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

Rick J Verschoof

doi:10.18352/ulr.289

Abstract

This article describes 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. It tries to distil what we know and to provide an insight into what we do not know as yet and it pays 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? The author concludes 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. He advocates, based on his 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.

Highlights

What the reader can expect in this article This article is a translation and a slight elaboration of my inaugural speech.[1]
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 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, we do have clues pointing in that direction, and that more research is needed

Summary

Introduction

What the reader can expect in this article This article is a translation and a slight elaboration of my inaugural speech.[1]. I will pay attention to a new way of handling cases during oral hearings: the search for the underlying conflict. I am 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 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]

The oral hearing in Dutch civil law

The relevance of the oral hearing in terms of procedural justice

Actions and behaviour of the judge at the oral hearing

An extra line of action which a judge could explore: conflict solving

Findings

Concluding recommendation