Since the introduction of the 2008 EU directives on trade dispute mediation, every EU member state has tried to find ways to implement these directives into their own societies. Where Italy has taken the lead, many other countries are still looking for their interpretation. The Netherlands is no exception. Though supposedly on the forefront of the development of ADR within Europe, Holland has not yet done justice to all mediation could offer. There seem to be three quite crucial difficulties with implementing the EU directives into national laws. I’ll explain and analyze them below.
Quality control, Confidentiality and Right to Silence
The Dutch law provides a right to silence privilege to certain professions. Lawyers and doctors are the most commonly known subjects to this law. Due to strict confidentiality regulations in their job descriptions, they can appeal to the right to silence if they were ever to be ordered to testify in court on a case of one of their patients or clients. Virtually every other national judicial system has similar laws to protect clients’ confidential information from the public, so this is nothing new or specifically interesting.
However, for mediation to be successful, confidentiality is absolutely crucial. In fact, one of the major attractions to mediation is that the process is completely confidential. Without this confidentiality provision, parties will be a lot less likely to enter into mediation and share their underlying interests with the mediator. These underlying interests are all too often what fuels the conflict and without an understanding of them it becomes quite difficult for a mediator to facilitate a mutually satisfying settlement. Confidentiality therefore, is directly related to the quality and success of a mediation session. In order to establish confidentiality, mediators should enjoy the same right to silence privileges as doctors and lawyers. And herein lies the difficulty.
The EU directives define a mediator as “any third person who is asked to conduct a mediation in an effective, impartial and competent way, regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third person has been appointed or requested to conduct the mediation.”[1] In the Netherlands, anyone can call himself a mediator, even a neighbor helping out two other neighbors can print “mediator” on his business card. The Dutch parliament is thus concerned about extending the right to silence law to mediators because it would open up this privilege to an undefined and potentially unqualified number of people.[2] There is no national enforced exam prospective mediators have to pass or requirements they have to meet in order to be qualified as a mediator. In other words, the state has no “quality control” over this profession.
Areas of Law
Another difficulty the Dutch legislators are facing is that the EU directives only impact international (within European Union Member states) cases. They were written to promote and improve mediation across the European borders in order to facilitate an easier way to solve trade disputes. Clearly the directives have had a ripple effect throughout Europe where Member States are trying to apply the directives to their own national disputes and implement them in their judicial systems as well.
Different Dutch political parties have raised the question whether implementation of the EU directives on national level could then not also include mediation in the field of administrative law and criminal law. Scholars have raised the point that administrative law and criminal law are very different from trade and civil law in that their purpose is not to reach a solution between two essentially equal parties.[3] The Netherlands’ long Civil law history and traditions have designed the areas of criminal and administrative law as a method for the government to ask the judicial branch for certain sanctions on law-breaking individuals. The purpose for these sanctions or punishments includes sending a message to the public that the government will not tolerate criminal behavior. If criminal cases become subject to ADR processes, you essentially remove the case from the public into the private confidential spheres, thus undermining the state’s purpose for sanctions and punishment.[4] The Dutch government is reluctant to agree to official ADR procedures in criminal and administrative law exactly because they do not want these cases to disappear from the public sphere.
Statute of Limitations
Article 8 of the EU directives state that “Member States shall ensure that parties who choose mediation in an attempt to settle a dispute are not subsequently prevented from initiating judicial proceedings or arbitration in relation to that dispute by the expiry of limitation or prescription periods during the mediation process.”[5] The difficulty is that the Dutch peremptory time limits are not the same as either the “limitations or prescription periods” the EU directives describes.[6] There are two different types of limitations within the Dutch law that both need to be cleared up in order to have meaning within the EU directives framework. In essence, the process of mediation needs to be able to interrupt the statute of limitations because otherwise parties will be reluctant to enter into mediation. Since the government is trying to promote the use of mediation, it is important that the start of a mediation process can interrupt the statute of limitations. Government is still debating on how to deal with this problem. When the statute of limitations has already run out before the start of the mediation, any settlement resulting from this mediation cannot be legally binding.[7]
Splitting Causes of Action
For all the difficulties with implementing the EU directives in Dutch national law there is another issue that affects all areas. This is the issue with separating causes of action within a claim. Settlements cannot be legally binding if there are issues decided among the parties which they do not have decision power over. Famous examples are child custody issues, parties can create a stipulated judgment but a judge does still have to hear the issue in court. This means that within a divorce mediation, a settlement can be legally binding on certain issues but not on others. This affects the right to silence for the mediator as the mediator only enjoys this right on issues on which the parties have decision power. A judge could still order the mediator to testify on the child custody issues in court but not on whether or not the husband was unfaithful. The statute of limitations however, cannot be split between different causes of actions within a case. The case as a whole has a time frame.
The Mediated Agreement
Interestingly enough, there are hardly any issues with enforcing a mediated settlement. Usually a settlement is written up as an agreement to end their current dispute and/or prevent similar disputes in the future. In Dutch this is called a “vaststellingsovereenkomst” which simply translates to “agreement” in English. This agreement, if it complies with certain requirements stated in the civil code, is legally enforceable.[8]
Another way to formalize a settlement is to get it notarized. However the notary is required to review the content of the agreement. This could possibly result in the denial to notarize the settlement or a requirement make changes, which could subsequently mean another mediation session has to take place.[9] If parliament can establish quality control for mediators, it will also explicitly state the legal enforceability of mediated agreements in the laws and statutes guiding the process.[10]
Conclusion
There is a lot of potential for growth in the mediation profession in the Netherlands. Though the legalistic issues need attention from the government, the real obstacle to growth is the public opinion of ADR and mediation. 40% of the population has never heard of mediation, 17% is familiar with ADR processes but only 1.4% has ever used mediation.[11] The legal community remains unconvinced on the benefits of ADR and is especially concerned about the confidentiality and the right to silence issues. And of course, they are reluctant to make way for a profession that could potentially take away some of their business.[12]
But, as always, Europe will catch up to America sooner or later. The implementation of the EU directives into national laws is a step in the right direction.
Bibliography
De Rechtspraak. Hoge Raad der Nederlanden. Jaarverslag 2010. Den Haag, 2010.
European Parliament and European Council. European Union. Official Journal of the European Union. DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil and commercial matter. Strasbourg, 2008.
Gathier, E.R.. "Aan de Leden van de Eerste Kamercommissie voor Veiligheid en Justitie." Ad hoc Werkgroep Mediationrichtlijn. Rotterdam, 09/08/2011.
Kwakman, N.J.M. "ADR in het strafrecht: de derde in een verticale rechtsstrijd tussen de bestraffende overheid en de verdachte." De syllabus van het themavak Geschilbeslechting (RGM SR 01006). 2006.
Lycaeus Legal Dictionary, http://www.juridischwoordenboek.nl/.
Opstelten, Ivo. Eerste Kamer der Staten-Generaal. Ministry of Justice. Memorie van Antwoord: Adaptation of Book 3 of the Civil Code and the Code of Civil Procedure to the Directive on certain aspects of mediation in civil and commercial cases. Den Haag, 12/27/2011.
van Velthoven, B.C.J. "ADR in de geschilbeslechtingsdelta." Elsa Leiden Magazine: Leiden University. 5.3. 2005.
Vogels, R.J.M., and P.Th. van der Zeijden. "De Stand van Mediation in Nederland." Stratus. Zoetermeer, 2010.
Wennekes, A.G. “Mediation: opkomende geschiloplossing in polderland.” Vennootschap & Onderneming. 12. (2011)
[1] European Parliament and European Council. European Union. Official Journal of the European Union. DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil and commercial matter. Strasbourg, 2008.
[2] Opstelten, Ivo. Eerste Kamer der Staten-Generaal. Ministry of Justice. Memorie van Antwoord: Adaptation of Book 3 of the Civil Code and the Code of Civil Procedure to the Directive on certain aspects of mediation in civil and commercial cases. Den Haag, 12/27/2011.
[3] Kwakman, N.J.M. "ADR in het strafrecht: de derde in een verticale rechtsstrijd tussen de bestraffende overheid en de verdachte." De syllabus van het themavak Geschilbeslechting (RGM SR 01006). 2006.
[4] Kwakman, N.J.M. "ADR in het strafrecht: de derde in een verticale rechtsstrijd tussen de bestraffende overheid en de verdachte." De syllabus van het themavak Geschilbeslechting (RGM SR 01006). 2006.
[5] European Parliament and European Council. European Union. Official Journal of the European Union. DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil and commercial matter. Strasbourg, 2008.
[6] Opstelten, Ivo. Eerste Kamer der Staten-Generaal. Ministry of Justice. Memorie van Antwoord: Adaptation of Book 3 of the Civil Code and the Code of Civil Procedure to the Directive on certain aspects of mediation in civil and commercial cases. Den Haag, 12/27/2011.
[7] Opstelten, Ivo. Eerste Kamer der Staten-Generaal. Ministry of Justice. Memorie van Antwoord: Adaptation of Book 3 of the Civil Code and the Code of Civil Procedure to the Directive on certain aspects of mediation in civil and commercial cases. Den Haag, 12/27/2011
[8] Wennekes, A.G. “Mediation: opkomende geschiloplossing in polderland.” Vennootschap & Onderneming. 12. (2011): 233.
20 Vogels, R.J.M., and P.Th. van der Zeijden. "De Stand van Mediation in Nederland." Stratus. (2010): 3-45.
21 van Velthoven, B.C.J. "ADR in de geschilbeslechtingsdelta." Elsa Leiden Magazine: Leiden University. 5.3 (2005): 30-36.
[10] Wennekes, A.G. “Mediation: opkomende geschiloplossing in polderland.” Vennootschap & Onderneming. 12. (2011): 233.