Samenvatting

This article compares two studies on the compliance with judicial decisions and friendly settlements in Dutch civil court procedures. A new study (Eshuis 2009) finds a higher rate of compliance, which can largely be attributed to the selection of cases. The older study (Van Koppen & Malsch 1991) included a high number of default judgments, which are associated with a low level of compliance, while friendly settlements – associated with a high level of compliance – were excluded. The new study finds full compliance rates of 31% for default judgments, 74% for judgments in defended cases and 85% for friendly settlements. The high compliance with friendly settlements suggests these settlements are ‘better’ outcomes; however, the difference in compliance can well be explained by selection effects. Interviews reveal that many friendly settlements are not the harmonious solutions one might expect.
The new study finds no solid relation between compliance and procedural or distributive justice. In two relevant ways the conditions in the ‘real life’ judicial procedure are different from those in experimental research in which such relations are found. First, a large part of the non-compliance is caused by an inability of parties to comply. These participants may find the procedure and outcome fully ‘just’, but still won’t comply. Second, for those who can comply, there is no free choice on whether to comply or not. There are quite effective means of enforcement for such cases. So, those who can comply will, even if the procedure and its outcome are experienced as fully ‘unjust’.
The first part of the title of the article is a comment on Van Koppen and Malsch’s earlier research. They concluded that winning in court often was a Pyrrhic victory, and the loser would win after all. In the interviews however, few of those who do not comply were found to fit the image of a ‘winner’. The sad conclusion is that in judicial procedures winners and losers do not come in the same numbers; after all, it produces far more losers than winners.