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Artikel

Pracademia: a personal account of a mediation clinic and its development

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2020
Trefwoorden mediation clinic, students, practicing, Circle of engagement, Susskind
Auteurs Charlie Irvine
SamenvattingAuteursinformatie

    This article tells the story of University of Strathclyde Mediation Clinic through the eyes of its founder. Taking its first case in 2012, by the start of 2021 it will be providing a free mediation service in 16 of Scotland’s 39 sheriff courts, covering more than half the country’s population. Yet it started with no plan, no budget and a few volunteers. The article makes the case that mediation clinics, like mediation itself, call for improvisation, coining the term ‘pracademia’ to describe how such clinics straddle the two worlds of practice and theory.


Charlie Irvine
Charlie Irvine has been working as a mediator since the early 1990s; he developed and runs the Mediation and Conflict Resolution masters programme at University of Strathclyde Law School, Glasgow. He is also Director of Strathclyde Mediation Clinic. His academic work is focused on mediation and justice, in particular the neglected justice reasoning of ordinary people.

Nadja Alexander
Nadja Alexander is Professor of Law (Practice) at Singapore Management University School of Law and Director of the Singapore International Dispute Resolution Academy (‘SIDRA’). She may be contacted at

Shouyu Chong
Shouyu Chong is a Researcher at SIDRA, and may be contacted at

    In this article, the author discusses mediation law and practice in Australia, with a focus on commercial disputes. Statistical data collected in several Australian jurisdictions suggest that mandatory referral works out positively. The author concludes with some observations as to the potential usefulness of the Australian model for court-referred mediation in Europe.


Justus Hoefnagel
Justus Hoefnagel is advocaat bij Linklaters LLP in Amsterdam en werkte van eind 2017 tot eind 2019 in Australië bij Allens, een advocatenkantoor in Perth, West-Australië, in het kader van een tweejarig secondment. Hij werkte daar mee aan de behandeling van procedures ter zake commerciële geschillen bij Australische rechtbanken.
Artikel

A Glance at Mediation in German Administrative Courts

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 4 2019
Trefwoorden Germany, in-court mediation, administrative courts, consensus-oriented
Auteurs Max-Jürgen Seibert en Matthias Keller
SamenvattingAuteursinformatie

    The article gives an overview of mediation in German administrative courts. It deals with the legal basis as well as the organisation of mediation within the courts. The special features of mediation with an administrative law background are explained. By means of examples, the authors make clear that there is more room for alternative dispute regulation in public law than one might imagine.


Max-Jürgen Seibert
Max-Jürgen Seibert is a judge-mediator at the Higher Administrative Court of North Rhine-Westphalia.

Matthias Keller
Matthias Keller is a judge-mediator at the Administrative Court in Aachen.

    On 25 June 2018 the United Nations Commission on International Trade Law (UNCITRAL) finalised two instruments on international commercial settlement agreements resulting from mediation.
    This article presents an insider’s view of this process, from the inception of the project to its completion in 2018. It will present the different stages of this process, from the discussions on the proposal to the actual discussions and negotiations and their different phases, including the agreed main features of the two instruments.


Norel Rosner
Norel Rosner works in the Directorate General Justice and Consumers of the European Commission. He was involved in the UNCITRAL project on the enforceability of international commercial settlement agreements as negotiator on behalf of the European Union.
Artikel

An Introduction to the Singapore Convention on Mediation – Perspectives from Singapore

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 4 2018
Trefwoorden Singapore Convention, Dispute resolution, Uncitral, Enforcement
Auteurs Nadja Alexander en Shouyu Chong
SamenvattingAuteursinformatie

    Following a retrospective of the road towards the Convention, incorporating some Singaporean inside views, the authors provide a detailed analysis of the envisaged grounds for refusal of mediated settlements. The authors also highlight various issues around the very concept, and proof, of mediation. These issues are fundamental, as only settlements ensuing from mediation are covered. Another significant aspect is the absence of any provisions pertaining to the status of agreements to mediate, the contract situated at the entry side of mediation.


Nadja Alexander
Nadja Alexander is Professor of Law (Practice) at Singapore Management University School of Law and Director of the Singapore International Dispute Resolution Academy (‘SIDRA’). She may be contacted at nadjaa@smu.edu.sg.

Shouyu Chong
Shouyu Chong is a Researcher at SIDRA, and may be contacted at sychong.2013@smu.edu.sg.

Annie de Roo
Annie de Roo is associate professor of ADR and comparative law at Erasmus University Law School in Rotterdam, editor-in-chief of TMD, and vice chair of the exams committee of the Mediators Federation of the Netherlands MFN. She has published extensively on mediation and has inter alia been a Rapporteur three times for the European Commission on the use of mediation in employment disputes.

Elisabetta Silvestri
Elisabetta Silvestri is Associate Professor of Italian Civil Procedure and Comparative Civil Procedure; Scientific Director of the postgraduate program on Mediation and ADR, Department of Law, University of Pavia. Co-Director of the annual seminar ‘Public and Private Justice’, Inter-University Centre, Dubrovnik, Croatia; member of the Scientific Advisory Board of Almo Collegio Borromeo, Pavia. She graduated from the University of Pavia and received a LL.M. degree from Cornell Law School. She is a member of the European Law Institute and the International Association of Procedural Law. She has written on Italian civil procedure and a variety of topics in the field of comparative procedure. She has lectured extensively in Italy and abroad; she is a member of one of the Working Groups established by the European Law Institute and UNIDROIT for the development of the project ‘From Transnational Principles to European Rules of Civil Procedure’.

Annie de Roo
Annie de Roo is associate professor of ADR and comparative law at Erasmus University Law School in Rotterdam, editor-in-chief of TMD, and vice chair of the exams committee of the Mediators Federation of the Netherlands MFN. She has published extensively on mediation and has inter alia been a Rapporteur three times for the European Commission on the use of mediation in employment disputes.

Rob Jagtenberg
Rob Jagtenberg is senior research fellow at Erasmus University and has published frequently on the relationship between public and private justice. He has been involved in research commissioned by the Worldbank, the Netherlands Council for the Judiciary, and various Dutch Ministries including the MoJ funded national project on court-connected mediation.
Artikel

Mediation case law in Germany – an overview

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 4 2017
Trefwoorden Case law, Germany, Voluntariness, Confidentiality, Neutrality
Auteurs Ulla Gläßer
Auteursinformatie

Ulla Gläßer
Prof. Dr. Ulla Gläßer, LL.M., holds a full professorship of mediation, conflict management and procedural theory at the European University Viadrina Frankfurt (Oder)/Germany. She is academic director of the Institute for Conflict Management and the postgraduate, interdisciplinary Master’s Program on Mediation at the European University. Ms Gläßer is teaching mediation, negotiation and conflict management skills at various universities and numerous other institutions in Germany and abroad. She has published broadly on mediation methodology, the legal framework of mediation, quality assurance of mediation and other ADR procedures and the establishment of mediation and ADR procedures in different realms of society. She also is editor of two Publication Series on Mediation and Conflict Management and a comprehensive commentary on the German Mediation Act and corresponding relevant regulation. As a practical mediator and facilitator, Ms Gläßer supports dispute resolution and decision making processes within or between organisations/corporations.

Bryan Clark
Bryan Clark is a Professor and former Head of School in the Law School, University of Strathclyde, Glasgow, UK. He is a socio-legal scholar and commercial lawyer with interests particularly in the fields of mediation and its interaction with the law, courts, civil justice and the workings of judges and lawyers. He has published widely in these fields and presented a wide range of papers at national and international conferences and seminars. He is Chair of the Accreditation and Validation of Relationships Scotland, Academic Committee Member of the English Civil Mediation Council, Board Member of the Asian Mediation Centre and former Board Member of Scottish Mediation.
Artikel

Mediation on trial: Dutch court judgments on mediation

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 4 2017
Trefwoorden Case law, The Netherlands, Voluntariness, Confidentiality
Auteurs Annie de Roo en Rob Jagtenberg
Auteursinformatie

Annie de Roo
Annie de Roo is associate professor of ADR and comparative law at Erasmus University Law School in Rotterdam, editor-in-chief of TMD, and vice chair of the exams committee of the Mediators Federation of the Netherlands MFN. She has published extensively on mediation and has inter alia been a Rapporteur three times for the European Commission on the use of mediation in employment disputes.

Rob Jagtenberg
Rob Jagtenberg is senior research fellow at Erasmus University and has published frequently on the relationship between public and private justice. He has been involved in research commissioned by the Worldbank, the Netherlands Council for the Judiciary, and various Dutch Ministries including the MoJ funded national project on court-connected mediation.
Artikel

Enforceability of mediation clauses in Belgium and the Netherlands

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2017
Trefwoorden Enforceability, Mediation clauses, contracts
Auteurs Ellen van Beukering-Rosmuller en Patrick Van Leynseele
SamenvattingAuteursinformatie

    In this article authors discuss (possible) legal means and methods aimed at making mediation clauses effective and/or enforceable. In particular Belgian and Dutch law are examined. In part attention is also paid to English, French and Italian law. Against the background of recent EU-legislation the validity of mediation clauses is discussed as well, with a focus on consumer related disputes. By reviewing US case law with regard to the duty to participate in good faith in the mediation process, the authors also outline the limits of this concept for the effectiveness of mediation clauses. The central theme of the enforceability of mediation clauses has been looked at both from a procedural as from a financial angle. Substantial differences can be noted between the Belgian and the Dutch approach towards what courts should do when dealing with a dispute in which parties have previously agreed to mediation. Belgian law provides in art. 1725 § 2 Judicial Code that the court, if so requested by the defendant, is in principle obliged to suspend the examination of the case until the mediation has taken place. According to current case law, the situation in the Netherlands is that mediation clauses are in principle not enforceable (Supreme Court 2006). Following the most recent legislative proposal regarding mediation (July 2016) the court should examine whether mediation can still have an added value in case one party refuses to take part in a mediation as provided for in a clause invoked by the other party, prior to (possibly) proposing mediation. Based on the plans repeatedly announced by the Belgian Minister of Justice, it is likely that there will soon be an amendment to the mediation provisions in the Judicial Code that will allow courts to ‘force’ mediation upon the parties, even in the absence of a mediation clause. If this becomes the rule, judges would be well advised to exercise this power with due care. In the authors’ opinion the Dutch approach (as suggested in the most recent legislative proposal) in connection with mediation clauses, consisting in having the court examine whether mediation may (still) have an added value for the parties, could serve as a good guideline for the Belgian judges to use.


Ellen van Beukering-Rosmuller
Ellen J.M. van Beukering-Rosmuller is Universitair Docent Burgerlijk Procesrecht, Universiteit Leiden, Faculteit der Rechtsgeleerdheid.

Patrick Van Leynseele
Patrick H. Van Leynseele is lid van de balies van Brussel en New York en partner in het Brussels advocatenkantoor DALDEWOLF, een referentie inzake ADR. Met als achtergrond het ondernemingsrecht werkt hij als litigator en arbiter in internationale zaken. Hij schreef verschillende artikels inzake mediation en Med-Arb in vooraanstaande juridische tijdschriften.
Artikel

Conciliation Between Lawyer and Client (Consumer) at the Czech Bar Association

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 1 2017
Trefwoorden Legal fees, Consumer dispute, Czech Republic, Czech Bar Association, Professional secret
Auteurs Martina Doležalová
SamenvattingAuteursinformatie

    The 2013/11/EU Directive on alternative dispute resolution for consumer disputes has forced the bar authorities in all European countries to think about the implementation of a dispute resolution mechanism to handle disputes between lawyers and their clients. The fear, if not done, would be that disputes between lawyers and clients would fall into the general consumer dispute resolution mechanisms, which many felt would not be adapted to the peculiarities of disputes between lawyers and clients, in particular concerning the proper respect of professional secrecy. Hence the need for the bars to develop their own system. The Czech Bar Association has been among the first to propose such mechanism to the Ministry of Industry and Trade. This article describes the broad outlines of the system.


Martina Doležalová
Martina Doležalová, PhD., is a lawyer and registered mediator, conciliator in consumer disputes, head of the ADR section at the Czech Bar Association.
Artikel

A Distorted Mediation Landscape: Judicial Mediation in the Chinese Civil Courts

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2016
Trefwoorden Chinese civil justice, Mediating civil and commercial disputes in China, Comparative civil procedure, Judicial behaviour in Chinese civil courts
Auteurs Peter Chan
SamenvattingAuteursinformatie

    Mediation plays a critical role in the development of any civil justice system. The positive effects of mediation could only manifest if the process is protected in ways that allow parties to truly be able to choose what is best in their interests and explore options free from interference from anyone else. The Chinese legal culture, coupled with a systemic distortion of the function of mediation during the period between March 2008 and March 2013, made it very difficult to develop an authentic mediation system that places party autonomy and other core principles at the heart of the process. As much as the leaders of the Supreme People’s Court today are aware of the need to strengthen the courts role in declaring legal norms and enforcing rights, it is argued that courts (especially lower courts) are likely to continue to use judicial mediation for institutional or strategic purposes.


Peter Chan
Peter Chan is Assistant Professor, School of Law, City University of Hong Kong. He received his PhD in June 2016 from Maastricht University under the supervision of Prof. dr. C.H. van Rhee.

    The cost of conflicts in the Netherlands between civil parties or individuals and the government add up to more than 12 billion Euro. For this calculation, a framework has been developed to distinct between three cost categories: Subject (parties) cost, System cost (e.g. court) and Consequential cost. The latter category represents more than 50% of the total cost, the majority of which are born by commercial parties and employer. The government bears 12,5% of the total cost. The impact on insurance companies could not be estimated but is suspected to be substantial. It are these three parties who in concert should fund further investigation and develop initiatives to reduce the financial and human cost of conflicts. It is to be investigated which incentives are required to make this game change to take place.


Ivor Brinkman
Ivor Brinkman (1968) is Registeraccountant en Registermediator. Mede op grond van eigen observaties, aangevuld met uitgebreid onderzoek naar die van anderen, is hij tot de conclusie gekomen dat de impact van conflicten op mensen en organisaties groot is en dat de samenleving lijkt te juridiseren. Om dit tegen te gaan heeft hij Vantage opgezet dat zich richt op het ontwikkelen en verstrekken van instrumenten en diensten om mensen en organisaties te helpen anders om te gaan met conflicten door deze vroeger te herkennen, vaardiger te worden om escalatie te stoppen en meer zelfstandig in staat te zijn om tot oplossing te komen. Vooral het voorkomen van conflicten heeft zijn bijzondere interesse. Zie ook www.vantage.nl.
Artikel

The Belgian Law on Mediation, in light of the UNCITRAL Model Law on International Commercial Conciliation and of the UNCITRAL Project on Enforceability of Settlement Agreements

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 1 2015
Trefwoorden UNCITRAL Model Law on International Commercial Conciliation, Belgian Mediation Act, U.S. proposal made to UNCITRAL to elaborate international convention for enforcement of mediated settlement agreements
Auteurs Judith Knieper en Corinne Montineri
SamenvattingAuteursinformatie

    This contribution sets out the work done so far by UNCITRAL in the field of conciliation/mediation, but also examines whether the Belgian Mediation Act is compatible with the UNCITRAL Model Law on International Commercial Conciliation of 2002. Finally, it gives an introduction to the proposal made by the U.S. delegation to the UNCITRAL Commission to elaborate an international convention on the enforcement of mediated settlement agreements.


Judith Knieper
Judith Knieper is Legal Officer in the International Trade Law Division of the Office of Legal Affairs of the United Nations, Vienna.

Corinne Montineri
Corinne Montineri is Legal Officer in the International Trade Law Division of the Office of Legal Affairs of the United Nations, Vienna, and Secretary of UNCITRAL Working Group II on Arbitration and Conciliation.

    ADR in Kenya is traceable to the pre-colonial era. Before colonial rule, African communities applied traditional justice systems in the resolution of disputes. Some of these traditional justice systems are what are formally called ADR. It is through the imposition of formal justice systems by the British that certain ADR mechanisms were recognised in Kenya. In recent times, ADR is one of the commonly used avenues in accessing justice in Kenya. ADR in Kenya is growing at an unprecedented rate courtesy of its recognition in law, inaccessibility of courts and tribunals, backlog of cases and increased commercial activities requiring the use of ADR processes. Consequently, there are efforts by government and the private sector aimed at promoting ADR in Kenya. These efforts suggest that the future of ADR in Kenya is promising. In this article, the authors discuss the growth, development and practice of ADR in Kenya highlighting some of the likely challenges and opportunities in its use.


Francis Kariuki
Francis Kariuki is a Lecturer at Strathmore University Law School.

Linet Muthoni
Linet Muthoni is the Executive Officer of the Strathmore Dispute Resolution Centre.

    Colombia has been a territory with some social and political difficulties which have affected several dynamics of the community as well as the legal security in almost all levels of the Colombian society. The alternative dispute resolution mechanisms arise as a response for all the gaps that such circumstances produce in the country and as useful tools to solve numerous disputes in different fields. The Chamber of Commerce of Bogotá, through its Arbitration and Conciliation Center founded in 1983, is making a permanent bet to support the Colombian citizens’ coexistence in the schools, in the neighbourhoods, in the companies that provide jobs as well as benefits to the city and to the whole country. Clever strategies have been developed through the years with three purposes: change the culture about the alternative dispute resolution methods, provide confidence in using them and change the way the people manage their conflicts.


Rafael Bernal Gutiérrez
Rafael Bernal Gutiérrez is director of the Arbitration and Conciliation Center of the Chamber of Commerce of Bogotá. His expertise in ADR counts more than 30 years. He has participated in the construction of legal frameworks for ADR in different countries all across Latin America. He is lecturer in ADR topics in Colombia and as well internationally.
Artikel

The Use of Mediation in Tax Disputes – UK Position

Tijdschrift Nederlands-Vlaams tijdschrift voor mediation en conflictmanagement, Aflevering 3 2014
Trefwoorden mediation, Tax disputes, HMRC, international arena
Auteurs Peter Nias en Nigel Popplewell
SamenvattingAuteursinformatie

    The article looks at the background to the use of mediation as a tool for resolving tax disputes between the UK tax authorities (HMRC) and UK taxpayers. It explains HMRC's litigation and settlement strategy which comprises the broad structure within which HMRC must operate to resolve such disputes. It then looks at specific guidance published by HMRC dealing with ADR and mediation in particular. The operational elements of this guidance, and the authors practical experience of them are then described, as are their views, with the limitations of the process. Finally the authors look at the application of ADR in the international arena.


Peter Nias
Peter Nias is a barrister and CEDR accredited mediator. He is a member of Pump Court Tax Chambers in their ADR Unit, a member of CEDR’s Tax Panel of mediators and has collaborated with CEDR to create the Tax Disputes Resolution Hub. Until 2012 he was a partner and solicitor in the law firm of McDermott Will & Emery UK LLP, where he was head of the Tax Practice and its Tax Dispute Resolution Group. Since qualifying in 2010 as an CEDR Accredited Mediator, Peter has been focussing his time advising clients on mediation and premediation strategies for resolving tax disputes. He has been working with HMRC’s Dispute Resolution Unit in developing a collaborative dispute resolution (CDR) Programme for complementing their Litigation and Settlement Strategy.

Nigel Popplewell
Nigel Popplewell is a partner in law firm, Burges Salmon LLP. He is a Fellow of the Chartered Institute of Taxation, a CEDR Accredited Mediator, and deals with all aspects of UK tax, and disputes with UK tax authorities.
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