DE ROOJJAGTENBERG detem ined on the basis of the income of the parties. If both parties are entitled to legal aid, they both pay a fee based on their income akin to the fee for a court procedure 20 If a procedure is initiated following mediation, this fee does not have b paid again. If one of the parties is not en legal aid, half of the costs of the mediator will be bome by that party In both these two projects, the parties are asked to participate on a voluntary basis.2I Apart from these ma jor projects, there are experiments with mediation n Professional publications Vith the rise and interest in modern med iation also the need for more information and exchange increased. In 1997 the Tijdschrift voor Mediation (Journal for Mediation) appeared as the first joumal purely focussing on mediation. An important purpose of this quarterly is to serve as a forum for mediators and all others who have an interest in the practice and academic study of mediation. There is a great demand for exchange of experiences with(other) mediation professionals. Consequently there is a strong input from the mediation-practitioner The Joumal for Medation has four categories of contributions. The first category encompasses in-depth contributions dealing with mediation from an analytical angle, followed by Mediation in de Praktik(Mediation in Practice). This category is the ultimate ga thering for the practising medator. Here the ins and outs of a mediation case are discussed. The principle learning by doing is the centre of attention in the category with the telling title valkuil(Pitfall). Here medator-mistakes are described and analysed. Each issue concludes with information on mediation workshops and recent developments. The number of ubscriptions of the journal is steadily growing. Its readers are legal professionals accountants, psychologists, architectsetc Another carrier of mediation information is the ADR Nieusbnief(Ad Newsletter), which is published eight times a year. Its main focus is to serve its reader with brief, up to date mediation information and is sent to all NMl-mediators 6 Mediation training and university education The(short) history of mediation teaching in the Netherlands largely runs parallel with the development of modern mediation itself and has become a booming usiness for private training institutions The first, full fledged training programmes took off in the early 1990s. It were private institutions that took the lead in compiling and offering specialist, mediation training schemes. Educational institutions, such as universities, would follow suit later. As a consequence of those private sector init atives, the early programmes were emphasis was and still is on impartingskills At present, there are 10 programmes, which have been certified by the NmI These costs do not cover all legal costs. One may wonder whether parties will tum downa suggestion by a judge to mediate
DE ROO/JAGTENBERG 6 determined on the basis of the income of the parties. If both parties are entitled to legal aid, they both pay a fee based on their income akin to the fee for a court procedure.20 If a procedure is initiated following mediation, this fee does not have to be paid again. If one of the parties is not entitled to legal aid, half of the costs of the mediator will be borne by that party. In both these two projects, the parties are asked to participate on a voluntary basis.21 Apart from these major projects, there are experiments with mediation in divorce and parental access disputes. 5 Professional publications With the rise and interest in modern mediation, also the need for more information and exchange increased. In 1997 the Tijdschrift voor Mediation (Journal for Mediation) appeared as the first journal purely focussing on mediation. An important purpose of this quarterly is to serve as a forum for mediators and all others who have an interest in the practice and academic study of mediation. There is a great demand for exchange of experiences with (other) mediation professionals. Consequently, there is a strong input from the mediation-practitioner. The Journal for Mediation has four categories of contributions. The first category encompasses in-depth contributions dealing with mediation from an analytical angle, followed by Mediation in de Praktijk (Mediation in Practice). This category is the ultimate gathering for the practising mediator. Here the ins and outs of a mediation case are discussed. The principle learning by doing is the centre of attention in the category with the telling title Valkuil (Pitfall). Here mediator-mistakes are described and analysed. Each issue concludes with information on mediation workshops and recent developments. The number of subscriptions of the journal is steadily growing. Its readers are legal professionals, accountants, psychologists, architects etc. Another carrier of mediation information is the ADR Nieuwsbrief (ADR Newsletter), which is published eight times a year. Its main focus is to serve its reader with brief, up to date mediation information and is sent to all NMI-mediators. 6 Mediation training and university education The (short) history of mediation teaching in the Netherlands largely runs parallel with the development of modern mediation itself and has become a booming business for private training institutions. The first, full fledged training programmes took off in the early 1990s. It were private institutions that took the lead in compiling and offering specialist, mediation training schemes. Educational institutions, such as universities, would follow suit later. As a consequence of those private sector initiatives, the early programmes were particularly designed for professionals such as lawyers and psychologists. The emphasis was and still is on imparting skills. At present, there are 10 programmes, which have been certified by the NMI. 20. These costs do not cover all legal costs. 21. One may wonder whether parties will turn down a suggestion by a judge to mediate
MEDIATIONIN THE PAST-PRESENT-FUTURE The conditions for NMi-certification however. are obscure. These 10 NMI certified programmes differ in length, costs, and contents, which makes the selection of the right programme by an interested applicant cumbersome. The average length is six days, while the costs may amount up to 3600 Euro. There is no hardcore contents, shared by all these schemes. This is not surprising. As yet, there are no rules or legislation lay ing down minimum requirements for the teaching of mediation. Basically, training institutions are free in selecting the topics to be taught. The majority, however, seems to pay attention to the Harvard style of negotation, generally considered to be a useful tool for the medator. This style of negotiation is oriented towards win-win solutions by cussing on mterests, instead of rights. This is what a medator is precisely supposed to do: directing the parties towards focussingon their interests Thus far, little thought seems to be given to legal aspects of the mediation practice. This may be regarded as an omission, certa nly now that mediation in many European countries will be practised within the presence of an established legal system. A clarification for this may partly lie in the back ground of the respective rainers: the majority is psychologist At universities, particularly at faculties of law, it were init ially individual staff members who undertook the teaching of mediation. In 1994, for the first time in the Netherlands an optional course (Altemative) Dispute Resolution: Theory and Practice was on offerat the Rotterdam law faculty The ultimate goal of this course is to give the participating students an overall perspective on the emergence and resolution of disputes and the role of aw there in In addition, some practical tra ining is provided through role-plays and other practical exercises, which are supervised by qualified mediators At present, most aw faculties pay attention to mediation and other modes of dispute resolution. However, the format of mediation teaching varies from separate courses to integral parts of existing courses such as civil procedure law The regulatory frameworkfor mediation In Dutch law, there are no specific statutory provisions perta ining to mediation, and 1995 NMI Mediation Rules (as amended in 2000)thus fill a gap, providing standards formediators, disputants, andjudges Three basic principles have been written into the NMI Mediation Rules 2. the mediator must be independent and im partial; and 3. confidentia lity and secrecy are to be observed during and after the mediation, by These three basic tenets, voluntariness, im partia lity and confidentility, can also be found in the 1980 UNCITRAL Model Rules on Conciliation, arguably the world s Fisher R& Ury WGetting to Yes(Houghton Mifflin, 1981)and later editions
MEDIATION IN THE PAST - PRESENT - FUTURE 7 The conditions for NMI-certification, however, are obscure. These 10 NMI certified programmes differ in length, costs, and contents, which makes the selection of the right programme by an interested applicant cumbersome. The average length is six days, while the costs may amount up to 3600 Euro. There is no hardcore contents, shared by all these schemes. This is not surprising. As yet, there are no rules or legislation laying down minimum requirements for the teaching of mediation. Basically, training institutions are free in selecting the topics to be taught. The majority, however, seems to pay attention to the Harvard style of negotiation, generally considered to be a useful tool for the mediator.22 This style of negotiation is oriented towards win-win solutions by focussing on interests, instead of rights. This is what a mediator is precisely supposed to do: directing the parties towards focussing on their interests. Thus far, little thought seems to be given to legal aspects of the mediation practice. This may be regarded as an omission, certainly now that mediation in many European countries will be practised within the presence of an established legal system. A clarification for this may partly lie in the background of the respective trainers: the majority is psychologist. At universities, particularly at faculties of law, it were initially individual staff members who undertook the teaching of mediation. In 1994, for the first time in the Netherlands an optional course (Alternative) Dispute Resolution: Theory and Practice was on offer at the Rotterdam law faculty. The ultimate goal of this course is to give the participating students an overall perspective on the emergence and resolution of disputes and the role of law there in. In addition, some practical training is provided through role-plays and other practical exercises, which are supervised by qualified mediators. At present, most law faculties pay attention to mediation and other modes of dispute resolution. However, the format of mediation teaching varies from separate courses to integral parts of existing courses such as civil procedure law. 7 The regulatory framework for mediation In Dutch law, there are no specific statutory provisions pertaining to mediation, and only a few court decisions on the subject have been published so far. Therefore, the 1995 NMI Mediation Rules (as amended in 2000) thus fill a gap, providing standards for mediators, disputants, and judges. Three basic principles have been written into the NMI Mediation Rules: 1. mediation is based on the continuing voluntary consent of all parties; 2. the mediator must be independent and impartial; and 3. confidentiality and secrecy are to be observed during and after the mediation, by all parties concerned. These three basic tenets, voluntariness, impartiality and confidentiality, can also be found in the 1980 UNCITRAL Model Rules on Conciliation, arguably the world s 22. Fisher R & Ury W Getting to Yes(Houghton Mifflin, 1981) and later editions