{"id":1616,"date":"2015-06-15T09:14:37","date_gmt":"2015-06-15T13:14:37","guid":{"rendered":"http:\/\/businessconflictmanagement.com\/blog\/?p=1616"},"modified":"2015-06-15T09:14:37","modified_gmt":"2015-06-15T13:14:37","slug":"adr-and-challenges-to-governmental-acton","status":"publish","type":"post","link":"http:\/\/www.businessconflictmanagement.com\/blog\/2015\/06\/adr-and-challenges-to-governmental-acton\/","title":{"rendered":"ADR and Challenges to Governmental Acton"},"content":{"rendered":"

The 21st<\/sup> meeting of the UIA\u2019s World Forum of Mediation Centers took place in beautiful Amsterdam on June 5 and 6, 2015.\u00a0 Co-Presidents Fabienne van der Vleugel and Colin Wall welcomed delegates mainly from Europe and the United States.\u00a0 The first topic discussed was the use of mediation in public and administrative matters as practiced in Netherlands \u2013 that is, conflicts arising from challenges to governmental decision making.<\/p>\n

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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 \u2013 that they must revert to authorities or officials not at the table in order to effectuate the proposed deal. \u00a0Examples were cited of project in Belgium that did not involve critical stakeholders and were driven by policies of resources allocation rather than public need.\u00a0 George Hanot of Con-Sent ADR<\/a> noted that such outcomes reflect dispute avoidance rather than conflict resolution.\u00a0 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.<\/p>\n

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Hanot proposed that Dutch practices of consensus-building were not easily exercised in Belgium.\u00a0 He postulated that business mediation in Belgium lags behind the rest of Europe.\u00a0 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.\u00a0 A current garbage strike in Ghent continues into its third week after city officials refused an invitation to mediate on its second day.<\/p>\n

Alex Brenninkmeijer<\/a>, former Ombudsman of Netherlands, noted the mercantile traditions of Netherlands, which he argued yielded an almost intuitive instinct to resolve disputes early.\u00a0 The construction of dikes, he argued, was an act of collaboration that constituted not just problem-solving, but existential consensus.\u00a0 To the Dutch, the traditional mixture of mercantile interests, and the jointly acknowledged value of the city\u2019s growth, reflected personal commitment to the whole, and required mediation of conflicts rather than vindication of individual concerns.\u00a0 It is an attribute of the Dutch, he argued, that solutions should be found to problems \u2013 and the sooner, the better.<\/p>\n

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.\u00a0 \u00a0And the office of Ombudsman is increasingly important in protecting this tradition, as public administration becomes increasingly complex.\u00a0 He noted certain critical elements of effective interface:\u00a0 personal contact; respectful listening; and taking seriously the interest of the party seriously.<\/p>\n

Dick Allewijn<\/a>, 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.\u00a0 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.\u00a0 One threshold question is who is involved in the dispute \u2013 is the objecting neighbor angry with the administrative body or with the neighbor?\u00a0 The administrative body has no interest and no emotions \u2013 it simply issues permits upon satisfaction of certain conditions.\u00a0 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).\u00a0 Usually they manage to understand each other, accommodate each other.\u00a0 Reliance on postulates like \u201cIt\u2019s not fair\u201d and \u201cIt\u2019s legal\u201d do not prompt this kind of accommodation.\u00a0 Real resolution \u2013 involving accommodation \u2013 requires informal and personal contact and exchange.\u00a0 Formal procedures must give way to accountability and cooperation, in order to yield outcomes that have civil value.\u00a0 He particularly emphasized the citizen\u2019s responsibility to acknowledge the authority of the public body, and the respect that authority representative must have for individuals with legitimate concerns.\u00a0 One understands why Allewijn’s book is called \u201cFair play on both sides.<\/a>\u201d<\/p>\n

Allewijn related an example of the owner of a house facing a canal, who had anchored a vessel in purported violation of local regulations.\u00a0 The vessel had been impounded.\u00a0 Three times he went to court and three times he prevailed; yet his vessel was not returned.\u00a0 This process took ten years, before the ombuds office was brought in.\u00a0 While negotiating a resolution, the neutral managed to get a promise to restore the vessel.\u00a0 Yet, when pressed, the homeowner revealed that he actually did not want the vessel there.\u00a0 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.\u00a0 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.\u00a0 This was a reasonable — and even ideal — outcome, and one that the courts were incapable of even discovering, much less awarding.<\/p>\n

Hearing this discourse with American ears, one is struck by the European sense of \u201ccivil authority\u201d and the American understanding of \u201cauthoritarianism.\u201d \u00a0We were addressing conflicts between those charged with public \u201claw enforcement\u201d and citizens who experience unfair and unjust treatment. \u00a0The question boils down to whether the citizen trusts that her concerns can be heard, or that an \u201cinterface\u201d exists that will attend to her concerns with respect and a mutual desire to find accommodation.<\/p>\n","protected":false},"excerpt":{"rendered":"

A panel discussion on European practices of mediating disputes between citizens and the government<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,13],"tags":[8,12,33],"class_list":["post-1616","post","type-post","status-publish","format-standard","hentry","category-conflict-resolution","category-international","tag-adr","tag-culture","tag-public-policy"],"aioseo_notices":[],"_links":{"self":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1616","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/comments?post=1616"}],"version-history":[{"count":0,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/posts\/1616\/revisions"}],"wp:attachment":[{"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/media?parent=1616"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/categories?post=1616"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.businessconflictmanagement.com\/blog\/wp-json\/wp\/v2\/tags?post=1616"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}