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What is mediation?

Mediation is a type of alternative dispute resolution in which parties voluntarily endeavour to resolve their dispute with the help of a third party, i.e. a mediator. The parties’ willingness to reach a settlement is paramount to the success of mediation. If the parties do not reach a settlement, the dispute may still be settled in proceedings before arbitrator(s) or in court.

The Netherlands Arbitration Institute administers mediation under its NAI Mediation Rules.

Mediation clause

The Netherlands Arbitration Institute offers a very general type of mediation. Just as an arbitration clause, a mediation clause may be included as a standard clause in business contracts. Mediation may also be agreed when a dispute has already arisen and no mediation clause has been included in the contract. In both cases, it is advisable to make an arrangement in the event that the mediation does not lead to a resolution of the dispute. This arrangement may entail, for example, that an NAI arbitration clause is included in the agreement after the mediation clause.

The mediation agreement is concluded between the parties and the mediator during the first meeting.

Advantages

The key advantages resulting from inclusion of the NAI mediation clause in an agreement are as follows:

• Mediation has already been agreed before any dispute has arisen.
• The clause can be included in both national and international agreements.
• Mediation is conducted on a confidential basis and is not public.
• Ideally, the parties select the mediator jointly.
• The NAI may also propose an experienced and expert mediator.
• The administration of mediation is handled by a solid and professional institute with over 65 years of experience in the field of alternative dispute resolution.
• The NAI is a non-profit foundation.
• The NAI arbitration clause may be included after the NAI mediation clause. If the parties do not reach a settlement, the dispute may still be settled by arbitration at the same institute.
• Mediation is both time-saving and cost-saving.

Administration / NAI’s role

As with arbitration, the Netherlands Arbitration Institute also acts as the administering body in mediation. The NAI follows the mediation from the moment of the request until the conclusion of the mediation. Independence and confidentiality are important factors. For example, the NAI, as an independent administering body, would never discuss the content of a case. Moreover, no information regarding NAI mediations is disclosed to third parties.

Costs

Since all proceedings are customised, it is not possible to provide a detailed cost estimate in advance. The total costs of mediation comprise the following elements:

• Mediator fee: a variable amount based on time, the financial interest in the dispute and the complexity of the case, fixed at an hourly rate. This hourly rate is agreed by the Netherlands Arbitration Institute and the mediator upon confirmation of his appointment, pursuant to the guidelines  set by the Executive Board. This hourly rate cannot be negotiated and neither can it be negotiated between mediators and the parties. The applicable hourly rates for mediators in mediations commenced before 1 April 2019, can be found here.
• The costs of the mediator(s), which include the costs of a hearing room and sometimes travel expenses, the costs of a secretary, an expert and/or an interpreter.
• Other costs that must be incurred according to the mediator(s), such as costs of witnesses.
• For the fees and disbursements of the mediator(s) a deposit is required.
• The NAI’s administration costs: a fixed sum calculated on the basis of a scale from EUR 400 (interest of less than EUR 50,000) to a maximum of EUR 35,000 (interest of more than EUR 250,000,000). The applicable administration costs in mediations commenced before 1 April 2019, can be found here.