Update legislative proposal to enhance mediation in the Netherlands

On 13 July 2016 the Dutch Minister of Security and Justice has published a legislative proposal to enhance mediation in the Netherlands (Wetsvoorstel bevordering mediation). An overview of the most important aspects.

Purpose

The purpose of this legislative proposal is to stimulate mediation as a form of alternative dispute resolution. The legislative proposal strives to realise this by creating quality assurances and by putting up an obstacle against access to court.

Quality assurance

The legislative proposal provides for a register for so-called chartered mediators (beëdigd mediators) that serves as a quality assurance. The register can only be entered by mediators who comply with certain educational and experience levels. Furthermore there will be a disciplinary action body, the so‑called Raad voor de tuchtrechtspraak beëdigd mediators. This action body can impose measures on chartered mediators that do not abide by the rules. As the most far-reaching measure chartered mediators can be removed from the register.

The legislative proposal imposes various obligations on the chartered mediator to enhance the quality of the mediation process. There is a duty of confidentiality for the mediator, the mediator has to facilitate a fair mediation process and has to enable parties to seek expert advice where desired.

Furthermore two important aspects of mediation will be laid down in the law, the mediation agreement and the confidentiality of the mediation process. The fact that parties are obliged to enter into a written agreement will make them more aware of the agreed terms and conditions. The confidentiality stimulates parties to speak up freely during the mediation process. There is no need to fear that the other party will use information that was shared during the mediation against them in court proceedings that might follow after the (failed) mediation process.

Mediation prior to court proceedings?

Opposed to previous legislative proposals, there is no mandatory mediation prior to court proceedings. However, while filing a court proceedings parties will be obliged to inform the court whether or not parties have tried to solve their dispute by using mediation. If they haven´t, they should explain their reasons for not doing so. As a consequence thereof parties should, prior to court proceedings, give serious thoughts to the possibility of mediation.

I think that it is a good thing that the current legislative proposal no longer provides for mandatory mediation. Such obligation would be at odds with one of the most important elements of mediation, the fact that mediation should be voluntary. Mediation can be a very effective, quick and cost-effective form of dispute resolution and therefore forms a good alternative to classic court proceedings. Where parties to court proceedings are subjected to the judgment of the court, parties to a mediation are responsible themselves for the solution of their dispute. And the fact that parties are the architect of their own solution, generally results in more contentment with that solution.

Making mediations mandatory would largely nullify the advantages of mediation. After all, ownership and commitment cannot be imposed.

The legislative proposal is open for internet consultation until 30 September after which the findings will be reported. Consequently the legislative proposal can be amended, if necessary.

Eric van Dam (evd@clintlegal.com / +31 20 820 03 30)