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 1995/193DE 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