Objective of the Mediation Promotion Act
The objective of the Act is to promote mediation as an alternative means of dispute resolution, while at the same time maintaining the quality of the procedure. As a quality safeguard, a register of sworn mediators will be set up that will serve as a quality mark. A disciplinary tribunal will also be introduced in case mediators overstep the mark.
Now that the Internet Consultation has ended, the Dutch Mediators Federation (MfN) has published its advice. The MfN is largely in favour of the bill, but has nevertheless made a few critical comments.
Mandatory mediation
The MfN is arguing in favour of the possibility of a judge or an administrative authority issuing a firm (but not mandatory) mediation direction. That direction should stimulate the parties, if the conflict is suitable, first to aim for resolution of their dispute through mediation before applying to the court; mandatory mediation would not be in keeping with the voluntary nature of mediation. The MfN also believes that if parties have agreed (in a mediation clause) to settle their disputes through mediation, it should be possible to obligate them to do so.
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Quality control
The MfN also sets great store by the quality criteria being in keeping with current practice. That may mean, for instance, lower entry requirements for mediators or a longer transitional period before the provisions of the new Act enter into force. The lower entry requirements should lead to an increase in the number of mediators and thereby to the further development of the profession. The transitional arrangement will give current mediators more time to meet the requirements and to be (or remain) included in the register. One of those requirements is a minimum number of mediations per year. Disciplinary action may be taken against mediators who do not meet the stipulated quality requirements; at worst, they may even be deregistered.
Despite these comments, the MfN is all in favour of the bill. I subscribe to that view. Mediation is a form of dispute resolution that should be stimulated to the extent possible in cases that are suitable for mediation, since mediation transcends the legal aspects of a conflict. Mediation makes the parties themselves responsible for reaching a solution and forces them to take the other party’s interests into account in order to solve the conflict. It therefore often leads to solutions that are acceptable to both parties and with which they will be more inclined to comply. A statutory basis for mediation will contribute to the further development of the profession.
In other words: mediate if possible and litigate if (absolutely) necessary.
