'Compulsory' mediation and
article 6 ECHR
Naam: Lejla Ramovic
Masterscriptie Rechtsgeleerdheid: Privaatrecht Scriptie begeleidster: Mr. Aukje van Hoek
Contents
Introduction 3
Movement towards ‘mandatory’ mediation 5
Article 6 of the European Convention on Human Rights 16
Legislation and the case law 20
Limitations imposed 30
Conclusion 36
Introduction
In the US, mediation has achieved great success since 1970s as an effective way of resolving disputes.1 As a result, in last two decades, efforts were made to make mediation more appealing in commercial and civil disputes, within the European Union (hereafter the EU). In the
Netherlands and in England, parties are encouraged by the court to use mediation prior to turning to the judicial system.
When mediation was first introduced, the hope was that there would be more access to different dispute resolving methods and that the parties themselves would take more responsibility in resolving their disputes.2 With the many advantages that mediation offers, even at present, only a
very small percentage of litigants resolve their disputes by using mediation. Usually, only small disputes are litigated using mediation.3 In England and in the Netherlands, the governments and
practitioners still believe that far more disputes can be solved by using mediation and that the main problem why more disputes are not resolved by the mediation is the lack of awareness among litigants.4 It is also reported by the European Commission that the mediation is still not used to its full potential, which diminishes the development of the internal market and the access to justice. That is why the EU, England and the Netherlands decided to develop more policies, legislation and case law to encourage mediation thereby stimulating measures and ensuring litigants would get more familiar with mediation and use it more often.
Additional measures to stimulate mediation can be mandatory or parties can be penalized for failure to consider or engage in mediation. In this way, litigants can be prevented from having direct access to court, because an additional step has been introduced to be overcome by litigants before they are entitled to access court. This can affect their right of access to justice, protected by Article 6 of the European Convention on Human Rights (hereafter ECHR). The research question which will be answered in this thesis is when do these additional measures to stimulate mediation, imposed by the legislation and the case law, become thresholds and obstructions to
1 C. Menkel-Meadow, Foundations of Dispute Resolution, Volume 1, Ashgate Publishing, New York, 2007, p.25. 2 R.A. Jagtenberg, Mediation & Rechtswetenschap. Tien jaar verder‟, Tijdschrift voor mediation en
conflictmanagement, 2007 (11) 1.
3 Ibid.
4 R. Canessa & G. De Palo, New Trends for ADR in the European Unio, in P. Cortes, The New Regulatory
access the judicial system and lead to a violation of Article 6 of the ECHR? The use of mediation is being stimulated, but the governments and the courts are also setting clear boundaries, as the European Court of Justice (hereafter the ECJ) have set certain criteria, which must be satisfied for mandatory mediation to be compatible with the EU law and Article 6 of the ECHR.
There is continuous development regarding mediation and more legislation is adopted. There are factors which have lead the EU, the Netherlands and England to see mediation as more desirable and lead to them compelling parties to mediate. The first chapter describes which factors
influenced domestic legislation and the EU legislation to adopt additional measures to stimulate mediation. The second chapter examines the essential elements which Article 6 of the ECHR guarantees and what elements could be violated and compromised by the implementation of additional measures to stimulate mediation. In the third chapter, the legislation and case law which has been introduced to ensure parties are compelled to use mediation prior of using judicial system will be explored. This paper offers a comparative analysis of implementation of additional measures to stimulate mediation by the EU, in England and in the Netherlands. The final part of the paper looks at circumstances under which additional measures to stimulate mediation lead to breach of Article 6 of the ECHR.
The choice to examine Dutch and English legislation and case law regarding mediation is based on the fact that these two countries have the most successful mediation practice in the EU and the mediation is applied more often than in any other Member State, except for Italy.5 Especially in England, mediation has been part of a larger dispute resolution framework and has been integrated into domestic law for more than fifteen years. Although these two countries have not adopted mandatory mediation, they have imposed certain measures to stimulate mediation for litigants before they are able to exercise their rights of access to court. The Netherlands and England are members of the EU, which facilitate free trade and free movement within the European Economic Area. This also has impacted on State’s legal framework, as the Member States are required to act accordingly to the EU law.6 The EU also played an important role in
5 G. Frerks, M. Breukelaar, T. Jongbloed & M. Uitslag, Mediation tussen dwang en vrijheid, Apeldoorn, Maklu, 2014, p.74.
6 Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950; the EU Charter of Fundamental Rights.
ensuring that different recommendations and directives regarding mediation were implemented and applied by all Member States. As legal acts of the EU and case law have influence on
domestic legislation regarding mediation within the Member States, these legal acts and case law will be discussed.
This paper examines European, English and Dutch legislation and case law with regard to additional measures to stimulate mediation. In doing so, it examines concerns regarding obstruction of access to justice. The consideration is to what extent can mediation serve as an alternative method of dispute resolution to ensure better, cheaper and faster access to justice in general, especially in countries where delays and costs in civil litigation are high, without resulting into obstruction of access to justice enshrined within Article 6 of the ECHR.7 The ECJ took into consideration the time it takes for cases to reach trial and the cost of litigation, when these restrictions are imposed. The general rule is that as long as these additional measures to stimulate mediation are pursuing a legitimate aim and are proportionate, they do not lead to violation of Article 6 of the ECHR.8
Movement towards ‘mandatory’ mediation
This chapter describes what are the factors that encourage the EU, England and the Netherlands to promote the value of mediation in their justice system and why they want to encourage more people to mediate. The question which will be answered in this Chapter is, why the EU and these States have chosen to implement additional mediation stimulating measures, which consist of different restrictions to obstruct parties direct access to the judicial system?
Mediation was first developed in the United States, in the 1970s, at Harvard University.9 Mediation was introduced as the court proceedings in the United States were lengthy and
expensive. This method proved to be very efficient10 and the legal practitioners were encouraged
7 ECJ 18 March 2010, ECLI:EU:C:2010:146 (Rosalba Alassini and Others v Telecom Italia SpA and Others). 8 Ibid.
9 M. A. Schonewille, Toolkit mediation: resultaat bereiken als manager, mediator en onderhandelaar, Den Haag: Boom Juridische Uitgevers, 2007, p.44.
10 S. B. Goldberg, F.E. Sander, N.H. Rogers, Dispute Resolution: Negotiations, Mediation and Other Processes, London: Little, Brown and Company, 1992, p.150.
to investigate the application of this method even more. The success of mediation in the United States was the reason that the legal experts in Europe started experimenting with it.11 In the late
1980s Member States of the EU realized that the number of disputes before their respective courts had also increased, had become lengthier and more costly.12 Lately, the European Commission (hereafter the EC) stated that mediation is still not used to its full potential13 and due to the complexity of the cross-border disputes, many litigants do not redress cross-border disputes. The EU worried about the accessibility of justice and the development of the internal market. That is why the EU decided to develop more policies and the Directive to stimulate the Member States to adopt more ADR mechanisms. The EU considers mediation very suitable method to deal with civil and commercial disputes and ensure litigants are able to reach a settlement which meet their needs and can help maintain a continuing relationship with the other party.14
At present, only a very small percentage of litigants resolve their disputes by using mediation. The EU developed an ambitious plan to ensure that mediation is being used more often by the parties to resolve their disputes in civil and commercial matters across the EU, especially now that the number of disputes that involves nationals of different Member States has increased.15
The Directive 2008/52/EC (hereafter the Directive) was introduced to make this pan-European initiative possible. It is groundbreaking in the sense that, for the first time, the EU did not only require the Member States to raise awareness regarding mediation. The Directive also require the Member States to establish legislation regarding mediation and to encourage litigants and legal practitioners to use it more often. Within the Directive, the EC expressed that there are a number of advantages offered by mediation over litigation and why mediation should be used, including that it is cost effective, flexible and that agreements reached through mediation are more likely to be adhered to voluntarily without further recourse to the courts. The implementation of the Directive aims to establish a balanced relationship between mediation and judicial proceedings.
11 UNCITRAL Model Law on International Commercial Conciliation, A/RES/57/18, 19 November 2002.
12 Public Interest Law Initiative, Bulgarian Helsinki Committee and Polish Helsinki Foundation for Human Rights, European Forum on access to justice, Access to justice in central and eastern Europe: Forum Report, 2002. 13 R. Canessa & G. De Palo, New Trends for ADR in the European Union, above nr.4, p.410.
14 G. De Palo & M. B. Trevor, EU Mediation Law and Practice, Croydon: Oxford University Press, p.1. 15 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters OJ L 136, 24.5.2008.
The Directive was meant to be implemented by all Member States into their national law by 21 May 2011.16
The Directive sets minimum standards for the Member States to adopt within their legislation regarding voluntarily mediation in cross-border disputes. It leaves up to the States to impose mandatory mediation if they wish to do so or/and apply these standards to internal disputes as well.17 It is stated within the Directive that the States need to implement these standards, as long as they do not prevent litigants from exercising their right to access to court. The Directive covers civil and commercial cross-border disputes. At least one of the litigants needs to live in a Member State different than another party.18 The aim of the Directive is set out in paragraphs 5 and 6 in its Preamble. It aims at securing better access to freedom, security and justice within the EU and should include access to judicial as well non-judicial methods of dispute resolutions. This Directive has to contribute to the proper functioning of the internal market. Article 5(2) of the Directive states that the Member States can raise incentives and sanctions to ensure the success of the recourse to mediation.19 The Netherlands was late in implementing the Directive and the Directive entered into force on 21 November 201220, while in England, the Directive was implemented and came into effect on 20 May, 2011.21
The EU Directive No. 2008/52/EC was adopted after a legislative process that took place a number of years. Since 1980s, a series of European acts were adopted to support the reform in justice and to promote mediation as an alternative instrument for dispute resolution. The mediation was first regulated through Recommendations. Recommendation R (2002)10 on Mediation in Civil Matters was first adopted.22 The aim of this Recommendation was to require Member States to facilitate the use of mediation in civil matters whenever suitable and take all measures appropriate to implement more legislation within their legal systems.23 It was stated
16 Article 12 (1) of the Directive 2008/52/EC. 17 Article 5 of the Directives 2008/52/EC. 18 Article 1 of the Directive 2008/52/EC. 19 Article 5(2) of the Directive 2008/52/EC.
20 Wet van 15 november 2012 tot implementatie richtlijn nr. 2008/52/EG betreffende bepaalde aspecten van bemiddeling/mediation in burgerlijke en handelszaken, Staatsblad 2012, 570.
21 F. Steffek, H. Unberath, Regulating Dispute Resolution: ADR and Access to Justice at the Crossroads, Hart Publishing Ltd, Oxford, 2012, p.167.
22 The Committee of Ministers, Recommendation Rec (2002)10 Mediation in civil matters [2002]. 23 Ibid.
that far more needed to be done by the Member States as there was lack of awareness regarding mediation.24 The mediation is not better than a judicial verdict, nor it is supposed to replace
judicial system, it is only meant to be complimentary, especially where the importance of an ongoing relationship is concerned. After Recommendations came into being, the Guidelines were adopted by the Working Group to encouraged Member States, judges and lawyers to provide information about mediation and invite/ refer the parties to use mediation, either by the establishment of court annex mediation schemes or by directing parties to other providers of mediation.25
In 2002, the EC issued a Green Paper on alternative dispute resolutions in civil and commercial disputes.26 The EC stated that many Member States faced problems of access to the judicial system due to the volume of cases brought before the courts, lengthy proceedings and increasing costs.27 Because of that, the Green Paper recommended that efforts were pursued at the European level with the aim of raising awareness of ADR among all legal professionals, as far more needs to be done to ensure more litigants are using mediation as an alternative dispute resolution. The aim of the Paper was to encourage the use of ADR instruments and the EC stated that this should be a priority for all Member States and launched a broad consultation process on how this goal should be reached.28 The Green Paper was meant to evaluate all ADR methods in the Member
States and provide fundamental principles which would apply throughout Europe.
The European Parliament also believed that the courts are no longer the only instruments of justice. That is why a Resolution on online dispute resolution (ODR) and the Directive on Alternative Dispute Resolution (ADR) were adopted.29 The legislation on ODR and ADR is aimed at providing consumers and traders with the opportunity to solve their disputes out of
24 Ibid.
25 Working Group on Mediation, Guidelines for a better implementation of the existing recommendations concerning family mediation and mediation in civil matters, 2007.
26 European Commission, ‘Green Paper on Alternative Dispute Resolution in Civil and Commercial Law’, Report, 19 April 2002.
27 Ibid. 28 Ibid.
29 The European Union Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC; Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR).
court faster, cheaper and in a much simpler way. The Council encouraged the States to raise awareness among the public about the ODR and ADR, the possibilities and the advantages.30
ODR offers consumers and traders the possibility to submit any type of contractual dispute which arises between them from online commercial transactions. The European Parliament stated that the consumers are key players in the internal market and have to feel confident in carrying out transactions online across borders.31 The ODR platform became operational in 2016. The ADR Directive is meant to be a minimum harmonization act that imposes a requirement on Member States to offer effective access to ADR for all consumers and to establish high quality and the same level of protection for all consumers in the EU. In this way all consumers can operate in an effective and fair way.32
With regard to mediation, the EC issued a Code of Conduct for Mediators in 2004.33 This Code called for high standards for mediators as well as for their independence and impartiality. The aim was to ensure the high quality of mediation services and to promote public confidence in mediation as a process for resolving disputes.34 It set out a number of principles which individual mediators may voluntarily decide to apply. The ADR providers and practitioners are encouraged to adopt the code as a minimum standard for mediation services.
Mediation became known in the Netherlands in the mid-1980s35, thanks to the use of mediation
in the divorce disputes. G.P. Hoefnagels is seen as the person who introduced mediation within Dutch divorce law. He started using it in his practice in 197436 and he developed a unique style of divorce mediation. Mr Hoefnagels stated that the best way for couples to divorce, was for a third person to conduct conversations with both of the parties and ensure they were able to reach an agreement together. That became the core of divorce mediation.37 Soon, other lawyers began to discover the possibilities of mediation and this was the beginning of the frequent use of
30 Ibid. 31 Ibid.
32 Directive on consumer ADR, above nr.29.
33 European Commission, European Code of Conduct for Mediators, 2 July 2004. 34 Ibid.
35 R.A. Jagtenberg, Mediation & Rechtswetenschap. Tien jaar verder, above nr.2.
36 A.K. de Vries- van der Zee, “De Rotterdamse methode van scheidingsbemiddeling. Een evaluatie”, Mededelingen
van het Juridisch Instituut van de Erasmus Universiteit Rotterdam. No. 50, 1990.
mediation within divorce disputes. Mediation became a well-developed method of extrajudicial dispute settlement.
From the 1980s, mediation was mostly developed by the private initiatives. One of the first private initiatives, was establishing the NMI, in 1995. The main objective of this institute, is to investigate mediation as an alternative to judicial mechanism, to ensure the quality of mediation and to inform and stimulate the public to use this instrument.38 The creation of the NMI was very important for the government, as to ensure that mediation is being further developed, without immediately implementing legislation regarding mediation.39 The Minister of Justice at that time, Mrs Sorgdrager, stressed out the importance of mediation, such as reducing the costs and the pressure on the courts and having an alternative non-judicial dispute method, but believed that before introducing permanent legislation, the impact and practicalities of mediation first needed to be evaluated through pilots.40 The Dutch government believed that by leaving mediation unregulated, it is a very easy and flexible tool and it is left up to the litigants to use it, in the best manner, as it suits them. To this day, no legislation has been enacted to regulate mediation. Mediation is only regulated by laws of civil procedure.
The first government initiative, was initiated in 1996, by the Minister of Justice, Mrs Sorgdrager. She founded the Platform Alternative Dispute Resolution (hereafter Platform ADR).41 The
Platform ADR was charged to identify areas where mediation could be successfully
implemented, to provide proposals for mediation legislation and to identify potential obstacles. After the research was performed, the Platform ADR submitted its findings and
recommendations in the report: ‘Conflict and Mediation’.42 Following, the final report of the Platform ADR, the letter, ‘More Ways to Justice ADR Policy Letter 2000-2002’, was prepared by the Ministry of Justice and presented to Parliament, to outline the new policy on mediation for the period 2000-2002.43 The policy letter stated that the Dutch people encountered more legal disputes and an effort needed to be made to resolve more disputes through other methods, like
38 J. van Bruggen (red.), Praktisch opgelost: mediation als methode voor conflicthantering, Den Haag: Sdu Uitgevers 1997.
39 Kamerstukken II 2009-2010, 29528, Nr.6. 40 Ibid.
41 Staatscourant 1996, nr.74.
42 Platform ADR, Conflictbemiddeling, Eindrapport, Den Haag: Ministerie van Justitie, 1998.
mediation.44 It was seen by the government as essential, that litigants take more responsibility for
resolving their own conflicts. Only a small number of professionals and litigants use mediation and its use was therefore limited. Therefore, the Platform ADR suggested that the government should inform the public more about the procedure and advantages of mediation, train legal professionals and develop new pilot projects.45 It was emphasized that the main goal of introducing mediation, was not to reduce the workload of the courts, but the importance of a continuing relationship between litigants.46 Mediation was just meant to be an additional dispute mechanism and discourage the increasingly legalization of disputes.
Following the ADR Policy Letter, the overall project ‘Alternative dispute resolution and mediation’, was initiated, which was announced in the Policy Letter.47 It encompassed two
specific projects: ‘Court Encouraged Mediation’ and ‘Mediation and Legal Aid’. Both projects ran from 2000 to 2003 and five courts participated in this pilot. This pilot was the first project which experimented with court annex mediation. In this way the government could examine to what extent there was a need for mediation and how to facilitate and organize mediation in the most efficient way. The second project was to examine possibilities of structural referral to mediation, by Offices for Legal Aid.48 Based on the results, potential legislation could be
proposed. So following this project, in 2003, the Research and Documentation Centre (hereafter WODC) found that the government should finally implement the referral provision court annex mediation.49
Following the results of the above-mentioned pilot project, the Minister of Justice Mr Donner, came up with the Policy Letter called "Mediation and the legal order" in 2004. With this letter, a decision was reached on the actual implementation, whereby it was announced that referral provision, would soon become available to all courts.50 It was also stated that the mediation
44 Ibid. 45 Ibid. 46 Ibid.
47 L. Combrink-Kuiters, ‘Het evaluatieonderzoek landelijke projecten mediation rechterlijke macht en mediation gefinancierde rechtsbijstand: de stand van zaken’, Tijdschrift voor Mediation 2002, nr.3.
48 Ibid.
49 L. Combrink-Kuiters, E. Niemeijer & M. ter Voert, Ruimte voor mediation, WODC, Boom Juridische Uitgevers, 2003.
would probably not be the appropriate means to reduce the workload of the courts, but mediation was seen as an extension of the legal service. Therefore, from 2005 to 2007, the court annex mediation was implemented, throughout the whole of the Netherlands.51
The Member of Parliament (hereafter MP) Van der Steur, thinks that more disputes need to be resolved through mediation. A research showed that there was still a lot of room left for the use of mediation to grow52 and the WODC report showed that many litigants mostly do not use mediation because they are unfamiliar with the procedure and the quality of the service.
Therefore in 2012 the MP Van der Steur started a new campaign to promote mediation53 and in 2013 he submitted the initiative motion. It was named ‘establishing Legislation regarding Promotion of Mediation’. The purpose of this legislation, is the full legal embedding of
mediation as an alternative dispute resolution in civil and administrative law.54 The purpose of the bill is to encourage and professionalize the use of mediation. If the dispute is within a “relational component”, litigants will be asked to resolve their dispute through mediation. The general idea is that citizens and companies are responsible for solving their own disputes.
The legislation includes three separate laws: Law regarding the Registry Mediator55, Law
promoting mediation within Civil Law56 and Law promoting mediation within Administrative
Law57. The Law Registry Mediator needs to ensure the quality and integrity of the mediators and
their services. This strengthens the trust in the mediator’s profession and in the use of mediation. Within Administrative Law, government agent will be asked to actively consider the possibility of use of mediation and within Civil Law, the judge is encourage to refer parties to mediation first, as an alternative to judicial proceedings. Mediation needs to became a logical alternative to traditional judicial dispute resolution.
51 B.F.C. Bakker, L. Combrink en M. Pel, ‘Mediation via de recht. Doelstellingen, feiten en ervaringen‟, Nederlands
Juristen Blad, 2 februari 2008, nr.8.
52 B.E. Baarsma, Blijft mediation de eeuwige belofte of wordt het een volwassen markt? SEO Discussion Paper 68. Amsterdam: SEO, 2012.
53 Kamerstukken II 2010-2011, 32 555, Nr. 7.
54 Kamerstukken II 2012/13, 33723, Nr. 3; Kamerstukken II 2012/13, 33722, Nr. 2; Kamerstukken II 2012/13, 33727, Nr. 2.
55 Kamerstukken II 2012/13, 33722, Nr. 2, Voorstel van Wet registermediator.
56 Kamerstukken II 2012/13, 33723, Nr. 2, and Nr. 3, Voorstel van Wet bevordering van mediation in het burgerlijk recht.
Following the appointment of MP Van der Steur as Minister of Justice and Security, on 20th of
March 2015, his initiative legislation proposal was withdrawn. The government has initiated a legislation regarding mediation of its own,58 called "Promotion Mediation Act" and was
proposed on 13th of July 2016.59 It greatly corresponds with the original legislation of 2013. The Minister of Justice and Security still believes that litigants are most capable of resolving their own relational disputes and underlying causes. Mediation also ensures that less disputes are legalized and more disputes are solved in an efficient and fast manner.60 In the new legislation proposal, the Minister of Justice and Security, has changed certain provisions, as he does not want to implement mandatory mediation anymore.
During the last two decades, England has progressively adopted a policy whereby courts are seen as the last resort for litigants involved in civil and family disputes. Mediation as we know it now came into being with civil justice reforms in 1999. The civil justice system was constantly criticized and the government appointed Lord Woolf to examine the justice system and come up with new recommendations to improve it.61 In 1995, Lord Woolf published results in ‘Access to
Justice’, wherein he set out the problems within the English civil judicial system.62 Lord Woolf
found there were mainly three reasons why the judicial system was not functioning well. The court proceedings were too expensive, there were unnecessary delays and too many complex rules.63 Lord Woolf made a number of recommendation. Those relevant to this thesis are:
- ADRs need to be promoted and used more often, as in this way litigations can be avoided, the ADR is also less costly and less complex. The courts should encourage the litigants to use mediation when appropriate;
58 Kamerstukken II 15, 33 722, Nr. 23; Kamerstukken II 201, 33 723, Nr. 14; Kamerstukken II 2014-2015, 33 727, Nr. 12.
59 Tweede Kamer, Memorie van Toelichting Wet bevordering mediation concept consultatie, 2016. 60 Ibid.
61 C. Elliott and F. Quinn, The English Legal System, Pearson, 2009, p.511.
62 Commission Lord Woolf, Interim Report to the Lord Chancellor on the civil Justice system in England and Wales, London: Lord Chanecellor’s Department 1995; Commission Lord Woolf, Final Report to the Lord Chancellor on the civil Justice system in England and Wales, London: Lord Chancellor’s Department 1996.
- The Commission also recommended that the English judge would transform from a passive player during the proceedings, into an active case manager and should be able to sanction any litigant who is reluctant to use mediation;
- Disputes need to be settled at an early stage and the Commission advocated for pre-action protocols. These are codes of conduct, which encounter instructions for the parties, established in a case where a potential lawsuit is threatened.64
The Lord Woolf’s final report ‘Access to Justice’ dramatically transformed the civil justice system.65 These changes were enshrined in the 1999 Civil Procedure Rules.66 Rules regarding mediation, have been included in the CPR, which regulates civil legal procedure.
As seen above, the publication of the Report by Lord Woolf, was a turning point in the development of non-family civil mediation. Lord Woolf believed that most disputes could be resolved through mediation. This has also been the view adopted by the courts. In a number of judgements, it is clearly stated that courts should encourage the use of ADR as much as possible, using the means incorporated within the CPR. Mediation is not mandatory, but according to Mr Justice Lightman, mediation is the core of the current civil justice system.67 Also the courts have the power to order mediation.
Active case management was first used in Kinstreet Ltd v Balmargi corporation Ltd68. There
were four parties involved within a shared dispute, breaches of contract, conspiracy, breach of duty and property on trust. The Judge Arden ordered parties to use mediation, as according to Rule 1.1 of the CPR, this was the primary purpose of justice. Proceedings could even be even suspended as seen in In Muman v Nagasena,69 until the parties at least tried to resolve their dispute through mediation. In Muman v Nagasena, Ambedkar International Mission appealed an unsuccessful application for possession of a property, which has been used as a Buddhist temple, to remove the tenant.
64 Ibid. 65 Ibid.
66 C. Elliott and F. Quinn, The English Legal System, above nr.61, p.516. 67 Hurst v Leeming [2001] EWCH 1051 Ch.
68 Kinstreet Ltd v Balm.argi corporation Ltd [1999] ADR.L.R. 07/23 69 Muman v Nagasena [2000] 1 W.I.R. 299.
More recently, in 2009 Lord Jackson conducted another key report on the civil justice.70 In the
report he argued that mediation should not be mandatory and litigants should be only stimulated to attempt to resolve their dispute through mediation. He suggested that there should be a far greater emphasis on mediation through the cost regime, judicial directions and the judicial case management function. This is necessary as many efforts were already made by legal
practitioners, private bodies, courts and legislature, to promote and encourage mediation.71 Increasing awareness about the procedure and benefits is still needed, as well as cultural change among legal practitioners and litigants. Lord Jackson also decided to published the Jackson ADR Handbook to assist practitioners in applying mediation.
Different governments and the EU have tried to strengthen the use of mediation. However, their efforts have not lead to the full potential of mediation being utilized. There is still a natural tendency of parties towards more traditional dispute resolutions. Still to this day, only a small percentage of litigants uses mediation, although there are well documented economic and social benefits of reaching a settlement through mediation. The ADR is not solidly established in Europe and the mediation is also just not inherent in traditional dispute resolution. It is believed that mediation is a cost-effective instrument that increases access to justice and lowers the burden of the court system. The aim of implementing additional measures to stimulate mediation is also to ensure parties reach an agreement that is satisfactory to both parties and preserve the relationship between the parties. That is why the EU, England and the Netherlands are trying to raise awareness about the values of mediation and have adopted different stimulating measures. In England new provisions in relation to mediation were implemented within CPR, in 1999 and in the Netherlands the mediation annex court offers mediation that is complementary to the court proceedings and a new bill proposal regarding mediation is pending. The EU has also
implemented policies, Recommendations, Directives and most important the Directive No. 2008/52/EC, which need to raise awareness and encourage the use of mediation.
Additional measures to stimulate mediation have been introduced in the EU, the Netherlands and England. These additional steps need to be overcome by litigants before they are entitled to
70 Lord Jackson, Review of Civil Litigation and Costs: Final Report, Ministry of Justice, 2009, 29 Civil Justice Quarterly 263, 2010.
access court. This can affect their right of access to court, protected by Article 6 of the ECHR. Question is which elements deriving from Article 6 of the ECHR can be breach and under which circumstances?
Article 6 of the European Convention on Human Rights
As mediation has a lot of advantages, courts have been encouraging parties to use it prior to court proceedings. This raises the question: when do additional measures to stimulate mediation
impose unlawful barriers to access to court, and thus violate Article 6 of the ECHR? To answer this question, elements of Article 6 of the ECHR will be examined to determine what rights are guaranteed by this Article.
Article 6 of the ECHR ensures that everybody is entitled to a fair trial and public hearing within a reasonable amount of time, by an independent and impartial tribunal established by law, in civil72 and criminal proceedings73. This means that a litigant is guaranteed access to a court74 to bring a civil claim and obtain a court decision75, within a reasonable amount of time.76 This right is a fundamental principal of rule of law.77 The concept of fair trial looks at the whole
proceeding.78 The right of access to a court must be practical and effective.79 This means that a
litigant must have a clear and practical opportunity to challenge an act that is interfering with his rights.80
Only two elements, protected and guaranteed by Article 6 of the ECHR, are relevant for the discussion of ‘additional mediation stimulating measures’. The first element requires that the trial takes place within a reasonable amount of time.81 Any delays within the judicial system may prevent litigants from having sufficient and effective access to justice.82 The whole of the
72 ECtHR 22 June 1972, No. 2614/65 (Ringeisen v Austria).
73 ECtHR 8 Jun 1976, No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72 (Engel And Others v The Netherlands). 74 ECtHR 21 Feb 1975, No. 4451/70 (Golder v The United Kingdom).
75 ECtHR 30 October 2003, No. 41576/98 (Ganci v Italy). 76 ECtHR 19 March 1997, No. 18357/91 (Hornsby v Greece). 77 ECtHR, Golder v The United Kingdom, above nr.74.
78 ECtHR 2 March 1987, No. 9562/81 and 9818/82 (Monnell and Morris v the United Kingdom). 79 ECtHR 4 December 1995, No. 23805/94 (Bellet v France).
80 ECtHR 10 April 2003, No. 69829/01 (Nunes Dias v Portugal).
81 ECtHR 27 October 1994, No. 12539/86 (Katte. Klitsche de la Grange v Italy). 82 Ibid.
proceedings must be taken into account.83 There is not a general guidance on the time limit, but it
is generally assumed that a case at court (first instance) cannot last longer than three years, five years at Appeal Court and six years at Supreme Court. However, this will depend on the
circumstances of the case. The second element concerns financial thresholds.84 The costs relating to mediation will need to be paid by the litigants. These costs cannot be too high, as that may impose unlawful restrictions and may deprive litigants of their right of access to court.
Additional financial restrictions on the right of access to justice are allowed, as long as these are proportionate.
The right under Article 6 of the ECHR is not absolute and can be restricted. Restrictions to access to justice are permitted if the limitation is compatible with the principles established by the court. When assessing the lawfulness of a limitation of access to court imposed by the States, the ECtHR takes into account whether the restriction has a legitimate aim, is proportionate85 and whether the very essence of the right is not impaired.86 Proportionality is a main element in determining whether a restriction is lawful. It requires a reasonable balance between the legitimate aim of the State (restriction) and the means the State used to achieve this aim. The question is whether the restriction is necessary and effective. Proportionality also requires a fair balance between individual rights and public interests.87 When the State imposes the restrictions,
it should use the least intrusive means.88
Whether the length of the proceeding was reasonable needs to assessed in each case to take into account the case’s particular circumstances. Breach of the domestic time limit does not
automatically lead to violation of Article 6 of the ECHR, as the ECtHR has not established general principles as to how long proceedings may last. The ECtHR, when assessing whether the duration of the trial was reasonable, does so on a case-by-case basis. The court has developed four criteria to assess whether the length of the trial was unreasonable: the complexity of the
83 ECtHR 28 Jun 1978, No. 6232/73 (Konig v Federal Republic of Germany). 84 ECtHR 28 May 1985, No. 8225/78 (Ashingdane v United Kingdom). 85 Ibid.
86 ECtHR 6 December 2007, No. 73002/01 (Kijewska v Poland).
87 ECtHR 23 April 1997, No. 21363/93 (Van Mechelen and Others v the Netherlands). 88 ECtHR 18 April 2013, No.26419/10 (Saint-Paul Luxembourg S. A. v Luxembourg).
case, the behaviour of the parties, the interests of the parties and the administrative and judicial activities.89
The complexity of a case relates both to the facts and to the law.90 For instance, it may relate to any of the following: the involvement of several litigants in the case,91 the number of witnesses or expert witnesses,92 the complexity of the legal issues,93 or the various items of evidence that have to be obtained.94 The litigants are required to cooperate in carrying out necessary
procedural requirements like submit required documents,95 not to use any delaying tactics and to avail themselves from shortening the proceedings.96 The litigant is allowed to use all the
remedies available to him under domestic law97. The litigant cannot complain about delays of the proceedings if these are caused by him, but these can be outweighed by delays that are caused by the State. With regard to the conduct of the competent authorities, States must ensure that their legal system is organised in such a way that the litigants are able to obtain a final judgment on disputes regarding their civil rights and obligations, within a reasonable amount of time98 and constant overload of cases does not justify excessively lengthy proceedings.99 How long a procedure may last, also depends on what is at stake for the litigant. If the final judgment is of significant importance for the litigant, the reasonable duration of the proceeding will need to be even shorter. The court stated that certain cases need to be dealt with even faster, such as cases regarding pension disputes100, employment disputes101, etc. In some cases, delays in different
stages of the procedure may not separately lead to breach of Article 6 of the ECHR, but when viewed together and cumulatively they may lead to an unreasonable lengthy procedure.102
89 Ibid.
90 ECtHR, Katte Klitsche de la Grange v Italya, above nr.81. 91ECtHR 8 July 1987, Series A No. 120 (H. v the United Kingdom). 92 ECtHR 22 December 2004, No. 40063/98 (Mitev v Bulgaria).
93ECtHR 27 November 2012, No. 46601/07 (Breinesberger and Wenzelhuemer v Austria). 94 ECtHR 15 October 1999, No. 26614/95 (Humen v Poland [GC].
95 ECtHR 13 November 2008, No. 26073/03 (Ommer v Germany).
96 ECtHR 7 July 1989, No. 11681/85 (Unión Alimentaria Sanders SA v Spain).
97 ECtHR 19 October 2006, No. 44208/02 (Arsov v The former Yugoslav Republic of Macedonia). 98 ECtHR 29 July 2004, No. 36813/97 (Scordino v Italy (no. 1) [GC].
99 ECtHR 1 July 1997, No. 20950/92 (Probstmeier v Germany).
100 ECtHR 1 March 2007, No. 66907/01 (Docevski v The former Yugoslav Republic of Macedonia). 101 ECtHR 8 December 2005, No.13898/02 (Dumanovski v The former Yugoslav Republic of Macedonia). 102 ECtHR 29 May 1986, No. 9384/81 (Deumeland v Germany).
The ECtHR case law also determined that the additional financial thresholds can restrict the right of access to court. Whether the imposed costs related to mediation are legitimate is determined by looking at whether the costs incurred were proportionate. Case law related to costs fees will be discussed because it sets out the amount of costs that are proportionate from the point of view of the interests of justice. The court has decided that “(...) the amount of the fees assessed in the light of the particular circumstances of a given case is a material factor in determining whether or not a person enjoyed his right of access”.103 This means that the amount of the costs relating to
mediation, cannot impair the very essence of the right to access to court and proportionate depends on the litigant's ability to pay the cost.104 Thus, the court has decided that the financial situation of a litigant needs to be taken into account.
Whether the amount of costs is proportionate is established in the cases Kreuz v Poland105 and
Marina v Latvia.106 In Kreuz v Poland, the litigant sued the local government for damages resulting from its failure to issue a permit to start a car wash. He had to pay a cost fee of around €75.000. The litigant applied for total exemption from paying the court fee as he was
unemployed. The court in Poland decided to reduce the court fee and ordered the litigant to pay € 25.000, which is the average annual salary in Poland. The ECtHR ruled that Article 6 of the ECHR was violated, as the court fee amounted to a sum equivalent to the average annual salary. This means that the costs relating to mediation are considered proportionate as long as they do not exceed an average annual salary. The court set the limit to costs, namely an annual salary.
Additionally, the financial situation of a litigant is also important in determining whether the costs relating mediation were proportionate. In Marina v Latvia107, Marina lived together with
her partner and sold fruit and vegetables from the garden. Garden and the greenhouse were destroyed and Marina pressed charges, but the proceeding was not instituted because she did not own the right to use the land. She claimed damages from the perpetrator, but had to pay the court fee of €2.148 first. The court fee was reduced to €43, because of her financial situation. Her only income was a pension of €107 and she requested twice for a further reduction of the court fee.
103 ECtHR 12 July 2007, No. 68490/01 (Stankov v Bulgaria).
104 ECtHR 20 December 2007, No. 21 638/03 (Paykar Yev Haghtanak v Armenia). 105 ECtHR 19 June 2001, No. 28249/95 (Kreuz v Poland).
106 ECtHR 26 October 2010, No. 46040/07 (Marina v Latvia). 107 Ibid.
Her requests were denied. The ECtHR ruled that the refusal to further reduce the court fee is considered to be a violation of Article 6 of the ECHR, as ‘the Court considers that where a competent national authority has already assessed the financial status of an applicant and
concluded that the person is in need of special attention due to poor financial circumstances, the domestic courts should be particularly concerned as to whether the financial burden incurred for bringing a claim is proportionate to the individual's ability to pay’. In another case, Kijewska v
Poland108 it was stated that ‘(...) this sum was apparently her only asset and it does not seem reasonable to demand that she spend it on the payment of court fees rather than on her basic living needs’. From above, it can be concluded that the limit of the costs relating to mediation can amount to maximum of the average annual salary and should not exceed the monthly income of a person, if they do not have any additional savings.
As seen above, according to Article 6 of the ECHR, the States are required to organize their legal system in such a way, that the litigants are able to settle their case before a court, within a
reasonable amount of time and at a reasonable cost. The right of access to court is not absolute and can be subject to limitations. To determine whether the length of the procedure was
reasonable, the court looks at four criteria: the complexity of the case, the conduct of the litigants as well as that of the authority and the interest of the parties. This assessment is made in light of all individual circumstances, in each case. The second element, financial thresholds, can also frustrate access to justice. The costs must be proportionate to the financial means of the
individual litigant and is limited to the amount of the average annual salary of the litigant in the region.
Now the relevant elements from Article 6 of the ECHR concerning additional mediation stimulating measures have been discussed, this paper will explore the barriers which the EU, England and the Netherlands impose, by encouraging litigants to use mediation prior to going to court.
Legislation and the case law
The use of mediation as a dispute method is encouraged by governments in the Netherlands and in England. Additional stimulating measures are imposed in both countries. In this chapter, the current and future mediation policy in the Netherlands and England will be examined by looking into the current legislation, case law, proposed bills and the pre-action protocols.
In England the litigants are supposed to see the legal court proceedings as a last resort and the court have to actively manage cases. Within Section 1.4 CPR,109 the court is obligated to achieve the over-riding objective of enabling the court to deal with cases in a fast and cost-effective way by actively managing cases. According to 1.4.2(e) Section110, the parties can be encouraged to use ADR, if the court considers that appropriate. Within Section 44.3(5) of the CPR111, it is stated that a court may order adverse costs against a litigant, if he unreasonably refuses to
mediate. The general rule according to Section 44.3(2) CPR112 is that if the court decides to make a costs order for the parties to pay legal costs, the unsuccessful party will be ordered to pay the costs of the successful party, except if the court makes a different order. However, the court will depart from the general rule from Section 44.3(2) CPR113 and decide whether and what amount of the costs shall be awarded to the winning party, taking into account the conduct of the parties. If the winning party had unreasonably refused to mediate they will not be awarded any amount of costs. In this context, conduct refers to the efforts made, if any, before and during the
proceedings to try to resolve the dispute. Based on the provisions from the CPR, mediation is not mandatory, but the parties do have an obligation to consider reaching a settlement through mediation.
Pre-action protocols were introduced in additional to the CPR to endorse mediation as an excellent alternative to legal proceedings.114 At a preliminary stage of the civil proceedings,115 the claimant is encouraged to inform the defendant, whether he would like to use any form of
109 Section 1.4 CPR. 110 Section 1.4.2(e) CPR. 111 Section 44.3(5) CPR. 112 Section 44.3(2) CPR. 113 Ibid. 114 Section 1.4(2)(e) CPR.
115 Ministry of Justice, Pre-Action Conduct and Protocols, <https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct>.
ADR.116 It is then up to the defendant to state whether he will explore the ADR or provide a
reason for his refusal.117 After the court receives the defense, both parties will have to fill in the
Allocation Questionnaire regarding use of mediation. Section 26.4(1) CPS118 states that the court can also stay the case if considered appropriate. If both parties would like to use mediation, the case is stayed six weeks. The court looks at their conduct to determine the costs awarded to the wining party. Additionally, under the Solicitors Code of Conduct, the solicitor needs to confirm that he has explained to his client the possibility and the advantages of mediation and the possible costs sanctions if the litigant unreasonably refuses to mediate.119
Just like the CPR, a number of court rulings have ruled on why the parties should be encouraged to mediate and what is meant by an ‘unreasonable’ refusal to mediate’. In Dunnett v Railtrack
plc120 the successful party was deprived of the payment of the legal costs for unreasonably
refusing to mediate, which was confirmed in the now famous case Halsey121. In Halsey v Milton
Keynes General NHS Trust it was explicitly stated that the court can never impose mandatory
mediation on unwilling parties, as that would violate their right of access to court under Article 6 of the ECHR.122 The court stated that the parties could be required to consider mediation because mediation can reduce costs, it offers other remedies that the court does not offer such as an apology, an explanation and the continuation of an existing relationship and as parties have reached an agreement together, the chance is higher that they will be more pleased with the results.
In Halsey v Milton Keynes General NHS Trust123 the widow was claiming indemnity from the hospital, stating that they were negligent. The hospital was supposedly responsible for her husband’s death. The claimant proposed mediation many times, but the hospital refused, as they claimed the patient died, inhaling his own vomit. The court did not award the costs of the legal procedure to the widow, as the court stated that the hospital had rightfully refused to mediate
116 Annex A, para 2.2(2) Practice Direction on Pre-action Conduct. 117 Annex A, para 4.2(4) Practice Direction on Pre-action Conduct. 118 Section 26.4(1) CPS.
119 The Civil Procedure Rules 1998, SI 1998/3132. 120 Dunnett v Railtrack plc, [2002] 2 All ER 850.
121 Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576. 122 Ibid.
because they believed that they would win the case. This case has identified six conditions that need to be considered when determining whether a litigant was unreasonable in refusing the mediation:
- The nature of the dispute. Most cases are suitable, by their nature, for mediation, except when parties want the court to set a binding precedent, rule over a point of law or when injunctive or other relief is essential to protect the position of a party.
- The merits of the case. Belief might be sufficient justification for a refusal to mediate, to ensure that parties cannot tactically suggest mediation because they know they cannot win the case. - The parties are expected to consider other disputes settlements like negotiations, discussion, mediation, etc. It is also noted that mediation often succeeds where other settlement attempts have failed.
- Whether the costs related to mediation would be disproportionately high, considering the financial situation of the litigants and available public funds.
- Whether the mediation will result in an unacceptable delay to the trial, as it has been suggested late in the process.
- The burden is on the unsuccessful party to show that the mediation would have had a reasonable chance of success and the successful party unreasonably refused to mediate.
The first case in which it was decided that the court could require parties to use mediation prior going to court was Cowl v Plymouth City Council.124 When it was decided to shut down a
nursing home for the elderly, the applicants applied for a judicial review of the decision, which was refused, as none of the residents were offered a home for life. Lord Woolf stated that under the new CPR, litigants should mediate more to ensure that they resolve the dispute with the minimum involvement of the courts. In Burchell v Bullard the high rate of successful of mediation was pointed out and the court wanted legal professionals to acknowledge the importance of mediation.125 According to Mr and Mrs Bullard, their builder did not build the extension to their house as required and they refused to pay him £18.000. He issued a counter-claim of over £100.000, which was exaggerated. The judge decided that the builder had to pay £5.000. The costs of the proceedings were over £160.000. The builder had suggested mediation,
124 Cowl v Plymouth City Council [2001] EWCA (Civ) 1935. 125 Burchell v Bullard [2005) EWCA Civ 358, Ward LJ.
but the couple refused. The couple was not penalized, but the court stated that they had unreasonably thought that they would win the case and that the case was too complex for mediation. The costs of mediation would have been much lower than the legal costs.
In Egan v Motor Services (Bath) Ltd126 the appellant bought an car. After a month, he claimed the purchase price and the damages. The car dealer refused to accept the claim. It was decided that the claimant had no ground to return the car. The court stated that mediation should have be used, as it would have saved the parties costs and it would have allowed them to do more than just negotiate. In Dunnett v Railtrack plc., for the first time, the court deprived a successful party of receiving the legal costs.127 Ms Dunnett was the owner of a field where she had horses.
Railtrack replaced the gate between the field and the railway line. The gate did not automatically close as before and a few horses got hit by the train. Railtrack won the case, but unreasonably refused to mediate and therefore did not receive legal costs. It was made clear that litigants have the duty to consider mediation, when a dispute seems suitable. Even when intense feelings have arisen, the skilled mediators can reach a better settlement than courts. In other cases the court also widened the circumstances under which it penalizes parties that refuse to mediate: refusing to negotiate128, delaying agreeing to mediation129, taking unreasonable positions in mediation130
and unreasonably demanding an apology in prerequisite to mediation.131 The court does not
impose any costs on parties if the refusal to mediate was reasonable, such as due to poor prospects that a mediation would be successful.132 In Faida v Elloit Corporation133 the parties
had not used mediation, but mediation in this case would have been very successful. The defendant was living in the flat above the claimant and he made a lot of noise. The defendant could not be forced to lay down the carpet, as he had installed expensive oak flooring and underfloor heating. The parties should have used mediation, as a practical decision could have been reached and much of the legal costs could have been avoided.
126 Egan v motor Services (Bath) Ltd. [2008] 1 WLR 15, Ward LJ. 127 Dunnett v Railtrack plc., above nr.120.
128 Multiplex Constrs. (UK) Ltd. v Cleveland Bridge UK Ltd., [2008] EWHC (TCC) 2280. 129 Nigel Witham Ltd. v Smith, [2007] EWHC (TCC) 3027.
130 Earl of Malmesbury v Strutt & Parker, [2008] EWHC (QB) 424. 131 Wright v HSBC Bank PLC, [2006] EWHC (QB) 1473.
132 Reed Executive PLC v Reed Bus. Info. Ltd., [2004] EWCA (Civ) 887. 133 Faida v Elloit Corporation [2012] EWCA Civ.287.
The parties who are unwilling to mediate must at least provide reasons why. In SPGF II SA v
OMFS Co & Anr134, the SPGF II was the owner of an office building and was leasing a few
floors of the building for the SPGF. When the leases expired, the tenants were required to repair the offices. The PGF claimed dilapidations and £1.9 million in damages. The OMFS refused to mediate when asked. The court ruled that there are always difficulties which parties need to overcome, but these may be reasonably overcome if the parties address them. In Phillip
Garritt-Critchley v Andrew Ronnan and Solarpower PV Ltd135 the court strongly encourages parties to use mediation, even when there is little chance that it would be useful. The dispute arose regarding the defendants’ failure to allocate shares in a company pursuant to an alleged
agreement. The defendant refused to mediate, as he stated that the parties were too far apart. The judge stated that parties don’t know how far apart they are from each other unless they explore their views. Even in emotional disputes a mediator can use his skills to bring parties closer together. This was confirmed in Northrop Grumman Mission Systems Europe Ltd v BAE
Systems136 where it was stated that the refusal to mediate meant that the parties had lost the opportunity to resolve their dispute. There is also a case in which the court went even further and did not allow the claim to be dealt with in court, as the claimant was offered full redress during an ADR procedure.137
The Netherlands does not have a legalistic approach towards mediation, but a more pragmatic one. The Dutch government believes that the absence of rules regarding mediation is the reason for its success. Since it is left unregulated, it is seen as a tool that can be used by many parties that wish to resolve their disputes in a very easy and flexible manner, in the way that suits them best. Yet mediation can be placed within a legal framework. The Dutch mediation policy is mostly regulated by the NMI. NMI mediators apply the NMI Rules of Procedure and the NMI Behaviour Rules and they are under the supervision of the Disciplinary Committee of the Foundation of Judiciary Mediators. The rules which apply to mediation are the legal rules derived from civil law. These are legal rules within book 3 and 7 of the Dutch Civil Code.138
134 SPGF II SA v OMFS Co & Anr [2012] EWHC 83 (TCC).
135 Phillip Garritt-Critchley v Andrew Ronnan and Solarpower PV Ltd [2014] EWHC 1774 (Ch). 136 Northrop Grumman Mission Systems Europe Ltd v BAE Systems Ltd [2014] EWHC 2955 (TCC). 137 Christopher and Claire Binns v Firstplus Financial Group Plc [2013] EWHC 2436 (QB). 138 For example Articles 900-906 Book 7 of the Dutch Civil Code.
Parties can be referred to mediation prior to or during the legal proceedings.139 If the case is
referred prior to the proceedings, the judicial authorities evaluate whether the case is suitable for mediation and, if they think that the parties will profit from mediation, the court will send parties a mediation proposal. Parties can also be referred to mediation during the court session. The judge will mention this during court proceedings. Before referring the parties to mediation, the judge will examine the case and whether the mediation will be suitable. The referral to mediation of civil matters is done on the basis of the Article 22a of the Dutch Code of Civil Procedure. The parties can reach a (partial) agreement and the court procedure will be terminated. The procedure will resume as soon as possible if it becomes clear that the parties are not able to reach an
agreement.140
In the Netherlands, the judge can only indicate to the litigants that the parties can use mediation prior to or during the court proceedings. A failure to mediate will, in principle, not attract adverse cost consequences.141 In the Netherlands, parties are not required to investigate whether they will be able to resolve their dispute by use of mediation, but parties can endorse certain consequences as Article 237 (1) CPR can be interpreted broadly. According to Article 237 (1) CPR, the court has the power to require that the costs that were 'unnecessarily' incurred by a litigant be paid by the party that caused them.142
Mediation is voluntarily and parties that unreasonably refuse to mediate cannot be penalized or forced to pay proceeding costs. Only within labour law is there is an exception. Within labour law, the court advises parties to use mediation first. Since the 1st of July 2015, the employment law regarding the termination of employment has been modified. Before that date, upon the termination of employment, if the employer had unreasonably refused to mediate or required some preconditions to attempt mediation, he was required to pay an higher severance.143 If the employee refused to reach a settlement through mediation, he risked termination of his
139 Raad voor de Rechtspraak, Mediation naast rechtspraak, 1 Januari 2016. 140 Ibid.
141 Ibid.
142 Article 237 (1) CPR (Artikel 237 lid 1 Rv).
143 E. Knipschild, ‘De Pel-vuistregels bij mediation in arbeidsrecht anno 2014’, Tijdschrift Arbeidsrechtpraktijk 2014: Rechtbank Rotterdam 4 Januari 2011, LJN BQ3318, ECLI:NL:RBROT:2011:BQ3318; Rechtbank Haarlem 3 Februari 2009, LJN BH3164, ECLI:NL:RBHAA:2009:BH3164.
employment contract and lower compensation.144 Additionally, in situations of continued
payment of the wage, in case of illness, the employee may not receive his salary if he refuses to use mediation,145 while if the employer refuses to mediate he risks having to pay more loan.146 Since the 1st of July 2015, both parties are expected to make far more effort to reach an agreement through mediation. If the employer unreasonably refuses to settle through
mediation147 or unreasonably terminates the mediation,148 the termination of employment will be refused. If the mediation has been attempted, but the employer has not done everything to ensure that the relationship at work has been normalized and he has caused the unworkable situation, the employment contract will be terminated, but the employee will receive severance.149 In 2013 the Court of Appeal ruled that the employer could not be forced to mediate.150 This means that within the employment law, the employer can be only be required to pay incentives or the contract can be terminated, but the litigants cannot be obligated to mediate.
In July 2016, a new bill proposal called the "Promotion Mediation Act" was introduced.151 This new bill is meant to encourages the judge to refer the parties to a mediator, if he thinks that it can lead to a settlement. The litigants are obligated to consider whether mediation is an appropriate dispute resolution option, for their dispute, before going to the court.152 Within the subpoena or
legal request, the litigants will have to state whether they tried to resolve their dispute through mediation, and if not, the reasons for not doing so. The judge could still refer the parties to mediation according to the new Article 22a paragraph 1, at any stage of the procedure, if he
144 E. Knipschild, ‘De Pel-vuistregels bij mediation in arbeidsrecht anno 2014’, above nr.143: Hoge Raad 27 Juni 2008, NJ 2016/216, ECLI:NL:HR:2008:BC7669; Rechtbank Rotterdam 6 Januari 2012, LJN BV5469,
ECLI:NL:RBROT:2012:BV5469.
145 E. Knipschild, ‘De Pel-vuistregels bij mediation in arbeidsrecht anno 2014’, above nr.143: Rechtbank Haarlem 05 Augustus 2010, ECLI:NL:RBHAA:2010:BN4350.
146 E. Knipschild, ‘De Pel-vuistregels bij mediation in arbeidsrecht anno 2014’, above nr.143: Gerechtshof
Leeuwarden 2 Februari 2010, LJN BL3726, ECLI:NL:GHLEE:2010:BL3726; Rechtbank Utrecht 17 Februari 2010,
Prg. 2010/84, ECLI:NL:RBUTR:2010:BL5021.
147 Rechtbank Noord Nederland 23 September 2015, AR 2015/1838, ECLI:NL:RBNNE:2015:4491. 148 Rechtbank Midden-Nederland 21 December 2015, JAR 2016/26, ECLI:NL:RBMNE:2015:9189. 149 Rechtbank Amsterdam 6 Oktober 2015, AR 2015/2003, ECLI:NI:RBAMS:2015:7278.
150 Rechtbank Amsterdam 21 Maart 2013, LJN BZ5149, ECLI:NL:RBAMS:2013:BZ5149.
151 Tweede Kamer, Memorie van Toelichting Wet bevordering mediation concept consultatie, 2016.
152 The addendum in Article 111 CPR and Article 278 CPR may impose an obligation on the parties (Artikel 111 Rv jo. Artikel 278 Rv).
considers this suitable, but the parties are not obligated to use mediation.153 If the parties are
willing to try mediation, the judge will refer them to a mediator. If the mediation process does not lead to an agreement, the judge will still settle the issue.
The Directive 2008/52/EC154 was the first step taken by the EU towards providing minimum key conditions for cross-border mediation. According to Article 1,155 the Directive No. 2008/52/EC has a clear aim to facilitate the access to and encourage the use of mediation. The Member States are expected to establish at least a minimum framework that stimulates mediation. In this way, the Member States will have a harmonized cross-border commercial dispute resolution, which will facilitate the transactions within the EU and protect the consumers. The Member States can apply the Directive to internal mediation procedures as well.156 This Directive calls on Member States and the courts to encourage mediation. Cross-border disputes are those in which at least one of the parties lives in a Member State other than the Member State of their counter party. By not requiring Member States to implement specific rules, the States are given the space to implement the most suitable framework that fits their requirements and needs.
According to Article 3 of the Directive,157 mediation may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State. 158 If a dispute is suitable for
mediation, the parties by themselves or on the initiative of the court can be referred to a
mediator. Article 4 calls upon the States to undertake concrete steps to develop a code of conduct and a monitoring mechanism and ensure that mediators are well trained.159
On the basis of Article 5, the court may invite parties to use mediation or at least to attend information sessions on mediation, before or after court proceedings have started.160 It will do so when it considers it appropriate and with regard to all the circumstances of the case. The
Directive leaves it up to the States to adopt mandatory mediation or subject litigants to incentives
153 Within the Code of Civil Procedure a new Article 22a CPR was meant to be added. The first paragraph of Article
22a CPR includes the referral jurisdiction of the judge and must be read in conjunction with Article 111 paragraph 2 CPR and Article 278 CPR (Art. 22a lid 2 Rv).
154 Directive 2008/52/EC, above nr.20. 155 Article 1 of the Directive 2008/52/EC. 156 Ibid.
157 Article 3 of the Directive 2008/52/EC. 158 Ibid.
159 Article 4 of the Directive 2008/52/EC. 160 Article 5 of the Directive 2008/52/EC.
or sanctions. In this way, the Directive encourages the judges to inform litigants more often about mediation and the benefits.161 This also means that in some countries lawyers will also be
obligated to inform and advise litigants about the use of mediation and litigants will have to state in their applications to court whether they have attempted mediation. Incentives and sanctions are meant to motivate parties to use mediation, instead of judicial proceedings. Whether compulsory mediation or incentives or sanctions are implemented by the Member States, the States have to guarantee the right of access to court to the litigants.
One of the main aims of the Directive No. 2008/52/EC, which is set in Article 6, is that all agreements reached through mediation can be enforced in all Member States as if they were the court judgments.162 Article 7 ensures that the mediation process is confidential.163 This is what makes the procedure more accessible to all litigants, as they do not need to worry that any information provided during the mediation will be exposed during the civil proceedings. Countries also need to ensure that litigants that address their dispute through mediation are not prevented from initiating judicial proceedings because limitation periods and the prescription periods have expired during the mediation process.164 Time limitation period should be suspended when the parties agreed to attempt mediation. Additionally, Article 9 requires the Member States to inform the public about mediation.165 All litigants should know about the
advantages of mediation, the costs and about the procedure. All countries were meant to implement the Directive No. 2008/52/EC by May 2011.
As seen above, England and the Netherlands are trying to encourage litigants to see the court litigation as the last resort. In the Netherlands litigants are entitled to bring their case before the court at any time. They are also entitled to terminate a mediation procedure at any time, without having to face any cost sanctions. Only in labour law do they consequences if the refusal was unreasonable. With the introduction of the new bill the parties would be required to consider mediation prior to going to court. In England, in regard to certain cases, parties have less freedom to choose whether or not to use mediation. The litigants are only required to seriously
161 Ibid.
162 Article 6 of the Directive 2008/52/EC. 163 Article 7 of the Directive 2008/52/EC. 164 Article 8 of the Directive 2008/52/EC. 165 Article 9 of the Directive 2008/52/EC.
