1. Legal Frame of 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.
The National Mediation Institute (NMI) has adopted its mediation rules (NMI Mediation Rules, adopted in 1995, amended in 2000). These rules provide for the basic principles of mediation and, in the absence of legislative framework, set 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.
A project of a legislative act on mediation implementing the requirements of the EU Mediation Directive is currently in the process of preparation.
2. Court Referral to Mediation
During the period 1999 – 2002 pilot mediation schemes have been introduced in two district courts. In 2005 a nation-wide court referral system for mediation was created. Despite the fact that these schemes operate on the principle of self regulation with minimum influence by the state, temporary financial contribution to mediations has been provided, as well as legal aid for the parties.
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 Court Encouraged 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.
Project Mediation in de Gefinancierde Rechtsbijstand (Mediation within the Legal Aid Scheme) started in May 2001. The main goal of this project is to resolve disputes by mediation, before a court procedure is initiated. A major requirement in Mediation within the Legal Aid Scheme is that at least one of the parties is entitled to legal aid. This is 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. 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.
3. Confidentiality of Mediation Proceedings
As there is neither statutory provision for the confidentiality of the mediation, nor forthe privilege of a mediator not to be compelled to testify on matters learnt during mediation, the obligation of confidentiality should be stipulated in a contract between the mediator and the parties, or as a confidentiality clause of the mediation agreement.
According to a judgment by the first instance court in Utrecht, 2 February 2005, LJN: AS5144: A confidentiality clause must be considered to be an agreement of documentary evidence in the sense of art. 153 Rv, which means that a judge in principal may not hear witnesses with regard to any information considered to be confidential in accordance with the confidentiality clause. However, art. 21 Rv contains the obligation for the parties to be truthful and exhaustive about all facts that might be relevant to a judgment. Only in exceptional circumstances will a judge order a conciliating party to disclose confidential information. This may only be the case when the need for truth prevails over the prejudice that might be suffered by a personal disclosure. Furthermore, it is imaginable in some cases that a mediator has a statutory duty to testify. This might be the case when a third party who is not bound to the confidentiality clause (art. 191 Rv) summons the mediator as a witness, or when the mediator is summoned to testify in a criminal case (art. 213 Sv) Unlike some professions, a mediator does not have the right of non-disclosure or legal privilege in such case.
4. Enforceability of Mediation Agreements
There are no special rules with regard to the mediation agreements.
According to article 87 Rv, parties may request the judge to order their appearance in a court session in order to come to a settlement. If a settlement is reached and upon the request of a party, an official report containing the parties’ commitments under the settlement may be drafted. Such a report is to be considered an enforceable award (art. 87 subsection 3).
It is also possible to record a settlement agreement by means of an arbitral award (art. 1069 Rv).
Agreements can also be entered as deeds, a notarial deed in which the settlement agreement is incorporated is enforceable. [Handboek Mediation 2003, p. 169]
5. The Impact of Mediation on Statutes of Limitation
There are no relevant provisions of law; hence mediation proceedings have no effect on the limitation and prescription periods.
6. Accreditation Requirements for Mediators
There are no statutory requirements.
The Nederlands Mediation Instituut ( 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. Considering its activities, NMI can be regarded as an umbrella organization.
The following statistical data has been reported, based on the information from the Legal Aid Board and the Council for the Judiciary:
Referral by the judge – 4183 cases for 2009, 4500 – for 2010;
Referral by the legal service counter- 2198 cases for 2009, 2500 – for 2010;
Legal aid in mediation cases- 6798 for 2009, 6500 – for 2010.
Mediation is appropriate when the parties need a decision and are willing to
Voluntary recourse, ability to take decisions (autonomy)
-Participation of a party in mediation is not forced (by threats or in any other way) by the other party or any third party;
General rule: Where parties are not ready to search for a solution, where they do not see the necessity to search for a solution or where at least one of the parties insist to resolve their conflict by asserting the position solely. The cases listed below could be seen as unsuitable only upon certain conditions and it has to be taken into account that in many of these cases the alleged obstacle may be surmounted in the course of mediation.
Information for mediators or mediation providers is available online, and often can be found in the chambers of commerce, embassies, or associations of mediators in the respective country. Usually this type of information is available on the Internet.
Useful criteria for choosing a mediator would be: