presentation by dr. pim albers, at the meeting on fostering inclusive growth and trust in justice...
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Presentation by Dr. Pim Albers, at the Meeting on Fostering Inclusive Growth and Trust in Justice Institutions, 12 November 2014TRANSCRIPT
ADR: European/global
developments and experiences
from the Netherlands DR. PIM ALBERS
INTERNATIONAL EXPERT/CONSULTANT
What is ADR?
• Alternative Dispute Resolution ("ADR") refers to any
means of settling disputes outside of the courtroom.
ADR typically includes early neutral evaluation,
negotiation, conciliation, mediation, and arbitration
(Cornell University Law School).
• Arbitration and mediation are the two major forms of
ADR.
Mediation, arbitration
and conciliation
• Mediation is an informal alternative to litigation. Mediators are individuals trained in negotiations, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject.
• Arbitration is a simplified version of a trial involving limited discovery and simplified rules of evidence. The arbitration is headed and decided by an arbitral panel. To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third. Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel then deliberates and issues a written decision, or arbitral award. Opinions are not public record.
• Like mediation, conciliation is a voluntary, flexible, confidential, and interest based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party. The main difference between conciliation and mediation proceedings is that, at some point during the conciliation, the conciliator will be asked by the parties to provide them with a non-binding settlement proposal. A mediator, by contrast, will in most cases and as a matter of principle, refrain from making such a proposal.
Mediation,
arbitration and
conciliation in
Council of
Europe
countries
• 42 countries (from 47) applies mediation
• 44 countries have different forms of arbitration
• 35 countries have the possibility of conciliation (source: CEPEJ 2014)
Type of mediators (court annexed, private
mediators, public authority, a judge or
prosecutor) and disputes where mediation
is often applied
• In the Council of Europe member states most of the
mediators are private mediators (e.g. lawyers with a
mediation practice)
• Mediation is often applied in: civil and commercial
disputes, family law, administrative law and – to a lesser
extend – in criminal law.
ADR and empirical data
• There is no/limited detailed data available about:
• The number and type of incoming and resolved ADR
cases
• The average success rate of ADR cases
• The average duration of an ADR procedure
• The average costs of an ADR procedure
• The level of trust in ADR, compared with judicial
proceedings
• The total number of incoming ADR cases per year,
compared with the total number of court cases
ADR in the
Netherlands
• Arbitration
• Conciliation
• Mediation
Dutch arbitration Institute
• Approximately 300 arbitrators
• Average duration of an arbitration procedure
takes on the average of nine months (from
request to final award)
• The fees of the arbitration is based on: the length,
financial interest and complexity of the case). The
NAI’s administration fees consist of a fixed sum
calculated on the basis of a scale from € 800
(interest of less than € 100,000) to a maximum of €
25,000 (interest of more than € 30,000,000).
Statistics (Dutch
Arbitration Institute)
2013 2012 2011 2010 2009 2008
Total number of received cases 114 109 147 125 145 140
total number of resolved cases in the same year 39 44 33 33 48 42
number of counterclaims 27 20 36 32 26 35
Arbitration with international parties 49 32 50 32 44 45
Emergency/summary arbitration procedures 11 11 10 9 20 16
Annual report 2013
Financial value of the
case Value in Euros 2013 2012 2011 2010 2009 2008 2007
from € 0 till 100.000 40 32 43 33 39 37 38
from 100.000 till 200.000 12 12 14 7 11 9 16
from 200.000 till 500.000 12 21 33 16 25 25 19
from 500.000 till 1.000.000 15 14 16 16 8 15 11
from 1.000.000 till 2.000.000 11 10 7 17 17 22 11
from 2.000.000 till 5.000.000 8 7 15 17 10 30* 22*
from 5.000.000 till 10.000.000 3 11 4 14 -
from 10.000.000 till 20.000.000 2 10** 8** 15** 16** -
from 20.000.000 till 30.000.000 5
from 30.000.000 and above 2
undetermined 1 0 0 - 5 2
total 114 109 147 125 145 140 117
Source: annual report 2013 Dutch Arbitration Institute
Type of arbitration cases
Delivery of work/services
Labor agreement
Franchise agreement
Lease agreement
Sale/buy of goods/services
Rental agreement
License agreement
Partnership agreement
Insurance agreement
Turn-key projects
the Dutch Foundation for Consumer
Complaints Boards
Responsible for the handling of consumer
complaints (against: lawyers, construction of
houses, electronics and consumer goods, energie
and water,
internet/telecommunication/television, clothing,
real estate services, education, notary),
travel/holiday, transportation, health care services
Number of complaints received in 2013: 5.023 (in
2012 this was: 5.800 complaints)
Statistics
Treatment of complaints (2013) Number %
Judgment 2.162 34
Settlement 1.657 26
Improper filed complaint cases 511 8
Other 168 3
Mediation by experts 178 3
Company not registered by consumer complaint board 244 4
Non eligble cases 75 1
Cases in stock 1.297 21
Total 6.292 100
Handling of cases
Average duration: 3 months
Well founded
17%
Partly founded
6%
Unfounded
23%
Non-eligble
2%
Unauthorized
1%
Settlement at the
hearing
2%
Settlemen
t by
mediators
4%
Settlement proposal
39%
pre-decision
3%
interim-decision
3%
Other (consumer)
complaints
organizations Financial Services Complaints Institute
(KIFID): responsible for complaints in
the field of finance and insurance
National ombudsman: complaints
against government (services)
Ombudsman for children
Mediation (Dutch
mediators federation)
Quality assurance of registered mediators
Training of mediators
Complaint procedures/disciplinary proceedings
MfN-register mediator is a protected title.
Registered mediators are accepted by the
judiciary and the Dutch Legal Aid Commission
(court referral procedures)
Number of registered
mediators
412 617
1018
1814
2756
3926
4550 4551
4945
4293 4476
4296
4015
2949
0
1000
2000
3000
4000
5000
6000
1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2010 2012
Number of registered mediators
Motives for choosing
mediation
70
63
63
58
57
57
43
19
5
16
22
20
24
24
25
26
13
4
6
5
5
8
10
5
13
7
6
8
10
10
10
10
15
18
61
85
0% 20% 40% 60% 80% 100%
Maintaining good relationship with the other party
Prefer to keep the solution in own hands
Expect a better solution due to non-legal approach
Expect a faster solution due to non-legal approach
Cheaper than a judicial procedure
The judicial desk recommended mediation
The possibility to receive legal aid for mediation
The other party suggested mediation
My lawyer recommended mediation
Very important Important Not important Not applicable
Source: monitor mediation 2005 - 2008
Level of satisfaction
3.2
3.3
2.1
3.9
3.8
3.9
3.4
3.4
2.8
4
4
4.1
3.9
3.7
4
4.2
4.2
4.3
0 0.5 1 1.5 2 2.5 3 3.5 4 4.5 5
Duration of mediation
Height personal financial cost
Result of the mediation
Independence of the mediator
Leadership of the mediator
Accuracy of the mediator
Full agreement Partial agreement No agreement
(5 = very satisfied; 1 = very unsatisfied) Source: monitor mediation 2005 - 2008
Raising awareness
Through information leaflets
Websites
Information campaigns
Information campaigns
