ADR and Challenges to Governmental Acton


The 21st meeting of the UIA’s World Forum of Mediation Centers took place in beautiful Amsterdam on June 5 and 6, 2015.  Co-Presidents Fabienne van der Vleugel and Colin Wall welcomed delegates mainly from Europe and the United States.  The first topic discussed was the use of mediation in public and administrative matters as practiced in Netherlands – that is, conflicts arising from challenges to governmental decision making.

One structural obstacle to public conflict resolution is the frequent requirement that parties at the table are not ultimately authorized to commit to an agreement – that they must revert to authorities or officials not at the table in order to effectuate the proposed deal.  Examples were cited of project in Belgium that did not involve critical stakeholders and were driven by policies of resources allocation rather than public need.  George Hanot of Con-Sent ADR noted that such outcomes reflect dispute avoidance rather than conflict resolution.  Pre-mediation and mediation were used in the planning and construction of a bridge in Netherlands that opened four years after it was proposed; by contrast, a proposed bridge in Antwerp has not been begun 20 years after it was proposed.

Hanot proposed that Dutch practices of consensus-building were not easily exercised in Belgium.  He postulated that business mediation in Belgium lags behind the rest of Europe.  Indeed, the reluctance of Belgian leadership to engage in collaborative practices is linked, Hanot believed, to the reluctance of Belgians to engage in such behavior in private disputes.  A current garbage strike in Ghent continues into its third week after city officials refused an invitation to mediate on its second day.

Alex Brenninkmeijer, former Ombudsman of Netherlands, noted the mercantile traditions of Netherlands, which he argued yielded an almost intuitive instinct to resolve disputes early.  The construction of dikes, he argued, was an act of collaboration that constituted not just problem-solving, but existential consensus.  To the Dutch, the traditional mixture of mercantile interests, and the jointly acknowledged value of the city’s growth, reflected personal commitment to the whole, and required mediation of conflicts rather than vindication of individual concerns.  It is an attribute of the Dutch, he argued, that solutions should be found to problems – and the sooner, the better.

Thus, Dutch policymaking is fundamentally a problem-solving process and an integrative method, rather than a means of ensuring that the concerns of the majority or the more powerful prevail.   And the office of Ombudsman is increasingly important in protecting this tradition, as public administration becomes increasingly complex.  He noted certain critical elements of effective interface:  personal contact; respectful listening; and taking seriously the interest of the party seriously.

Dick Allewijn, Senior Judge of The Hague District Court, engages in mediations between public authorities and citizens, and voiced a concern that such communications are perceived and experienced as procedurally fair.  He gave the example of a dispute between neighbors arising from the issuance of a permit to one of them to construct a shed in her back yard.  One threshold question is who is involved in the dispute – is the objecting neighbor angry with the administrative body or with the neighbor?  The administrative body has no interest and no emotions – it simply issues permits upon satisfaction of certain conditions.  The relationship between the objecting neighbor and the government is in part cold (distant, objective, rule-driven, little mutual trust) and in part warm (mutual dependence, no option of cutting each other off).  Usually they manage to understand each other, accommodate each other.  Reliance on postulates like “It’s not fair” and “It’s legal” do not prompt this kind of accommodation.  Real resolution – involving accommodation – requires informal and personal contact and exchange.  Formal procedures must give way to accountability and cooperation, in order to yield outcomes that have civil value.  He particularly emphasized the citizen’s responsibility to acknowledge the authority of the public body, and the respect that authority representative must have for individuals with legitimate concerns.  One understands why Allewijn’s book is called “Fair play on both sides.”

Allewijn related an example of the owner of a house facing a canal, who had anchored a vessel in purported violation of local regulations.  The vessel had been impounded.  Three times he went to court and three times he prevailed; yet his vessel was not returned.  This process took ten years, before the ombuds office was brought in.  While negotiating a resolution, the neutral managed to get a promise to restore the vessel.  Yet, when pressed, the homeowner revealed that he actually did not want the vessel there.  He had understood that a plan was in the works to locate a floating whorehouse in that space, and he had anchored the boat there in an effort to prevent it.  Now, ten years later, such plans had been abandoned and the citizen was persuaded to cease the legal proceedings and to give up on having the boat there.  This was a reasonable — and even ideal — outcome, and one that the courts were incapable of even discovering, much less awarding.

Hearing this discourse with American ears, one is struck by the European sense of “civil authority” and the American understanding of “authoritarianism.”  We were addressing conflicts between those charged with public “law enforcement” and citizens who experience unfair and unjust treatment.  The question boils down to whether the citizen trusts that her concerns can be heard, or that an “interface” exists that will attend to her concerns with respect and a mutual desire to find accommodation.



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F. Peter Phillips
F. Peter Phillips is an arbitrator and mediator practicing through Business Conflict Management in Montclair, New Jersey. He is also the Director of the Alternative Dispute Resolution Skills Program at New York Law School where, as Adjunct Professor, he teaches Alternative Dispute Resolution, Negotiation, and International Commercial Dispute Resolution.

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