Judicial dispute resolution in the Netherlands: accomplishments and challenges
- Machteld de Hoon, The Netherlands
- Susan Verberk, The Netherlands
Five years ago the Dutch judiciary experimented with a new method, called ‘customized conflict resolution’. The goal of this method is to diagnose whether there is an underlying conflict to the legal dispute, and if so, to decide with (and not for) the litigants which method of dispute resolution is the best way to come up with a viable and sustainable solution. This method of judicial dispute resolution (JDR) is not so much claim or case oriented but people oriented, tries to come up with a needs-based outcome in stead of a rights-based outcome and focuses on what is needed for the future.
The experiments are part of a broader development of judicial referral to mediation and an increase of judicial settlement in civil cases. Nowadays, also administrative judges have adopted a more problem-solving attitude. Instead of a unilateral focus on the validity of the administrative decision the judges focus on the dispute and address the underlying interests.
At the same time, there are signals that judges experience great difficulties in applying their new found understanding in courts. According to some professionals, the applications of JDR is localized and to a large part constricted to pioneers. Also the Dutch figures on referrals to mediation show a remarkable decline. How can we explain the fact that an increased focus by the courts on underlying issues of disputes goes hand in hand with a decline on referrals to mediation? And how should we see this in the more broader perspective of the challenges of judicial dispute resolution?
In this paper, we explore the following assumption: During the past ten years there has been an extensive change in the way judges think about their role in dispute resolution, but they experience great difficulties in applying their new found understanding in courts. The method we use is explorative. Our data are gathered by (small scale) court observations, interviews and an expert meeting. Also, our analyses are based on relevant research in the field of JDR as well as insights of our own previous research projects.
The four questions that guide our research are: What have been the most important changes in JDR over the last 10 years? In what ways had JDR been translated into concrete judicial behavior/interventions? What barriers restrain the application of JDR? And finally: What opportunities might encourage the application of JDR?
We primarily focus on The Netherlands, but we also reflect on global trends and challenges. Moreover, comparing the Dutch features and challenges of JDR with those of other legal systems sharpens the debate of how to address the challenges of JDR in the near future. Therefore, we also include a comparative paragraph in which we discuss some of the most prominent differences of JDR as it has been established in different legal systems.