A member of the Dutch parliament recently introduced three bills to embed and enhance mediation in Dutch law as an equal, alternative form of dispute resolution.
The first bill provides that mediators must be registered and qualified (Wet registermediator, Parliamentary Proceedings II 2012/3, 33 722) The second bill aims to incorporate mediation in Dutch civil law (Wet bevordering van mediation in het burgerlijk recht, Parliamentary Proceedings II 2012/3, 33 723) and the third bill aims to integrate mediation in Dutch administrative law, including tax (Wet bevordering van mediation in het bestuursrecht, Parliamentary Proceedings II 2012/3, 33 727).
These three bills are not directly related to the European Parliament and Council directive on certain aspects of mediation in civil and commercial matters, which was implemented in Dutch law on 15 November 2012 (Wet implementatie richtlijn no. 2008/52/EG; Stb. 2012/570). The newly proposed legislation mainly applies to mediation in civil, commercial and administrative disputes which are governed by Dutch law, unlike the implemented directive which only applies to mediation in cross-border disputes and is limited to civil and commercial matters. Also, the bills contain stricter conditions with regard to the confidentiality of mediation and the effect of limitation periods compared to the regime for cases within the scope of the directive.
The three bills, if enacted, would have the following ramifications:
Introduction of “registered mediators”
- Only those mediators that fulfil the requirements under the proposed Act would qualify as “registered mediators”. This would create two groups of mediators, registered and other mediators. Registered mediators are subject to disciplinary law. In civil cases, registered mediators are entitled to privilege in respect of confidential information. Also in civil cases, the engagement of a registered mediator is a requirement for the mediation to interrupt the limitation period of a claim.
Private parties must at least consider mediation
- Mediation is intended to be incorporated into the Dutch Civil Code and the Dutch Code of Civil Procedure. The several amendments include that the originating procedural document in civil cases, that is, the writ of summons or the application, must contain a notice whether or not the parties have tried mediation. If mediation has not been tried, and the dispute is deemed appropriate for mediation (the proposal contains a list of such “appropriate disputes” that generally arise from an agreement), the originating procedural document must contain the reasons why parties have not used mediation. Also if mediation has not been tried, and parties have agreed to its use, the civil court may defer proceedings until parties have unsuccessfully attempted mediation.
The civil court may refer parties to a registered mediator
- Under the proposed provisions, a civil court, in its discretion, may refer private parties to a registered mediator if the dispute is appropriate for mediation.
The civil court may ratify an agreement resulting from mediation
- The bills also aim to facilitate and accelerate the process of mediation. Private parties may electronically request a civil court to rule on a legal bottleneck in mediation. A civil court may, also upon electronic request, ratify an agreement resulting from mediation.
Mediation is a starting point in administrative disputes
- Mediation is also encouraged in the area of administrative proceedings, including tax. Under the intended amendment of the General Administrative Law Act (Algemene Wet Bestuursrecht) and the State Taxes Act (Algemene wet inzake rijksbelastingen), an administrative authority should, in principle, use mediation at the request of an interested party.
These changes may assist parties and their counsel to overcome existing prejudices against mediation. Typically, mediation resolves disputes to the satisfaction of both parties in the large majority of cases within weeks while costing just a fraction of the legal expenses in traditional litigation or arbitration.