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Bron: Rechtspraak.nl / 25 november 2009

Moving mediation. From mediation to a customized approach.

Toespraak gehouden door mr. G.J.M. Corstens, president van de Hoge Raad, bij de opening van congres Moving Mediation op 19 november 2009

Ladies and gentlemen, I am pleased and honoured to open this congress. It’s splendid to see that you have come to The Hague in such great numbers from far and wide to share your experiences on today’s topic: moving mediation. I am confident that the day will be a great success.

In recent decades the subject of the court system and conflict resolution has become increasingly prominent in the Netherlands. In the Dutch judiciary, awareness has grown that court proceedings are only one of many ways to deal with and resolve conflicts. Other people may have realised this even earlier than we did. Much as a doctor is naturally inclined to stress a medical approach, a lawyer tends to look at a dispute from the standpoint of the law. It is sometimes difficult for us to let go of this reflex.

The rise of alternative methods of conflict resolution has made people look much more critically at the court system. Clearly it has its strengths and weaknesses. It tends, for instance, to press conflicts into a legal mould, possibly squeezing out many things that the parties set great store by. This may even get to the point where the parties can barely recognise the conflict as the one they were involved in, and are dissatisfied with the outcome of the case. Court proceedings also tend to focus on the past, rather than the future.

So while they may bring the legal dispute to a conclusion, they may not necessarily do anything to improve personal relations between the parties, who may have to get along with one another in the future. A court case can even make the parties’ relations much worse.

Mediation, one of the other ways of resolving conflicts, addresses these shortcomings. After all, in mediation it is the parties themselves who decide what is important and what isn’t, and how the dispute should be identified and defined. Mediation involves looking at people’s real interests and seeking on that basis the best possible solution, one that all those involved can live with. This may make it possible to repair relationships, so that the parties can once more get along with one another.

This sounds wonderful. But as I’m sure you know, mediation also has disadvantages. Studies on mediation point out, for example, that it assumes superhuman rationality on the part of those involved, and an equality between them that may be a pure fiction. Moreover, although the role of the mediator is crucial, the parties have no way of assessing his or her work, and outsiders have even less. They have to trust the mediator more or less blindly. And that’s not always an attractive proposition.

Although mediation has some disadvantages alongside its many advantages, I take a positive view of it. It is often a serious alternative, or at least a supplement, to legal proceedings. To maintain an effective system of mediation alongside the traditional administration of justice, however, a good understanding is vital of its disadvantages and limits as well as its advantages. Only a balanced picture makes it possible to choose the right method of tackling and resolving a particular conflict. I’m sure that a big step forward will be taken today in deepening our understanding of the alternatives.

We have a very interesting programme today. I’m looking forward to Ms Pel’s presentation as well as the workshops and panel discussion. By the way, I consider Ms Pel the queen of a kingdom of  mediation that extends far beyond the Netherlands.  As a judge I’m especially interested in the workshop on mediation in criminal cases. In the Netherlands, unlike some countries, courts are not allowed to refer a criminal case to a mediator.

Criminal cases and mediation do not sit together comfortably. Clearly mediation can be a useful complement to criminal proceedings. The question is whether it can be a substitute.

It’s tempting at first to answer in the negative. After all, the criminal law is meant largely to serve the public interest, and the closed nature of the mediation process does not appear to do so.

Nevertheless, one could argue that in some circumstances, if the perpetrator and the victim can work things out between them, society should stand aside. Professor Maurits Barendrecht made two observations on this point in 2003 that can still provide food for thought.

Firstly, there is a possibility that successful mediation between perpetrator and victim could fully meet the victim’s needs. Should the healing that restorative mediation can provide in such cases be sacrificed to the requirements of prosecution? Secondly, restorative mediation can have a much greater chance of success than a criminal investigation, since many offences are ultimately not prosecuted. And some prosecutions end in disappointment for the victim, for instance because of problems with the evidence. In these cases too the question arises: shouldn’t the public interest served by legal intervention come second to the possible recognition that restorative mediation can provide? Responses to these questions should be sought with a great deal of creativity and not too much dogmatism.

I won’t go more deeply into these and similar questions; that would exceed the purpose and scope of these opening remarks. I am sure in any event that these dilemmas will be considered at length in the course of the day, and I look forward to hearing the outcome of your discussion. Unhappily I have to leave soon due to other obligations.

To conclude: as I said before, I see the rise of mediation as a very positive development. So I attach great importance to the goal of this conference: to promote the exchange of knowledge and experience. I hope the things that we learn from one another today will enable us to achieve the best of both worlds.

I wish you an enjoyable and inspiring congress.

Bron: Rechtspraak.nl

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