation, fall outside the duty of secrecy. Such settlement contracts can be litigated in court against a defaulting party. However, the scope for judical review may be more restricted than in plain contracts, for instance where defects of consent were pleaded. In addition, there are circumstances where such settlement contracts will stand even in the face of inconsistency with mandator Statutory law, and even treaty law, may have relevance to mediation procedures in other ways. Devices emanating from the general law of obligations, such as contributory negligence, may be brought to bear where parties have unreasonably UNCITRAL Conciliation Rules, ARES/3552, 10 December 1980; reference i made to ticles 2.7.1 4 and 20 The profession of med iator is not protected by law in the first place Pres rb Amhem 4 February 2000, KG 200065, held that submission of a draft vaststellinngsonereenkomst(a settlement contract, not as yet signed )tb Court must be regarded as a violation of the duty of confidentiality ai down n the NMI Mediation Rules; Ktr Amsterdam 21 December 2000, NJkort2001/13, declared plantiff s claim nadmssable, as he had sued defendant without any prior reference to the mediation clase conduded withdefendant as part of the contract under review. Article 7900 and 7:902 BW. Reference i made to Hr 14 February 1992, NJ 1992/245, and HR 29 September 1995, Rvdw 1995/193
DE ROO/JAGTENBERG 8 primary set of modern mediation rules.23 Confidentiality and secrecy are essential. A mediator will try to get negotiations back on track again, by probing underlying interests, possibly during side meetings with each party, and creating an atmosphere where parties feel free to put their interests on the table, accompanied by further proposals or offers. However, a party will only come forward this way if she cannot be penalised for her frankness and good will in the open courtroom later on, in case the mediation effort fails. Both the mediator and the disputants will contractually bind themselves to this duty of confidentiality and secrecy, by signing an agreement to mediate, at the outset of the mediation. In the agreement to mediate, key provisions of the NMI Rules are reiterated and the Rules are declared to apply in their entirety to the mediation procedure. Independence and impartiality are secured through the selection procedure whereby both parties essentially have to agree on the person to be appointed as mediator, and through the NMI Rules of Professional Conduct, which oblige a mediator to disclose any conflict of interest to the parties without delay. These basic tenets of mediation are thus secured contractually only. In theory, if a dispute still ends in court, there is nothing to prevent a judge to hear a party or a mediator about the mediation process. A mediator, for instance, could not invoke statutory professional privilege. 24 Court decisions published so far, however, indicate that the Dutch judiciary does respect the contractually secured rights and duties in a mediation.25 If a NMI mediation results in a settlement, that settlement will usually be casted in the format of a vaststellingsovereenkomst (settlement contract), one of the named contracts enlisted in art. 7:900 of the Civil Code. The terms of such a contract, if concluded following a mediation, fall outside the duty of secrecy. Such settlement contracts can be litigated in court against a defaulting party. However, the scope for judicial review may be more restricted than in plain contracts, for instance where defects of consent were pleaded. In addition, there are circumstances where such settlement contracts will stand, even in the face of inconsistency with mandatory law.26 Statutory law, and even treaty law, may have relevance to mediation procedures in other ways. Devices emanating from the general law of obligations, such as contributory negligence, may be brought to bear where parties have unreasonably 23. UNCITRAL Conciliation Rules, A/RES/35/52, 10 December 1980; reference is made to articles 2, 7, 14 and 20. 24. The profession of mediator is not protected by law in the first place. 25. Pres Rb Arnhem 4 February 2000, KG 2000/65, held that submission of a draft vaststellingsovereenkomst (a settlement contract, not as yet signed) to Court must be regarded as a violation of the duty of confidentiality laid down in the NMI Mediation Rules; Ktr Amsterdam 21 December 2000, NJ kort 2001/13, declared plaintiff s claim inadmissable, as he had sued defendant without any prior reference to the mediation clause concluded with defendant as part of the contract under review. 26. Article 7:900 and 7:902 BW. Reference is made to HR 14 February 1992, NJ 1992/245, and HR 29 September 1995, RvdW 1995/193
MEDIATIONIN THE PAST- PRESENT-FUTURE refused to agree to mediation or early neutral assessment procedures. 27 In the procedural law ambit, the fundamental right of access to court, entrenched in both Article 17 of the Dutch Constitution and Article 6 of the European Convention on Human Rights, has relevance to both the entry and the exit side of mediation. The gist of the case bw created by the European Court of Human Rights in this the ADR process has been entered into voluntarily by the parties concemed, -p3 respect, can be summarized as follows. If there are no opportunities for effective udical review of the outcome of an ADR process, the Court will satisfy itself that A prima facie, one might think this requirement of voluntariness will have relevance to arbitrations, but not to mediations, as mediations merely result in settlement contracts. It rema ns to be seen however whether med iated settlement contracts lend themselves to efective judicial review. The duty of confidentiality dictates that material facts perta ning to the process of concluding such a contract will be exempted from review. In addition, such mediated settlement contracts may be incorporated arbitral a wards, which would make judicial review illusory as well. We subm it. therefore. that in view of these uncerta unties at the exit side of mediation, the entry into medition must indeed satisfy the requirement of At this point ler interesting comes in focuss. Does the apply to the very decision of parties to refer their case to a mediator, or is the meaning f voluntariness more restricted, and does it apply only to the freedom of parties to Netherlands. In the spring of 2001, Lord Woolf was inv ited over to Am sterdam,to discuss his arguments in favour of a restricted interpretation of voluntariness. In Lord Woolf s point of view, mandatory referral of suitable cases to mediation is ustified to alleviate the court system. As a consequence, courts will be able to handle the remaning cases more swiftly. Lord Woolf concludes therefore that the mandatory strategy is exactly in support of the right of access to court. 29 This paradox will be rev isited towards the end of this nationalreport The practice of mediation in family, labour, and administrative disput Through regular surveys, NMI seeks to ascertain the use and success of mediation in a large number of practice areas. Although the outcomes of these surveysare not fully representative the surveys are merely based on mediations registered with NMI-they certa inly provide an impression of actual Dutch mediation practice According to the 2001 nmi da ta, three areas stand out in terms of caseload family disputes(618 cases registered since 1999, being 44%of all registered cases), la bour disputes(345 cases, being 25 %of all cases)and commercial disputes (184 In labour disputes, see for instance Ktr Utrecht 2-20-1998, JAR 1998, 219, and Ktr Eindhoven 7-1-2000,JAR2000,51 28. De Weer, Deci ion of 27 February 1980, Series A, No 35. Aso Obenmmeier, Decis on of 28 June 1990. Series A No 179 29. Jagtenberg R, Cry Wo[]lf(2001)Tijdschrift voor Mediation Vol 2
MEDIATION IN THE PAST - PRESENT - FUTURE 9 refused to agree to mediation or early neutral assessment procedures.27 In the procedural law ambit, the fundamental right of access to court, entrenched in both Article 17 of the Dutch Constitution and Article 6 of the European Convention on Human Rights, has relevance to both the entry and the exit side of mediation. The gist of the case law created by the European Court of Human Rights in this respect, can be summarized as follows. If there are no opportunities for effective judicial review of the outcome of an ADR process, the Court will satisfy itself that the ADR process has been entered into voluntarily by the parties concerned.28 A prima facie, one might think this requirement of voluntariness will have relevance to arbitrations, but not to mediations, as mediations merely result in settlement contracts. It remains to be seen, however, whether mediated settlement contracts lend themselves to effective judicial review. The duty of confidentiality dictates that material facts pertaining to the process of concluding such a contract will be exempted from review. In addition, such mediated settlement contracts may be incorporated in arbitral awards, which would make judicial review illusory as well. We submit, therefore, that in view of these uncertainties at the exit side of mediation, the entry into mediation must indeed satisfy the requirement of voluntariness. At this point, another interesting comes in focuss. Does the test of voluntariness apply to the very decision of parties to refer their case to a mediator, or is the meaning of voluntariness more restricted, and does it apply only to the freedom of parties to accept or reject a settlement proposal? Currently, opinions are devided in the Netherlands. In the spring of 2001, Lord Woolf was invited over to Amsterdam, to discuss his arguments in favour of a restricted interpretation of voluntariness. In Lord Woolf s point of view, mandatory referral of suitable cases to mediation is justified to alleviate the court system. As a consequence, courts will be able to handle the remaining cases more swiftly. Lord Woolf concludes therefore that the mandatory strategy is exactly in support of the right of access to court.29 This paradox will be revisited towards the end of this national report. 8 The practice of mediation in family, labour, and administrative disputes Through regular surveys, NMI seeks to ascertain the use and success of mediation in a large number of practice areas. Although the outcomes of these surveys are not fully representative the surveys are merely based on mediations registered with NMI - they certainly provide an impression of actual Dutch mediation practice. According to the 2001 NMI data, three areas stand out in terms of caseload: family disputes (618 cases registered since 1999, being 44 % of all registered cases), labour disputes (345 cases, being 25 % of all cases) and commercial disputes (184 27. In labour dispues, see for instance Ktr Utrecht 2-20-1998, JAR 1998, 219, and Ktr Eindhoven 7-1-2000, JAR 2000, 51. 28. De Weer, Decision of 27 February 1980, Series A, No. 35. Also Obermeier, Decision of 28 June 1990, Series A, No. 179. 29. Jagtenberg R, Cry Wo[o]lf (2001) Tijdschrift voor Mediation Vol. 2
DE ROOJJAGTENBERG cases, 13 of all cases).30 Hereafter, the following three areas are discussed family disputes and abour disputes the two largest practice areas and adm inistrative law disputes, as a smaller practice area(3 1 cases since 1999, being 2%of all cases) A further reason for this selection lies im the overwhelmingly private law character of family disputes, the largely private, but partly public law character of la bour disputes, and the essentially public law character of administrative law disputes 8.1 Familydisputes 8.1.1 Nature and legalframework Most disputes in this area are centered around divorce. These disputes tend to have a tremendous impact on the personal lives of the spouses, and, particularly, their children. Deep emotions, workable arrangements with regard to the children, the family house and other financal matters such as alimony, all need to be addressed in divorce cases. Where historically, family mediation was aimed at saving the marriage where possible, modern family mediation is primarily concerned with the onsequences of divorce. The outlook is no longer paterna listic. The purpose is to assist parties in terminating their relationship in an acceptable way, without unnecessary damage and bittemess, thereby facilitating the negotiation of necessary future arrangements Under Dutch law, there is only one ground for divorce: the pemanent disruption of mariage, a ground that will be accepted by the court without evidence Much more complicated to work out are the legal consequences of a divorce: issues such as the parental authority over the minor children, the arrangements required to Implement the reciprocal right of access for the child and the non-custodal parent and the amount of alimony that would be reasonable in the light of the ex-spouses financal capacity and need respectively. Dutch law allows for considerable judicial discretion here, and for party autonomy in the fom of joint requests made by the (ex-)spouses. Such joint requests are increasingly embedded in comprehensive agreements between the(ex-)spouses, termed scheidingscomenanten Where such agreements merely concem alimony, the parties may even exclude judicial adaptationof the agreement. 31 The legal framework therefore facilitates negotiated solutions, and hence mediation. Since the 1970s, the use of moden mediation in this area steadily increased, and in 1989, divorce lawyers esta blished their own professional mediators ssociation. The underly ing idea here was that both parties might jointly engage just scheidingsconenant. This approach proved very(cost-Deffective, as it prevented the dispute from escalating, and parties running back and forth from and to the court. I9 The current trend is to move away even further from the judical process.In 96, a Commission on the Reform of Divorce procedure, chaired by Professor de NMI Informatie(2001) Tijdschriff voor Mediation Vol 3 Article 1: 158 and 159 Bw
DE ROO/JAGTENBERG 10 cases, 13 % of all cases).30 Hereafter, the following three areas are discussed: family disputes and labour disputes the two largest practice areas and administrative law disputes, as a smaller practice area (31 cases since 1999, being 2 % of all cases). A further reason for this selection lies in the overwhelmingly private law character of family disputes, the largely private, but partly public law character of labour disputes, and the essentially public law character of administrative law disputes. 8.1 Family disputes 8.1.1 Nature and legal framework Most disputes in this area are centered around divorce. These disputes tend to have a tremendous impact on the personal lives of the spouses, and, particularly, their children. Deep emotions, workable arrangements with regard to the children, the family house and other financial matters such as alimony, all need to be addressed in divorce cases. Where historically, family mediation was aimed at saving the marriage where possible, modern family mediation is primarily concerned with the consequences of divorce. The outlook is no longer paternalistic. The purpose is to assist parties in terminating their relationship in an acceptable way, without unnecessary damage and bitterness, thereby facilitating the negotiation of necessary, future arrangements. Under Dutch law, there is only one ground for divorce: the permanent disruption of marriage, a ground that will be accepted by the court without evidence. Much more complicated to work out are the legal consequences of a divorce: issues such as the parental authority over the minor children, the arrangements required to implement the reciprocal right of access for the child and the non-custodial parent, and the amount of alimony that would be reasonable in the light of the ex-spouses financial capacity and need respectively. Dutch law allows for considerable judicial discretion here, and for party autonomy in the form of joint requests made by the (ex-)spouses. Such joint requests are increasingly embedded in comprehensive agreements between the (ex-)spouses, termed scheidingsconvenanten. Where such agreements merely concern alimony, the parties may even exclude judicial adaptation of the agreement.31 The legal framework therefore facilitates negotiated solutions, and hence mediation. Since the 1970s, the use of modern mediation in this area steadily increased, and in 1989, divorce lawyers established their own professional mediators association. The underlying idea here was that both parties might jointly engage just one lawyer, in the capacity of a mediator assisting them in working out a scheidingsconvenant. This approach proved very (cost-)effective, as it prevented the dispute from escalating, and parties running back and forth from and to the court. The current trend is to move away even further from the judicial process. In 1996, a Commission on the Reform of Divorce procedure, chaired by Professor de 30. NMI Informatie (2001) Tijdschrift voor Mediation Vol. 3. 31. Article 1:158 and 159 BW
