European Journal of Law Reform

Artikel

Occurrence of Disruptive Behaviour in Dutch Civil Procedures

An Empirical Study

Keywords civil procedure, case management, procedural justice, procedural sanctions, procedural rules
Authors Martin Gramatikov en Stéphanie van Gulijk
Author's information

139163 Martin Gramatikov
Martin Grammatikov is senior researcher at Tilburg University, Private Law department, and Head of Measurement and Evaluation at the Hague Institute for the Internationalisation of Law.

139165 Stéphanie van Gulijk
Stéphanie van Gulijk is senior researcher and lecturer at Tilburg University, Private Law department, and Legal counsel at Poelmann van den Broek Laywers. Both authors cooperated in the research project that is central in this paper: M. Barendrecht, S. van Gulijk, M. Gramatikov, P. Sluijter, De goede procesorde in beeld. Over gedrag van procespartijen en de regiefunctie van de rechter, in Research Memoranda Raad voor de rechtspraak, nummer 1-2011, jaargang 7.
  • Abstract

      In 2002, the civil procedure in the Netherlands was reformed. A fairly simple system of positive and negative stimuli was set up in order to ensure that the civil process develops in an efficient and timely manner. In this article, we explore the prevalence of process-disturbing behaviour as well as the response of the judges to such behaviour. Ninety eight civil cases were observed. We also conducted interviews with judges, lawyers and parties involved in these cases. The main finding is that in almost all cases there is at least one process-disturbing behaviour. On average there are 3.4 instances of such behaviour per case. Most often the disturbing behaviour is part of the categories communication problems. As it concerns the reaction of the judges, we see patterns of various strategies. Judges are not immediately responding actively to disturbing behaviour. However, when a certain threshold has been reached, the judges tend to take active steps and apply the tools they have. Most often, judges use different sorts of communication interventions. Procedural instruments for counteracting disturbing behaviour are used vey rarely. Our interpretation is that judges in the Netherlands are concerned about process efficiency but are also aware of the procedural justice and particularly interpersonal justice aspects of the process. We recommend that initial and ongoing legal education and training pays more attention on the communication and interpersonal skills and abilities involved in dispute resolution.

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