What Is It All About? An Overview of the Dutch Research and a Plea for Change

What the reader can expect in this article This article is a translation and a slight elaboration of my inaugural speech.1 Consequently this article takes on a much more narrative form than is usually the case in an academic publication. A central research question, a description of the methodology in finding the answers to this question and the outcome of the research: they are all missing. What can the reader expect instead? In this article I describe what has recently been published in Dutch research on the behaviour and actions of judges during civil oral hearings in Dutch courtrooms in relation to experienced procedural justice and with regard to reaching settlements. I will try to distil what we know and to provide an insight into what we do not know as yet. Then I will pay attention to a new way of handling cases during oral hearings: the search for the underlying conflict. What is this exactly? Do we know, or can we predict what this way of handling oral hearings will do in terms of perceived procedural justice and in terms of settling the case? I will conclude as a legal scientist that we do not know enough to be sure that this approach has a positive effect, although we do have clues pointing in that direction, and that more research is needed. I will advocate, based on my professional experience as a judge, that it is better to move forward and to begin to really train the judiciary in communication techniques and in the management of conflict resolution, because there is much to be gained in these fields and the goal of the judiciary should be to remain connected with what the parties need and want from a modern judge. It is already clear that I am aiming this article at other researchers, especially when I provide a survey of what has already been done and what is still unclear and needs to be unveiled. But I am also aiming this article towards other judges, especially when I stress that their skills are probably not good enough to explore the approach to conflict solving to the fullest, while this approach could be advantageous in terms of procedural justice and in terms of settling the case.


What the reader can expect in this article
This article is a translation and a slight elaboration of my inaugural speech. 1 Consequently this article takes on a much more narrative form than is usually the case in an academic publication.A central research question, a description of the methodology in finding the answers to this question and the outcome of the research: they are all missing.
What can the reader expect instead?In this article I describe what has recently been published in Dutch research on the behaviour and actions of judges during civil oral hearings in Dutch courtrooms in relation to experienced procedural justice and with regard to reaching settlements.I will try to distil what we know and to provide an insight into what we do not know as yet.
Then I will pay attention to a new way of handling cases during oral hearings: the search for the underlying conflict.What is this exactly?Do we know, or can we predict what this way of handling oral hearings will do in terms of perceived procedural justice and in terms of settling the case?I will conclude as a legal scientist that we do not know enough to be sure that this approach has a positive effect, although we do have clues pointing in that direction, and that more research is needed.I will advocate, based on my professional experience as a judge, that it is better to move forward and to begin to really train the judiciary in communication techniques and in the management of conflict resolution, because there is much to be gained in these fields and the goal of the judiciary should be to remain connected with what the parties need and want from a modern judge.
It is already clear that I am aiming this article at other researchers, especially when I provide a survey of what has already been done and what is still unclear and needs to be unveiled.But I am also aiming this article towards other judges, especially when I stress that their skills are probably not good enough to explore the approach to conflict solving to the fullest, while this approach could be advantageous in terms of procedural justice and in terms of settling the case.
To compensate for the narrative approach I have used a significant number of footnotes, sometimes rather lengthy ones.I have tried to replicate the whole picture, so in order to keep up with it, the reader will probably not be in need of these notes.

Explanation of the title of this article
It was in the mid-1990s that I followed a course on presiding over an oral hearing in civil lawsuits.2I had just began my career as a (civil) judge.We practised a great deal during those two training days, playing different roles at would-be hearings.What I most remember after almost twenty years is the key question to the parties, which we had to repeat time and time again: 'what is it really about?' This question aimed to reach another level: the one of the underlying conflict.3

What proceedings am I writing about?
For the reader who is not conversant with the judicial organization in the Netherlands I will provide a very brief overview.For civil cases there are no special courts.Each case must be submitted at one of the eleven district courts.There are four courts of appeal and one Supreme Court.Private law is divided within the courts into family law and other aspects of private law.The oral hearings that I am describing have their place in non-family law cases4 and I focus on the district courts.The majority of civil cases commence with a subpoena, in which the view of the plaintiff is laid down.I will concentrate on this majority.5

Changes to the Civil Procedural Code (CPC) in the Netherlands: goals and effects
The practice of an oral hearing in civil cases has changed since 2002.The oral hearing had and has two goals: gaining information about the case and trying to reach a settlement. 6The day-to-day practice changed with an amendment to the law (Civil Procedural Law Revision Act (Herzieningswet procesrecht burgerlijke zaken)) in 2002.Remarkably, the two articles on the goals of the oral hearing did not change.Other rules, new rules, were adopted and they made reform possible.
The first rule is that in principle an oral hearing takes place after one round of written statements (the plaintiff 's subpoena and the response by the defendant). 7The judge can decide to hold a second round of written statements, instead of an oral hearing.Over the years following the change in the law less and less cases were excluded from the standard method of dealing with a civil lawsuit.Nowadays in all district courts about 90% of all cases in which the defendant actually appears are conducted in conformity with this standard method.
Secondly, a new rule was introduced to the effect that after an oral hearing there is no opportunity for a second round of written statements nor for a session for an oral plea by the lawyers, unless the judge determines otherwise. 8hirdly, rules were incorporated to ensure that the (only) written round was well used.That is, both parties are obliged to give complete and detailed information about the facts of the case and to do so truthfully, and furthermore to provide all their legal arguments and grounds in their first and only written case file. 9In order to be as complete as possible the plaintiff in his subpoena has to counter or contradict all the arguments put forward by the defendant in as far as the defendant has already adduced these arguments in an earlier, pre-trial stage of the dispute.Finally, there is an obligation for each party to hand over all written exhibits with his case file and to mention all the witnesses that this party may call, if necessary. 10ll these rules have led to a substantiated first written round and an oral hearing that in most cases completes the factual information and legal argumentation provided by the parties and their lawyers.
The primary goal of this amendment to the law in 2002 was to shorten the civil procedure in the district courts. 11This objective was attained.In general civil proceedings were shortened by around 40%. 12 Although not actually intended by the legislator, the change in the law had a second effect: direct contact between the judge and the parties. 13This contact appeared to be so important that there is a wide belief both within and outside the judiciary that a party must have his day in court. 14This adage, by the way, is not embraced in every Western European country on the continent.Our neighbours in Belgium, for instance, have no oral hearing as a norm in their civil court proceedings.There are court sessions in which the lawyers enter their plea and make their statements, but the parties themselves are most often absent and, if present, are not allowed to speak and are not asked any questions. 159 See Arts.21 and 111(3) CPC.Before 2002 there were two written rounds and therefore two written case files for each party.It was allowed to withhold information and legal arguments in the first round.An oral hearing -already possible in those days -after this first round was often a leap in the dark for the judge.He did not really know what the dispute in the case exactly entailed, he did not know all the facts, he did not know all the arguments, and he had no knowledge of all the written exhibits.I have to point out that the system for dealing with civil cases in the Netherlands at that time was and still is continental European: not everything has to take place at the hearing, and not everything has to be oral in order to be part of the file.Instead a large part of the file is built up before the oral session and every part can be taken into consideration in order to reach a decision.In this context it is understandable that there is only one court session (the oral hearing) and that these sessions are seldom adjourned and recommenced on another day, and are mostly completed in one to three hours.Very rarely is more time needed.10 See for all this once again Art.111(3) CPC.11 The changes to the law were preceded by experiences in practice from 1996 onwards with the ´versneld regime´ (speeded-up regime), based on the 'Handleiding versneld regime' ('Guidance for the speeded-up regime'), written by the Punt Committee, named after its chairman Punt, in those days a Dutch judge.The report by this committee, entitled 'More efficiency in civil procedures' was presented to the Minister of Justice of the Netherlands on 5 July 1995 and published in a special issue of 1995 Trema, no.7a (the journal for the Dutch judiciary) and in an appendix of 1995 Advocatenblad, no.6 (the journal for Dutch lawyers).This assignment to the committee was given by the Netherlands Bar Association (Nederlandse Orde van Advocaten) and the The Dutch Association for the Judiciary (Nederlandse Vereninging voor Rechtspraak, NVvR) and contained the designing of proposals to streamline civil procedure and make it more efficient.12 See R.J.J. Eshuis, Het recht in betere tijden, Over de werking van interventies ter versnelling van

The relevance of the oral hearing in terms of procedural justice
The day in court and procedural justice Why is this day in court so important?It is because of the relation with procedural justice. 16Let us return to our day in court.Research in the Netherlands has shown a convincing positive relationship between the use of an oral hearing in civil court proceedings and the level of experienced procedural justice. 17shuis organised a written survey and interviewed parties in civil proceedings, both winners and losers, three years after the verdict.One of the distinctions he made was between proceedings with and those without an oral hearing.He concluded that an oral hearing positively influenced all of the researched elements of procedural justice, i.e. informational justice, relational justice and having a voice.This was the experience of both winners and losers in civil court proceedings.

What we do not really know
There is firm proof 18 that procedural justice makes a difference.And yet, much is still to be researched and needs to be clarified.Is there, for instance, a difference between the effect of procedural justice on the appreciation of the individual case and the appreciation of the judiciary in general?Can the element of respect be more important for the parties involved and the element of consistency for the general trust of the public in the judiciary?Respect is experienced in the actual meeting with the judge and no one among the public at large can exclude the possibility of being involved in a case in the future and a predictable way of handling that hypothetical case is important to everyone. 19here are also different views about the importance of procedural justice for compliance with final decisions in civil cases.There are authors who believe that there is no effect: if the defendant who has lost the case cannot pay, then he will not pay.If he can pay, he will end up paying, either voluntarily or not.Procedural justice does not come into play.But the opposite is contended as well. 20 I refer to the articles on procedural justice in general elsewhere in this special issue of the Utrecht Law Review (2014 Utrecht Law Review 10, no.4) for more information on and an explanation of the concept of procedural justice and its subcategories like voice, due consideration and respect.17 R.J.J. Eshuis, 'De daad bij het woord.Het naleven van  ) resulting in the conclusions ´dat mensen meer geneigd zijn om vrijwillig beslissingen te accepteren en te gehoorzamen wanneer zij het gevoel hebben dat de procedure eerlijk is verlopen'.('that people are more inclined to willingly accept decisions and to comply with them when they have the feeling that the Furthermore, I am not aware of any research in the Netherlands focusing on the question of which of the elements of procedural justice are the most relevant in day to day practice in the courtrooms 21 or in what setting the procedure weighs heavier than the outcome. 22or the Dutch judiciary it is nevertheless clear that the outcome is more important than the procedure leading to that outcome.The last national research on 'customer satisfaction' showed that 81% of the 'customers' of the judiciary were (very) satisfied.This result changed to 89% when it was limited to 'customers' who received or expected to receive a favourable outcome and decreased to 55% in the opposite case. 23o why focus on procedural justice?Because it is also clear that experienced procedural justice has an effect on experienced distributive justice.Parties, particularly losing parties, experience a higher level of distributive justice if the level of experienced procedural justice was higher.The winner's level of experienced distributive justice is nonetheless always higher than that of the loser of the case, regardless of the level of experienced procedural justice, so that the outcome is more important than the procedure if one compares the appreciation of the winners with that of the losers. 24ut leaving all these uncertainties and restrictions aside, the objective conclusion is that procedural justice is more than relevant for focusing upon, as long as one does not forget the importance of experienced distributive justice.

Actions and behaviour of the judge at the oral hearing
The effect in terms of procedural justice When we know that an oral hearing is relevant for perceived procedural justice, the question comes to mind of what, exactly, would be the right way for a judge to preside over this hearing.What behaviour influences the experienced procedural justice in a negative or positive way?
From the field research by Van der Linden on 150 hearings we know that a wide variety of elements play a role. 25Factors which were included in that field research are related to the person of the judge procedure was fair').See also T.R. in terms of his or her view on how to carry out his or her profession,26 his or her years of experience, self-estimated negotiation skills, 27 professional knowledge, 28 but also -of course -his or her behaviour and actions at the oral hearing. 29And then it gets even more complicated, because other factors are of influence too, especially the features of the case, the behaviour of the parties and their lawyers included, and the context ('culture') of the specific court.
Van der Linden, Van Tulder and Klijn have analysed all this material. 30Their conclusion is the following: factors that influence perceived procedural justice in a positive way especially correlate with the behaviour of the judge.They mention: the judge introducing himself/herself and the court clerk by name, 31 the explanation at the beginning of the hearing of what will occur, 32 providing a summary of the case, 33 and not interrupting the parties. 34On the basis of other Dutch research I would like to add to his list the summarizing (concerning content or intention) of what the parties are saying, 35 thus the judge showing that he or she has listened to and understood what was said.Furthermore, the authors mention as a relevant factor the competence of the judge and his expertise as perceived by the lawyers.Here there seems to be an effect of authority that led to the outcome that lawyers are more positive in terms of procedural justice than the parties themselves. 36ery remarkable is the fact that other factors were of no influence or only had a minor influence on the perceived procedural justice, according to this analysis.This specifically holds true for the features of the specific case, such as: how far apart the opinions of the parties were in terms of money, how cooperative the parties and their lawyers behaved, the personal relationship between the parties and the balance of power between them.All these and other elements combined to form a rich pallet of the specific features of the case at hand.But these features did not influence -at least not in a statistically significant way -the procedural justice as perceived by the parties.Only the behaviour and the actions of the judge did this.The recipe is simple: judges behaving in the way described will result in high levels of perceived procedural justice -everybody is therefore happy! 37

Effect in terms of reaching a settlement
Unfortunately reality is not that simple.It is not only about procedural justice.Oral hearings are also about trying to reach a settlement.And it shows that -if a settlement will actually be reached -other things are important than only the behaviour and actions of the judge.
Important in this respect is in particular the cooperative attitude of the parties and, even more so, of their lawyers.And, furthermore, it is relevant when the parties take the initiative to ask the judge to provide an informal view of the case (as a kind of provisional opinion).It seems that in doing so that they are demonstrating their willingness to set the negotiations in motion.
Is the behaviour of the judge of no importance then, in terms of reaching a settlement?On the contrary, it certainly is! Indeed, the judge's presumption that a settlement is within reach or should be reached is important.The judge then invests more time and effort in order to have the parties settle the case. 38ecapitulating the statements of the parties 39 also works, as well as giving an opinion about the amount of money that should be involved in a settlement. 40The judge's (provisional) opinions about matters other than the amount of money involved do not influence (in a statistically significant way) the chances of reaching a settlement. 41This is confirmed by the statistical analysis of Van der Linden, Van Tulder and Klijn.
So an oral hearing can be very sound in terms of procedural justice without any extra possibility of reaching a settlement, or vice versa: a settlement is reached in a way which the parties perceive as being very unjust.What works rather well for both is summarizing and having a voice.
But a cooperative attitude by the parties also has an influence.So how should a judge act in order to attain this attitude?The research material of Van der Linden is from 2006-2007. 42And this is relevant, because since then the focus on conflict solving versus dispute resolution has grown.

Conflict solving: the new goal to strive for
Giving attention to the conflict means that the judge not only informs himself about the facts which he needs in order to evaluate the legal dispute, but also looks for a deeper layer.Is there an underlying conflict and what are the interests, needs and wishes of the parties in relation thereto?And, if so, what 37 There is other research indicating that a person who receives information ('the citizen') is indeed of influence.Perceived procedural justice has a positive influence on the trust of the 'citizen' who is not already certain whether he can confide in the authorities.38 This factor has only been registered before the hearing.There was a relation between the judge's estimation of the willingness of the parties to reach a settlement and the time and effort he or she invested to actually reach this settlement during the court session.The relation between the efforts of the judge and the willingness actually shown by the parties to reach a settlement was not measured.There is, however, a strong implication that such a relation exists, because judges subsequently report that a general cooperative attitude by the parties and their lawyers during the court session resulted in them putting more effort into reaching a settlement.See Van der Linden 2015, supra note 25, pp.62-69, especially table 34.39 It seems that even summarizing only on content is relevant, see further note 35, supra.40 This can be a specific amount or a range of amounts the parties can find each other at.41 Van der Linden et al., supra note 25, p. 25.This is also, in my opinion, a remarkable conclusion, because my evidence-based professional experience as a judge tends to persuade me that giving a (provisional) opinion about the judicial positions of the parties should indeed have a major effect on reaching a settlement.The first results of my still ongoing qualitative field research also point in that direction.42 Van der Linden 2010, supra note 25, p. 8. would be the proper outcome? 43Thus, a conflict is broader than a legal dispute.When two or more parties feel dependable on each other, there is a conflict if these parties have aims, aspirations, interests or values that cannot be unified. 44A legal dispute also fits this definition of a conflict, but I will use the term 'dispute' only for the battle in court based upon the claim made by the plaintiff.A 'dispute' is then a judicial conflict.
As the outcome of a dispute, in day-to-day court practice we really only have three options: a verdict, a settlement or a referral to mediation. 45The outcome that the parties seek must be one of these three options, or a combination thereof.Solving an underlying conflict does not mean that there are further options available, but that there is a greater possibility that the parties will reach an optimal solution.Let us give an example to point out the difference between a dispute and a conflict in the same case.
In a case between a taxi association and its former chairman of the board the dispute was about a claim by the former chairman for around € 30,000.He stated that he was entitled to this sum because he had incurred expenses and had worked for many billable hours for the association.During the court session it became clear that the chairman had devoted his best efforts to the association during the previous few years.That did not play a role in the claim or the dispute, however.The new chairman and his board -all four of whom were present at the court session -had recently set out a new direction for and within the taxi association.But the former chairman, a dominant personality, was not willing to give in without a fight.This also did not play a role in the dispute.The former chairman mobilised the members of the association, the taxi drivers, and two camps therefore emerged.Ultimately the former chairman lost the battle and he was forced to leave a now divided association.This also did not play any role in the dispute.
The dispute was indeed merely about money and came down to details about the activities undertaken, the necessity of those activities, the reasonable amount of time needed for the necessary activities and evidence as to the expenses incurred.
The underlying conflict, on the other hand, together with the related interests, needs and wishes, was about something entirely different.The former chairman had an interest in seeing a sign of recognition, which would serve his need to leave the association with his head held high (a rebuilt positive image).The board had an interest in demonstrating leadership by handling the dispute in a reasonable way, which would serve its need to end the existence of the two camps in its divided association (a rebuilt unity).The dispute was settled by means of addressing the needs in the conflict.One wish served both parties' needs remarkably well: paying an amount of money, any amount.After this conclusion was reached the discussion over the hours expended and the receipts for expenses stopped immediately.The parties were able to agree on a figure of about 10% of the original claim.
In this example the case about the conflict is different from the case about the dispute.It would be a misunderstanding, however, to define every underlying conflict as a case in itself.As soon as there are interests that cannot immediately be united and these interests are not part of the dispute that the judge has to decide upon, there is already an underlying conflict.And these interests, and the needs and wishes related thereto, do not necessarily form a case as such.Examples are the need for recognition, the desire to be seen as trusted, the need for an apology, and the parties' wish to go their separate ways in an amicable manner.These needs and wishes are regularly the issue that the case in the courtroom is really about in the eyes of the parties.
The core of the matter is that the judge seeks ways to allow the parties to exchange their views -views that are generally seen as not negotiable -and leads them to the underlying interests, needs and wishes. 46If the judge does not do so, the only way to negotiate is positional47 and in many cases the last option will be to give a verdict.There is nothing untoward about giving a verdict, do not get me wrong.But only if another outcome is first explored in a professional way under the direction of the judge and this then appears to be impossible.

Techniques of conflict solving
There are different techniques in solving a conflict, meaning techniques to enable the underlying interests, needs and wishes to be communicated and to provide an insight into the conflict.
One of the best known is that of peeling (think of peeling an 'onion').The outer layer is one of the points of view.The second layer is about the beliefs, interpretations and projections which one thinks that the other party is thinking.The third layer is made up of feelings and emotions, while the fourth consists of concerns and needs.The core or the heart of it all is formed by the wishes following from the needs.During this peeling process several standard questions can be used. 48This method provides an insight into the depth of the conflict.
Somewhat less known in Dutch court practice at this point in time is conflict diagnosis by means of the 7i model, which provides an insight into the broadness of the conflict.And then there is the escalation ladder of Glasl, leading to insights into the sharpness of the conflict and the level of escalation.The ladder has three stages, each divided into three sublevels (together nine steps of the ladder).The stages are 'win-win' , 'win-lose' and 'lose-lose' . 50olarisation may occur during the first stage (win-win), but there is still the will to solve the problem together.A judge may intervene by helping the parties to reach a solution themselves.The hardening of attitudes and points of view, no 'words' but 'action' , and intellectual aggression are the features of the second stage (win-lose).Competition prevails: I want to win, the other has got to lose.According to psychological opinions identity-related interests play a stronger role at this stage.One can see stereotyping, image damaging and threats.A judge may intervene by giving attention to the self-image of each party.Losing face and the need for recognition are the key words.
In the most escalated stage (lose-lose) the winning of the battle is no longer that important, as long as the other side does not win.'I would rather jump over the edge of a cliff together than see the other side win' is a common attitude. 51If this situation cannot be de-escalated, the judge's intervention in the conflict will not be successful.The verdict remains the only way out, but it seems unlikely that the conflict will be brought to an end by the fact that a verdict is pronounced.52

Is conflict solving a judge's job?
The methods and insights mentioned are much used in mediation, but to speak of mediation methods would be an unjust monopolising of what is no more than communication skills and conflict management techniques.Both belong in the toolkit of the mediator, but should also be part of what a judge can do during a court session.The techniques serve the ability of a judge to help the parties to settle their case.And that is really the core business of every judge in a civil law procedure!Should we aspire towards this way of handling cases during oral hearings?I have no doubt: yes.
In doing so the judge does not deprive himself of his authority as an institution.If a settlement is not reached, a verdict will follow.Therefore settling the case always takes place in the shadow of the law.In this respect it makes no difference whether during the effort to settle the case the judge uses the techniques which I have described, in order to give the parties an understanding of their conflict.All this has nothing to do with the informalisation of the judiciary, as symbols and formalities remain, as does the power of the judge to decide the case.Using these skills does not turn the judge into a mediator or a semi-mediator.He is still the judge, with his constitutional powers. 53But whoever wants to see his case being dealt with in a tailor-made fashion does not have to go elsewhere.Instead of wielding the axe by pronouncing a verdict the judge gives the parties the opportunity to find an optimum solution to their conflict and to reach a settlement.Of course, one can safely presume that the parties did not commence a civil court procedure in order to reach a settlement, given that the whole procedure is geared towards reaching a verdict in a fair and lawful manner.But who cares, if the parties in the actual setting of the oral hearing can be made to believe that a settlement is more favourable to them?And that is what counts.

Attitude of the judge during the settlement phase of the oral hearing
Delivering a verdict and helping the parties to reach a settlement are both the core business of a Dutch civil law judge.The attitude he needs to adopt in the settlement phase of an oral hearing differs, however, from the attitude in the phase of obtaining information which is needed for reaching a verdict in the case.In the settlement phase the judge needs to be more facilitating and the direction of the case is in the hands of the parties, assuming they have the ability to deal with that responsibility (if they do not have the services of a lawyer).In the informational phase the judge himself is the director and it is he who is obtaining the information which he thinks is required to complete the case and to make it ready for a verdict.In short: the facilitating judge versus the deciding judge.
The facilitating judge is not per se a modest judge.Facilitating can lead to a firm manifestation. 54And sometimes it goes beyond facilitating on the mere communication process.Then facilitating means playing the part of the director of the content: the judge giving the parties a last push to settle, suggesting his own solution and generating a commitment to that suggestion. 55It is clear that the facilitating and the deciding judge are merely stereotypes and that the roles can be more diffuse in practice.
The facilitating judge is in any case a curious judge.He wants to know what stimulates the parties or what holds them back.He does not presume what the parties want or can do and does not act upon assumptions: he simply asks.56

Dutch research is still scarce
In the previous section I ended with firm points of view or even statements of policy.But still very little is known about the use and application of these new -that is: new in the courtroom -techniques of communicating and exploring the underlying conflict so as to serve the settlement of the case and higher levels of perceived procedural justice.
What is the opinion of judges nowadays about the correct way of presiding over an oral hearing and using the mentioned techniques?What are they actually doing, do we see an exploration of the underlying conflict at the oral hearing?57Do judges have the necessary skills for the required ways of communicating and conflict management and, if so, can they apply different techniques and switch if necessary?What about the perceived procedural justice if the underlying conflict was explored?And how effective is this exploration in terms of attaining the aims which the judge had before and during the oral hearing?Further research is needed.58

The judge's view of how to exercise his profession and his behaviour at the oral hearing
Some facts are already known about the relation between the judge's view of how to exercise his profession and his behaviour at the oral hearing.
Van der Linden asked the judges in her field research: 'In your opinion, how much time and effort should a judge spend in trying to reach a settlement at an oral hearing?'This question is about the judge's view of how to exercise his profession.Van der Linden found a more or less proportional correlation between the views and the actual behaviour of the judges. 59But how active one may be says little to nothing about one's actual behaviour.Unfortunately an explanation as to the answer provided was not asked for.Probably those who think that spending a great deal of time and effort on reaching a settlement is favourable are of the opinion that it is their professional duty to help the parties to find a sustainable solution for their conflict, but that is not certain, because this probable correlation was not the subject of the research.Nor is it known what the correlation is between the answer given and the actual behaviour of the judge at the oral hearing.
Other Dutch research emanates from 2008.That concerned a pilot project which was set up in which a (would be) oral hearing was held on six occasions about the same (real, but closed) civil law case.Six different judges presided over this hearing.The parties were actors.They were present at all six hearings as were their lawyers.A relation was found between, on the one hand, the judges' opinion as to the most favourable outcome of the case (a verdict, a settlement, referral to mediation) and their opinion that these outcomes are in general equivalent and, on the other hand, their interventions and the guidance of the parties towards this outcome. 60Intuitively it is indeed fairly clear that judges will put more (and various forms of) energy into reaching a settlement if they think that that particular outcome is a good alternative in general and the best alternative in the specific case. 61n that research there were also indications that the judges' view of how to exercise their profession has an impact on their attitude at the oral hearing.The dispute decider differs from the conflict solver. 62he former is focused on the judicial aspects, the latter on the socio-emotional aspects of the case (shared interests, emotions, needs and wishes).But it was not apparent that the former had a more business-like and presuming style, while the latter had a more personal and advisory style. 63eflect on his own emotions, and there were no questions about or addressing the exact cause of the emotions, nor about the needs and wishes connected thereto. 66hese initial observations in our research are in line with earlier recent research.I will refer to just one. 67In 2009 pilot projects were held at several Dutch courts on various fields of law.The pilot projects focused strongly on conflict solving. 68They give the impression that conflict solving in the courtroom in 2009 was still in its first phase of development.Judges did not know how to apply the required and trained communication techniques or could not maintain them during the whole session.Or they employed the agreed method of conflict diagnosis.That was the 7i method.Judges in this pilot project and in general have, as a result of their training and professional working experience, the persistent habit of focusing on just 1 of these 7, that is the i for 'Issues' , and then only the legal components thereof. 69Delegalisation through conflict solving needs to be trained, because judges are not conditioned in that way. 70lso based on our own ongoing research I really doubt if judges in general are sufficiently trained and are therefore able to apply the required techniques in order to pay proper attention to the underlying conflict, let alone being able to vary their approach if necessary. 71

Concluding recommendation
needs and wishes.The core of the conflict was explored and discussed, everyone felt that they had been really heard and understood, evenly treated, and they also felt that they did have an influence on the outcome. 72These are all elements of procedural justice, like care, voice, due consideration, neutrality and respect.
Our own research has not yet reached the stage where hard and fast conclusions can be drawn about the effects of the opinion of the judge on the parties, but again seems to be in line with the results of the pilot projects in 2009.Note that our field of research is -of course -the following: real oral hearings in real court cases.Do the parties think that the judge has done his or her utmost to help them reach a settlement?Do they perceive that there is a case of procedural justice and, if so, in what way (which elements)?This is not yet sufficiently clear, but the first results indicate that the element of perceived voice is lower when a party has not expressed what was really important to him or her and is higher if the parties have perceived that the judge understood and gave due consideration to this which, for them, is a crucial point. 73There also seems to be a relation with the expectations which the party had concerning the court session. 74More uncertain is what would have happened in terms of reaching a settlement if judge would have paid attention to the underlying conflict, but in fact did not do so.Other factors, as also indicated in the field research by Van der Linden, seem to be at least very relevant too, like a belief on the part of the judge that a settlement would be the optimal outcome.Maybe we can draw a (cautious) conclusion when we have observed more cases and have more figures and percentages at our disposal concerning the number of cases settled after a 'normal' session as opposed to a session during which the underlying conflict was explored. 75f, in fact, one can conclude that the level of settlements increases when the underlying conflict was explored and discussed in a professional and proper manner, then conflict solving is also effective in another way: it is known that compliance with solutions reached themselves is higher than compliance with obligations imposed by a verdict. 76s I have stated there is still little Dutch scientific research that has been carried out.So we still do not know very much on a scientific scale about the effects of the behaviour and actions of the judge during an oral hearing on perceived procedural justice and on the possibility of reaching a settlement.Especially the effects of investigating the lower layer of the conflict in the legal dispute have not yet been scientifically mapped.But we do actually have clues that suggest that these effects exist, that there is a positive connection between a conflict solving attitude, on the one hand, and procedural justice and reaching a settlement, on the other.
The pilot projects with real cases, the research on the six oral hearings and the first results of our ongoing qualitative field research tell us that the behaviour of the judge is a determining factor for key elements of procedural justice and that the effectiveness of our judges differs.In short: what you put into it, you will get out of it.73 Note that this crucial point lies outside the legal dispute and the facts that are relevant to that dispute.So they are crucial points in the underlying conflict, for instance loss of face or perceived incomprehension or indifference.74 What we here regularly note in our interviews is that the parties thought that it was improper, out of order, or not sufficiently relevant to mention their crucial points.These rationalisations could be an explanation for the fact that these parties still score the oral hearing rather highly with regard to having a voice, although they also inform us that they would have preferred to mention their crucial points and to discuss them.75 The pilot projects from 2009 show that in 50% of the family law cases a settlement was reached, whereby in another 30% the case was referred to a mediator.In other civil law cases 60% were settled.These percentages are considerably higher than normal, but the absolute numbers of cases in the pilot projects were too low to be extrapolated into day to day practice.76 Eshuis, supra note 17, pp.113-116.See on compliance with settlement agreements after mediation Guiaux et al. supra note 72, pp.102-103.
For different opinions on the impact of perceived procedural justice on compliance with verdicts, I refer to note 20, supra.
One of the results I hope to obtain with this qualitative field research is whether or not this search for an underlying conflict is more effective -if there is such an underlying conflict -than adhering to the judicial case and the dispute itself, in terms of perceived procedural justice and/or in terms of reaching a settlement.In other words: are our judges putting the right effort into the handling of the hearing and are they getting the optimal results?To me this is the pivotal question. 77As a legal scientist and academic I do not know the answer.As a judge I think I do and it is not altogether positive.

What is it all about?
As a judge I answer this as follows.
The civil law judge is the last resort when deciding on a legal dispute.We hear it a lot, this one-liner about the 'ultimum remedium' .But this adage implies a choice: the choice to look upon a judge as only the wielder of the judicial axe.A choice that is not mine.A choice that is ultimately harmful for the relevance of and trust in the judiciary.
For the parties it is always about the core of their case.And this core is often hidden in the conflict, not in the legal dispute.The judge must be prepared to search for that core, thus engaging in conflict solving.The fact remains that not all judges are prepared to do this.
For the modern judge it is about the necessity of mastering techniques of communication and conflict management.These techniques are not at one's disposal only because one is more than able to solve a case in a legal way. 78or every judge it is about the insight that there seems to be much to gain when applying the mentioned techniques, both on an individual level and for the judiciary as a whole. 79hat is needed for a judge to continually relate to what the parties see as really important?What is required for the civil law judiciary to be still relevant after 10 years in the whole field of conflict solving entities and to be still able to gain the trust of the parties in question?What does the judiciary have to do as an organization?What has to be done by the individual judge?
That is what it is really all about.¶ 77 That wide-scale research is not yet available does not mean that the judiciary should not move forward.Professional judicial experience provides hints as to in what way we could adapt the judiciary and pilot projects could provide evidence-based further insight into what we think is the right direction, especially if these pilot projects are combined with scientific research.Of the same opinion is De Groot, supra note 70, p. 9. Researching these questions also by means of interviewing the parties gives us an opportunity to develop a more responsive judicial approach.The judicial system is nowadays experimenting with pilot projects but otherwise without really knowing what the parties actually want.We are working from the inside out, instead of the other way around.Likewise, but in another context, see C. In consultation with the court where they sit, it should be possible (allowed) to draw the conclusion that not every judge is able to apply these techniques, let alone to their fullest.Deployment in other (more legally technical) cases has to be the result.I agree with Pieters, supra note 69, p. 15 that we must leave behind the idea that all judges are equally good at presiding over hearings.J.E.J. Prins et al., 'Rechters aan het woord over transparantie', in Broeders et al., supra note 53, p. 219 expressed the following opinion from interviews held with several judges: 'Hét moment om 'reclame' te maken voor ons ambt, het belang ervan, maar zeker ook de professionaliteit waarmee we dat ambt uitoefenen is wanneer we ter zitting handelen en het woord nemen.Het is de verantwoordelijkheid van ieder van ons om bij iedere zaak telkens weer die kans te benutten.'('The moment of advertising our profession, the importance thereof, but surely also the professionalism which we employ in that profession is when we act and speak at a hearing.It is the responsibility of each of us to use that opportunity in every case.')I would say: exactly so, but not every judge is equally skillful in that respect.
The 7 is stand for: Individuals -what kind of a person are you, what does your company stand for?Issues -what exactly is going on between the two of you?Interdependence -to what degree are you dependent on each other?Interaction -how did you deal with one another up until now?Implications -what does the case mean to you (and your social environment) in terms of content and escalation?Institutions -what is the context of the conflict, who is looking over your shoulder?Interventions -what could be done to solve the problem and what have you done so far? 49 Eradus, 'Naar een ideaal gerecht, Rechtspraaklezing 2010' (available at: <http://www.rechtspraak.nl/Organisatie/Raad-Voor-De-Rechtspraak/publicaties/Pages/Rechtspraaklezingen.aspx>, last visited 9 October 2014).78 This can be used as a criterion for the selection of judges and further on during their training.Especially on the job training, a major part of the training of judges in the Netherlands, should focus much more on actually applying these techniques.See also J.D.A. den Tonkelaar, Optimus Iudex, Over het belang van de selectie van onze rechters, inaugural speech Radboud University Nijmegen, 2009 and very critical about the new training curriculum for judges is M.J.A.M. Ahsmann, Over meesters in de rechten en priesters in het recht, Feit en fictie in hun opleiding, 2012.79 The mastering of conflict solving by de-escalating communication techniques should be found in training and good feedback.
civiele procedures, 2007, pp.157-177.Schedule 7 on p. 161 shows that 17 of the 19 district courts (there were then still 19 of them in the Netherlands) had a faster average time, a faster middle time and a faster 90-percent time in which civil cases were rounded up in 2003 compared with 1996-1996.This only concerns cases in which the defendant appeared.Cases in which the defendant was absent were not included.An actual oral hearing is only held if both parties request it, which is rarely the case.The terms court settlement and settlement session do not belong to Belgian judicial jargon.And no wonder, a settlement will seldom be reached if the parties are absent.
rechterlijke uitspraken en schikkingsafspraken', 2009 Research Memoranda 5, no. 1, Some of the writers in the note above have different opinions about how procedural justice works and what it affects.Van Velthoven (p.14) concludes, after having given, among other things, an overview of several researchers, that procedural justice first and foremost has an influence on the general opinion on the judicial system and further on the acceptance of authority, while Brenninkmeijer et al., referring to other literature, conclude that procedural justice is (also?) specifically relevant for the acceptance of the outcome of an individual case.See also the postsript by B.C.J. van Velthoven, 'Empirische kennis over de effectenvanprocedurele rechtvaardigheid geeft vooralsnog weinig houvast voor justitiële beleidsvorming', 2012 Rechtsgeleerd magazijn Themis, no. 4, pp.182-184.See further, for instance, M. de Hoon & S. Verberk, Zutphen.COM, Een onderzoek naar de pilot ´Conflictoplossing Op Maat´ bij de sector civiel van de rechtbank Zutphen, 2009, p. 21, with still further literature references.20 See Eshuis, supra note 17, p. 95: ´Het blijkt dat de sterke bijdrage die cna [de comparitie na antwoord, RV] levert aan de procedural justice niet resulteert in een hoge mate van naleving.´('It appears that the strong contribution of the oral hearing to procedural justice does not result in a high level of compliance.')The same line of reasoning can be found in T.R. Tyler & Y.J. Huo, Trust in the law.Encouraging public cooperation with the police and the courts, 2002, p. 44.In contrast see A.Z. Huq et al., 'Why does the public cooperate with the law enforcement?The influences of the purposes and targets of policing', Public Law and Legal Theory Working Paper, no.339, The Law School <http://www.rechtspraak.nl/Organisatie/Publicaties-En-Brochures/Researchmemoranda/Pages/Research-Memoranda-2009.aspx>,(last visited 9 October 2014), pp.83-95.This research can no longer be replicated in civil cases in the Netherlands, because there are not enough comparable civil proceedings both with and without an oral hearing.18 The words 'stevig bewijs' ('firm evidence') are used by A.F.M. Brenninkmeijer et al., 'Het grote belang van procedurele rechtvaardigheid in Nederland en daarbuiten', 2012 Rechtsgeleerd Magazijn Themis, no. 4, pp.178-181, see p.180 with further literature and see also B.C.J. van Velthoven, 'Over het relatieve belang van een eerlijke procedure: procedurele en distributieve rechtvaardigheid in Nederland', 2011 Rechtsgeleerd Magazijn Themis, no. 1, pp. 7-16, who writes on p. 9, with further literature references, that the great deal of research in this field does not leave room for doubt about the answer on the question of 'Does a fair process matter?'.Also earlier J.M. Barendrecht & A. Klijn (eds.),Balanceren en vernieuwen.Een kaart van sociaal-wetenschappelijke kennis voor de Fundamentele Herbezinning Procesrecht, 2004, pp.14-15 and M.T.A.B. Laemers et al., Awb-procedures vanuit het gezichtspunt van de burger, stand van zaken in theorie en eerder onderzoek,, 2007 and K. van den Bos, 'What is responsible for the fair process effect?', in J. Gerald & J.A. Colquitt (eds.),Handbook of Organizational Justice: Fundamental questions about fairness in the workplace, 2005, pp.273-300.19 of the University of Chicago, 2011: ´Procedural justice mechanisms provide a robust and broadly applicable framework for predicting public cooperation with law enforcement.(…) Neutrality, trust and respect should play central roles in the policing function regardless of whether the police are dealing with everyday crime or with terrorism.´Likewise Brenninkmeijer et al., supra note 18, pp.178-181, who at p. 180 point to older field research outside of the Netherlands (see their notes 18 and 19 Tyler, Why People Obey the Law, 2006 and C.A. McEwan & R.J. Maiman, 'Mediation in Small Court: Achieving Compliance through Consent', 1984 Law and Society Review 18, part 1, pp. 11-49.See the same conclusion in the articles mentioned in note 18, supra.21 In a speech in The Hague on 18 January 2012 Lind referred to the most important elements of procedural justice: voice, respect and Utrecht Law Review 10, no. 4, pp.147-161).In a broader qualitative field research that I am carrying out this year as well as next year this conclusion is confirmed (at this point in time during the research).The question concerning impartiality gives rise to a slight degree of astonishment: 'but of course the judge was impartial, he is the judge, isn't he?' 22 There is foreign research on this subject.K. Murphy, 'Public Satisfaction With Police: The Importance of Procedural Justice and Police explanation.Tyler, in a speech in Leiden on 7 March 2012 summed up the following as the most important elements of procedural justice: voice, neutrality, respect and consistency.The element 'neutrality' comprises, according to Tyler, openness and accountability, which seems to me to be a somewhat different approach to the element.See also T.R. Tyler, 'Procedural Justice and the Courts', 2007 Court Review: The journal of the American Judges Association 44, no.1/2, pp.26-31, who mentions on p. 31 'trust' -as well as voice, neutrality and respect -within a broad array of elements of procedural justice like 'caring', due consideration, sincerity and impartiality.Elsewhere in this special issue of the Utrecht Law Review Grootelaar, Waterbolk and Winkels state in their student paper (the outcome of a smallscale research project which I was happy to lead) that the impartiality of the judge seems to be understood by the parties (H.Grootelaar et al., 'The Relationship between Role Conception, Judicial Behaviour and Perceived Procedural Justice: Some Explorative Remarks in the Context of Dutch Post-Defence Hearings', 2014 See thereon K. van den Bos, 'Procedurele rechtvaardigheid; beleving en implicaties', in Werken aan behoorlijkheid.De nationale ombudsman in zijn context, 2007; K. van den Bos, 'Rechtvaardigheid en onzekerheid', in W.L. Tielmeijer et al. (eds.),De menselijke beslisser, 2009, pp.89-114 and K. van den Bos & A.F.M. Brenninkmeijer, 'Vertrouwen in wetgeving, de overheid en de rechtspraak.De mens als informatieverwerkend individu', 2012 Nederlands Juristenblad, no.21, pp.1451-1457.

72
Pieters, supra note 69, p. 15 and p. 17.See also Allewijn, supra note 70, p. 24 and C.vanLeuven, 'De regierechter in familiezaken', in 'Conflictoplossing op maat in de handels-en de kantonsector', in Pel & Verberk, supra note 69, pp.26-31, especially p. 29.These outcomes are in line with older research by D.L. Shapiro & J.M. Brett, 'Comparing Three Processes Underlying Judgments of Procedural Justice: A Field Study of Mediation and Arbitration', 1993 Journal of Personality and Social Psychology 65, no.6, pp.1167-1177.See for procedural justice -especially the elements of voice, due consideration, neutrality, respect and explanation -as one of the goals to be achieved by the new way of handling administrative law cases also Nihot, supra note 62, p. 30.See further M. Guiaux et al., Mediation Monitor 2005-2008, Eindrapport, WODC Cahier 2009-9, 2009, pp.96-101, about the satisfaction of the parties and their legal aid concerning mediation.This is important, because in mediation the same techniques of communication and conflict solving are used as in the pilot projects which I mentioned above in this note.See Tyler 2007, supra note 21, pp.26-31, who on p. 30 addresses this satisfaction concerning 'voice' as an element of procedural justice.