Access to Mediation

Marc Simon Thomas

In the NRC Handelsblad a piece written by my colleagues Grootelaar and Van den Bos was recently published on the new mediation legislation. Apart from this article the public debate concerning mediation appears to be at a standstill for some time. The lull before the storm, I suppose. Although the private member’s bills submitted by the (then) member of the second chamber Ard van der Steur Wet bevordering van mediation in het burgerlijk recht, Wet registermediation and Wet mediation in het bestuursrecht are recently withdrawn, the Dutch government has indicated to come up with a bil of its own. This will likely lead to a new stream of articles in newspapers and legal journals. A recurring theme will presumably be the ‘personal responsibility’ and ‘self-reliance’ of citizens. But actually, as I argue in this blog, the obvious ambiguity of these concepts will force us to reflect on the access to mediation.

Preceding what will happen, l have given myself the liberty in this blog to state, in anticipation of the expected controversy, that the legislative proposals were monstrous on certain topics, but that the idea of promoting mediation as an alternative form of conflict resolution certainly offers chances. I have taken that view due to the flexible, informal and human/people oriented character of mediation as a model of conflict resolution, especially when you compare it with the regular court procedure. There has been a lot of critique on the proposals, but that is not the point; there were also benefits. However, whether everyone can be considered sufficiently self-reliant to be able to stand one’s ground during mediation, as presumed by the proposals, I do not know. Maybe most can, but maybe most cannot. The point is that we do not sufficient knowledge yet, in my opinion, to make substantiated claims.

The Council of State – which is very critical in its opinion on the proposals – explicitly supported Van der Steur when it concerns the personal responsibility of citizens (and companies) to solve their own conflicts. Earlier the Second Chamber has also, in an outline policy memorandum modernization of the judiciary, commented on the ‘responsibility’ which parties ‘in the first place (…) bear themselves for the settlement of their disputes’. Parties  should not be allowed to go to court until they have attempted to find a solution for the conflict themselves, according to the current government. This corresponds with a society in which citizens become more assertive and with a government which increasingly calls on citizens personal responsibility and self-reliance.

However in academic literature there is critique on the idea that citizens can – or should –  in principle be held personally responsible for the solving of their conflicts. This merely presupposes citizens who are capable of defending their own interests, which is a too optimistic view of reality. It is questionable whether the average citizen in the Netherlands is actually so self-reliant, according to adversaries. In this debate I would like to take another position: the argument that persons are not that good at defending their own interests, is more a reason in favor than against mandatory mediation.

The criticism on mandatory mediation is based on the idea that arguing parties cannot always be assumed to be equal in terms of power. Power, as it is explained, can lie in someone’s social or economic position, in someone’s social skills, or in someone’s emotional resilience; and these are simply not equally distributed. Mediation could increase a potential power imbalance, precisely because it is a flexible and informal conflict resolution model, with a mediator who stands between the parties. The underlying balance of power could in this way lead to a undesirable outcome, namely an outcome strongly in favor of the stronger party. Assuming that the law protects the weaker party, this outcome would probably not occur in a regular court process. In such cases it is better to have a judge who stands above the parties than a mediator who stands between them, so the argument goes. To be clear, I support the idea that not everyone is equally self-reliant. But I, however, think this involves more than only power, also education, social class and culture play an important role in the solving of conflicts.

When you are talking about power, education, social class and culture in relation to the law, you are talking about the access to justice. About the access to justice a lot is known. The Montaigne Centre has also done research on this topic last year (see also the blog of Hilke Grootelaar). It is clear that ‘personal responsibility’ and ‘self-reliance’ in relation to the access to justice  are currently commonly used terms, but that they do not have a unequivocal meaning; certainly not in practice. The same counts for the idea of ‘access to justice’. It is also clear that not all citizens are capable of truly using their personal responsibility in the solving of a conflict. This is felt strongest by a regular, formal court procedure and less in informal forms of conflict resolution, such as mediation. Obstacles which impede the access to justice are: duration, complexity, costs, language and culture differences. Such obstacles are more prominent within a formal court procedure than with mediation, or we can at least assume that.

This is where a paradox seems to appear: a judge above the parties offers a better guarantee against a lack of self-reliance than a mediator between the parties, but the same judge is due to the same lack of self-reliance much less accessible. I consciously write “…seems to appear’. Because the point is, we do not know that for sure. Are the people who experience an obstacle in the access to justice the same people who have a subordinate position of power in relation to the other party in mediation? That is a relevant question, but difficult to answer. We simply know too little about the self-reliance of people in mediation to be able to say something meaningful about it.

So the question is what the actual state of access to mediation is. To answer this question we need empirical material to support a statement about self-reliance in relation to mediation and the effect thereof on the outcome of the mediation. For the time being I think that mediation makes it possible to avoid the obstacles to the access to the regular, formal justice. This advantage is greater in my opinion than the potential danger of power imbalance that lurks in mediation. I am not a proponent of making mediation mandatory; however, the fact that not everyone is as emancipated and self-reliant, seems to me more of an argument in favor of mediation, than against. But it remains conjectural as long as there is no solid empirical research in the Netherlands on the relationship between mediation and power, education, social class and culture. Should we not start with that?