Many people have heard of mediation. In most cases in relation to divorce and family law, but mediation is a powerful tool that can be used for many more types of legal disputes, such as contract disputes, disputes between employers and employees or shareholders, disputes between the authorities and citizens etc. etc.
To understand why mediation is so useful, it is important to know how mediation works.
Every mediation starts with the willingness by both parties to engage with each other and sit around the same table. Parties can either agree mediation beforehand or be referred there, for example by a court. It is now common practice for Dutch courts to promote alternative dispute resolution during court cases, based on the fact that most court decisions are 'all or nothing' and can lead to even more court cases being initiated by the losing party. The thinking is that by using mediation parties can come to a mutually agreeable and lasting settlement.
The main reasons mediation works are the following:
Mediation makes it much easier to communicate without fear of repercussions, as discussions may not be used in a court of law at a later date. Parties must sign a confidentiality agreement before commencing mediation.
Parties are also far more flexible in what they can agree between themselves compared to what a judge can decide. For example, a judge can decide that asset A must be transferred to party B for a certain price. The judge does not rule how the amount owed should be paid or decide on spread payments. Parties can come to a much more detailed agreement on that count, making it more acceptable and workable for all parties.
Once a mediator has been appointed, talks can begin. Usually the first meeting is not about the dispute itself, but about how the mediation process will proceed. Parties meet the mediator either together or separately so that the mediator can gather information for the further process.
In most cases, the mediator will commence by talking about how the dispute came about and leave room for both parties to tell their side of the story. This is not a counselling session, so there is a clear reason for doing this, namely to see where the heart of the problem lies. The mediator may, for example, ask: ‘Why did you put the points now in dispute in your original agreement?’ ‘What went wrong in the execution of the agreement?’ Or ‘What did parties expect of each other originally?’
This usually gives the mediator a clear picture of the problem and what parties’ positions and interests are. If not, then the mediator may take some more time to uncover what the problem really is.
Parties interests and concerns are the main tool used to mediate successfully. The mediator helps parties to identify these interests. There may not only be conflicting interests, but also common interests. Once these are clear to both parties, the way forward will often become evident and an agreement will follow. Some interests are more important than others and may be crossed off or traded. Or parties may find a third way which harms neither position. The main thing is that parties realise an agreement themselves that is mutually beneficial and leads to a final solution.
Mediation focuses on parties’ interests and gives parties an insight into each other’s interests. That is what makes mediation effective and means that it is employable irrespective of the type of dispute. Business mediation is becoming more and more popular as it is very cost effective compared to legal proceedings. Even the bankruptcy courts in The Netherlands are now advocating mediation.
Sabine Imdahl is a lawyer and mediator. Sabine speaks fluent German and English and can therefore also mediate if one or both parties are not fluent in Dutch.
If you are in a mediation process and wish for a second opinion on an agreement, we are also happy to help and advise in the background.
For more information or advice on mediation, please contact Sabine Imdahl.