Results project in brief: the Dutch experience
Results project survey in brief (Netherlands)
Methods of referral
As stated above, referral can take place orally by the judge, written and on the initiative of parties themselves. All these forms of referral can take place at any time in the proceedings. Nor are these methods mutually exclusive. Even after a negative response to a previous written invitation the parties may still accept an oral offer of referral.
Referral by means of a written invitation at an early stage of the proceedings (before the statement of defence (verweerschrift) in administrative proceedings and immediately after the statement of defence (conclusie van antwoord) in civil proceedings) is more efficient than referral at the hearing. This is because both the parties and the court have incurred fewer costs at that stage. In addition, the dispute is still reasonably young and the positions of the parties are therefore less entrenched.
In practice, a written invitation has a higher success rate than a referral at the hearing. This is because the parties who respond to a written proposal opt voluntarily for mediation entirely of their own volition (in particular after completion of the self-assessment test) and are more committed. However a referral at a hearing also has a good success rate. Sometimes the hearing actually provides the parties with an opportunity to investigate whether mediation could in their case result in an effective tailor-made solution. The mediation proposal of the court helps the parties in deciding. In some cases the parties must still undergo the verelendung' (impoverishment) caused by litigation, whereas in other cases the most effect course of action is to send a letter before the statement of defence. It would also be worthwhile gaining experience of written referral in civil proceedings before the statement of defence. For an effective response it is necessary that a written invitation should be both : case-oriented and person-oriented.
Parties who receive a standard written mediation proposal are less likely to feel that it applies to them. A standard letter of invitation produces a response rate of less than 1%. A specific case-related invitation with a self-assessment test (person-oriented, with questions about personal motives) has the best chance of success (acceptance rates of between 10% and 40%). Examples of specific invitations can be found in the model letters annexe to the handbooks for court management boards, division presidents and mediation officers. All these letters have proved their worth in practice !
In civil proceedings a mediation proposal can also be made in, for example, the interim judgment given following a personal appearance of the parties after submission of the statement of defence. As this will be directly related to the particular case, it may be even more effective for the parties. A disadvantage is that it is very dependent on the judge in the case. An example of a passage in an interim judgment can be found in the model letters annexe to the handbooks for court management boards, division presidents and mediation officers. In some courts the judge is not involved in drafting an interim judgment after a personal appearance. In such a case, it will have to be decided by the division of the court concerned whether the invitation will be sent by letter or contained in the judgment, and who should decide this.
Timing of the referral
Written referral at an early stage of the proceedings (before the statement of defence (verweerschrift) in administrative proceeedings and immediately after the statement of defence (conclusie van antwoord) in civil proceedings) has proved more efficient than referral at the hearing. This is because the dispute is still reasonably young and the positions of the parties are therefore less entrenched and also both the parties and the court have incurred fewer costs at that stage.
Chance of success
Written referral has a rather higher success rate than referral at a hearing. This is because the parties who respond to a written proposal opt voluntarily for mediation entirely of their own volition (in particular after completion of the self-assessment test) and are more committed. However a referral at a hearing also has a good success rate. Sometimes the hearing actually provides the parties with an opportunity to investigate whether mediation could in their case result in an effective tailor-made solution. The court's mediation proposal helps the parties to decide.
In practice, a correct combination of methods and timing has been found to produce an adequate (i.e. effective and efficient) use of mediation. In some cases the parties must still undergo the verelendung' (impoverishment) caused by litigation, whereas in other cases the most effect course of action is to send a letter before the statement of defence. Information about referrals and best practices is collected by the National bureau for Court-connected Mediation and channelled back to all courts so that they can perfect their referral policy.
Experiences in different types of cases
The experience in tax cases is comparable to that in administrative cases. In family law the number of contact hours is highly dependent on the number of elements that must be resolved. If the mediation must cover all conceivable elements such as the custody of children, access arrangements for the parent not awarded custody, parental plan, maintenance for children and partner, division of assets and pension sharing, it would not be unusual for it to take ten or more contact hours spread over four or five meetings. As the degree of escalation is generally higher in divorce proceedings than in other types of case, mediation also takes longer.
Source
The results of the survey, based on almost 1,000 cases, can be found in the WODC final report (L. Combrink-Kuiters, E. Niemeijer and M. Ter Voert, Ruimte voor mediation ; Evaluatie van projecten bij de rechterlijke macht en de gefinancierde rechtsbijstand (Space for mediation ; Evaluation of projects undertaken by the judiciary and the legal aid system), Ministry of Justice, WODC, The Hague 2003). It is also available at our site: www.mediationnaastrechtspraak.nl
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