A structural system of referral
Partly on the strength of the results of the National court-connected Mediation Project, the government decided in January 2005 to introduce a permanent system of referral to mediation in all courts in the Netherlands. The implementation of this system of referral to mediation has started in April 2005 and will be finished at the beginning of 2007. The function of the National bureau for court-connected Mediation is to support and guide the courts in implementing and executing the referral system, for example by providing know-how and advisers, helping with quality assurance and control of the referral procedure and mediators, and arranging training courses, including referral courses. The following diagram shows the procedure for referral to mediation in specific cases :
Referral -> Acceptance of mediation -> Selection of mediator -> Making a first appointment -> Mediation -> Administrative and financial completion
The roles of the different participants in the referral and mediation process
The role of the judge Referral to mediation is or will become an option available to all courts in the Netherlands. This means that the judge can bring the mediation option to the attention of the parties orally during the hearing or can invite them in writing before a hearing to consider mediation in their case. Referral to mediation is in keeping with the efforts of the courts to deploy mediation, as an alternative to negotiation and litigation, as a third form of effective dispute resolution. In the referral procedure the judge plays a crucial role, since the parties decide in response to the judge's proposal whether or not they will opt for mediation. It is up to the judge to gauge in which cases mediation could be a good choice for the parties. In addition, the judge gives the parties the correct information so that they can make an informed decision on how their case will be disposed of.
The mediation officer
Each court has one or more mediation officers. The mediation officer acts as adviser, fixer and general fount of knowledge for all internal and external parties involved in mediation. In addition, he or she plays an important role in monitoring the quality of mediation. The mediation officer is therefore the liaison officer for the judge in referring cases. The mediation officer also liaises with the mediators. He or she holds a meeting at least twice a year with the mediators who conduct mediations for the relevant court. The aim of these meetings is not only to coordinate the procedures and identify and resolve problems but also to arrange for the transfer of knowledge. The duties of a mediation officer in referrals can therefore be summarised as follows : providing information to those concerned, submitting a list of mediators from which the parties may choose, arranging the first appointment, monitoring the progress of the mediation and ensuring that the financial and administrative aspects are arranged.
The role of the mediator
The mediator should possess an objectively demonstrable adequate knowledge of the legal aspects of mediation and have an understanding of when it is necessary to involve an expert. In addition, the mediator should have objectively demonstrable advanced skills in dealing with parties who refuse to budge or who escalate an issue, in reframing legal positions and in monitoring inequalities between the parties. He should be able, for example, to conduct and supervise negotiations and make progress in disputes that have become seemingly bogged down. The mediators with whom parties are brought into contact through the courts fulfil strict quality criteria.
The parties may also choose a mediator from a list supplied to them by the mediation officer. This list contains not only the names and contact data of the mediators in the court district concerned but also, for example, their hourly rate, qualifications, experience, affinities, professional background, age and sex.
The role of lawyers
As referral to mediation takes place during court proceedings the parties have often already appointed a lawyer to represent them. As a result, lawyers frequently play a role in mediation. Sometimes their role is fairly prominent and sometimes less so. If the parties are able to express and represent their own interests, it is not necessary for lawyers to be present at the mediation meetings. However, parties may prefer them to be present. Whether this actually happens is to some extent a financial issue. If a lawyer is present the client must pay the fee of both the mediator and his own lawyer. It is also to some extent dependent on what the other party does. If one party has legal representation in the mediation and the other does not, this almost always creates an imbalance. This is why it is best that either both parties are legally represented or that neither has legal representation. When the first appointment is made each party is informed what the other party has decided. A situation may therefore arise in which one party is legally represented and the other not. It is up to the mediator to raise this issue for discussion and assess whether this is acceptable to both parties.
Whether or not lawyers are present, it is important for the mediator to involve them as far as possible as a coach in the mediation process. This is easiest if they are present, but even if they are not the mediator is well advised to recommend to the parties that they keep their lawyers informed. A lawyer can, for example, help his or her client in preparing for a subsequent meeting by examining the pros and cons of possible solutions. At the end of the mediation the lawyers can play a role in drawing up and approving the settlement agreement. What must in any event be prevented is a situation in which a lawyer is suddenly confronted at the end of the mediation by a settlement agreement that is entirely at odds with what he or she considers to the best solution to the dispute. This could prompt the lawyer to encourage his or her client to take the dispute back to the courts for resolution.
Enforcement of a settlement agreement
It is a good thing if parties can resolve their dispute through mediation. The agreements made by them are recorded in the settlement agreement. Usually this ends the matter : in 88% of cases the agreements are fully performed within a short space of time. Occasionally, however the agreements are not performed and a new dispute arises. A settlement agreement cannot be automatically enforced. Although the agreements are valid, performance of the agreements cannot be compelled if one of the parties does not cooperate. In order to execute an agreement through a bailiff without the cooperation of the other party a judgment, official record or notarial instrument is necessary. If the parties are not engaged in proceedings before the courts, they can request a notary to draw up a notarial instrument.
Quality criteria, participation conditions and training of mediators
The experiences within the national projects Court-connected mediation' and Mediation and other legal assistance' prompted the drawing up of quality and participation criteria. To achieve an acceptable number of referrals it is essential that the referrers should have confidence in the quality of the mediators. This quality is determined in practice by the success rate of the mediations and the satisfaction of the parties. As the degree of escalation is generally higher in the case of mediations during legal proceedings, this requires a more than average degree of skill on the part of the mediators, for example in finding a way forward in seemingly intractable disputes and dealing with inequalities between parties.
Mediators who wish to be eligible to take part in the referral system have to fulfil quality and participation criteria. Only NMI-Certified Mediators - i.e. mediators who have the DNV Mediator Certificate and are registered with the NMI - are eligible for participation in the referral system. The mediators taking part have differing backgrounds and range from lawyers to psychologists. They are classified in the register according to the subjects with which they have an affinity. The Netherlands Mediation Institute (NMI) manages, among other things, a register of accredited mediators. Those who qualify for entry in this register must have undergone mediation training or taken a mediation course at an institute officially recognised by the NMI and have passed a theoretical test. The mediators entered in the register have an exclusive right to the use of the title NMI Mediator® and, under the rules, those who are certified have an exclusive right to the use of the title NMI Certified Mediator®. For the time being, only those who have taken a course at a training or educational institution recognised by the NMI are entitled to register with the NMI. One of the main functions of the NMI is to promote the quality of mediation in the Netherlands.
