Groot, G. de

Zwart-Hink, A.M.

DSpace at VU

33rd IALMH Congress  -  Amsterdam 14-19 July 2013 
Solution focus in the Netherlands 
Recent developments in Dutch criminal, civil and administrative law  
Dineke de Groot  &  Andrea Zwart-Hink 
Amsterdam Centre for Comprehensive Law 
2 
DOES TJ EFFECT DUTCH LAW AND PRACTICE? 
•  TJ is part of the Comprehensive Law Movement  
•  The ambition is to make law and practice ‘more humane, 
therapeutic, beneficial, humanistic, healing, restorative, 
curative, collaborative, and comprehensive’  
(S. Daicoff, Afterword: The Role of Therapeutic Jurisprudence in the 
Comprehensive Law Movement, in: D.P. Stolle, D.B. Wexler and B.J. Winick 
(eds.), Practicing Therapeutic Jurisprudence: Law as a Helping Profession, 
Durham, NC: Carolina Academic Press, 2000) 
•  Do recent court innovation initiatives in the Netherlands in 
the areas of criminal, civil and administrative law comply  
with this ambition or ideas of the Comprehensive Law 
Movement / Therapeutic Jurisprudence? 
3 
FRAME: PRINCIPLES OF CONFLICT RESOLUTION  
§   Right of access to the courts 
§  Voluntariness 
§  Transparency 
§  Accessibility (financial restrictions, availability of legal assistance) 
  
§  Fair trial 
§   Hearing 
§   Equality of arms 
§   Public nature of court sessions / Confidentiality  
§   Procedure within a reasonable time 
§   Etc. 
4 
DEVELOPMENTS IN CRIMINAL LAW 
§  Restorative justice initiatives  
§  Victim – offender mediation 
5 
DEVELOPMENTS IN CRIMINAL LAW 
Restorative justice 
 
Focuses on the needs of victims, offenders and the 
involved community,  
NOT on satisfying abstract legal principles or 
punishing the offender.  
6 
DEVELOPMENTS IN CRIMINAL LAW 
Restorative justice 
Past  
Victim did not take an active role in the process, other than reporting the  
crime or giving evidence in court.   
 
Developments since 1980’s  
§   Victim Support Netherlands (Slachtofferhulp Nederland)  
 Offers practical, emotional and legal support to victims 
§   1992: Victim Support Act: right to join criminal proceedings as a civil 
 party to claim damages 
§   2005: Introduction of the victim’s right to speak  
§   2011: Act on the strengthening of the position of the victim in criminal 
 procedure  
 
7 
DEVELOPMENTS IN CRIMINAL LAW 
Victim – offender mediation (pilot) 
 
The department of justice and the criminal court in Amsterdam have 
experimented with mediation in criminal law cases in 2010/2011.  
 
§   26 cases (both adult and juvenile offenders) 
§   17 cases (65%) led to an agreement between victim and offender 
8 
DEVELOPMENTS IN CRIMINAL LAW 
Victim – offender mediation  
 
Implemented in 2012:  
 
Article 51h Code of Criminal Procedure  
Stimulates victim – offender mediation 
 
9 
DEVELOPMENTS IN CRIMINAL LAW 
Evaluation in the context of therapeutic jurisprudence 
 
Position of victims has changed:  
§   victims now have a strong position in criminal procedures 
§   increased attention for victims non-pecuniary needs  
§   Victim Support Netherlands offers practical, emotional or legal support  
 
Offenders:  
§   are encouraged to take responsibility for their actions and to repair the 
financial or emotional harm they have done.  
10 
DEVELOPMENTS IN CRIMINAL LAW 
Evaluation in the context of therapeutic jurisprudence 
 
Questionable effects: 
  
§  Offenders engage for strategic reasons 
§  Inequality  
§  Mediation prior to trial infringes with the presumption of innocence 
11 
DEVELOPMENTS IN CIVIL AND ADMINISTRATIVE LAW 
•  Recent initiatives in The Netherlands to 
improve facilities for dispute resolution in 
civil and administrative cases  
•  Relation to ambitions of the Comprehensive 
Law Movement (including TJ)? 
12 
DEVELOPMENTS IN CIVIL LAW 
 
•  Court annexed mediation 
•  The use of mediation and negotiation skills 
by judges 
•  Tailormade dispute resolution 
13 
THE 7-I-MODEL 
The 7-i-model offers with 7 viewpoints an instrument to      
get an integral picture of a conflict : 
Issues     what is at stake? 
Individuals   who are concerned? 
Interdependency  dependent relations?  
Interaction    behavior, communication 
Implications   of the conflict (what if it is not solved)? 
Institutions   interests in surroundings of the conflict 
Interventions   already tried / to undertake  
(Giebels & Euwema, Conflictmanagement, 2006, p. 21 e.v.) 
14 
DEVELOPMENTS IN CIVIL LAW 
•  The judge as a conflict manager 
•  Litigation / conciliation 
•  Access to justice; drastic cutbacks 
•  Innovation: digitizing; time to confirm the mix 
of negotiation/adjudication  
 
15 
DEVELOPMENTS IN ADMINISTRATIVE LAW 
•  Administrative law: e.g. social security, tax 
law, environmental law, property 
development law  
•  Tailor made dispute resolution  
•  Project ‘A pleasant contact with the 
authorities’  
 
 
16 
‘a pleasant contact with the authorities’  
•  Administrative bodies use mediation techniques in the case 
of complaints or objections:  
•  quick and personal contact (by telephone) with citizens 
•  open, honest and interested attitude  
•  use of communication techniques 
•  Trend from procedure focused to solution focused  
 
17 
NEW CASE MANAGEMENT 
•  Courts in first instance 
•  early oral hearing 
•  active judges  
•  responsibility of parties to contribute to dispute solving 
•  discussion about factual and legal aspects / interests 
•  final solutions 
•  tailor made  
•  in due time 
•  Pilots successful; national implementation (evaluation!) 
18 
CONCLUSION 
•  Developments in dispute resolution in The 
Netherlands show a relation to the ambition 
of the Comprehensive Law Movement 
including TJ in the drive in different areas of 
law to mix dispute resolution mechanisms 
in order to combine the best of two worlds, 
negotiation and adjudication.  


Solution focus in The Netherlands. Recent developments in Dutch criminal, civil and administrative law

Abstract

Similar works

Full text

Available Versions

DSpace at VU

DSpace at VU