Mediation techniques are the working methods a mediator uses to move parties from fixed positions to a workable agreement. In the Netherlands mediation is voluntary, no general mediation act regulates the profession, and nothing the mediator does is binding in itself. What binds the parties is the settlement agreement they sign at the end, the vaststellingsovereenkomst of article 7:900 of the Civil Code. The technique determines whether you get there; the drafting determines whether it holds.
Where mediation sits in Dutch law
There is no statute that licenses mediators or lays down a mediation procedure. Successive legislative attempts to create one were dropped, and the profession is organised privately: the MfN register and comparable registers set training requirements, a code of conduct and complaint and disciplinary procedures, and the courts and the Legal Aid Board work with registered mediators. A judge can raise mediation at any stage of proceedings and refer the parties to the court mediation desk, but cannot compel them to take part or to settle. A contractual clause obliging the parties to mediate before litigating does not close the courthouse door either, although ignoring it can affect how costs are dealt with.
That voluntariness is the reason technique matters so much. A mediator has no power to order disclosure, to hear witnesses or to impose an outcome. The only leverage available is the quality of the process: whether the parties feel heard, whether the real interests surface, and whether the alternative to agreement is realistically assessed. The five approaches below are the ones most used in Dutch practice, and experienced mediators move between them within a single case rather than picking one. Our overview of alternative dispute resolution in the Netherlands places mediation next to arbitration and binding advice.
Technique one: separating positions from interests
The first move in almost every mediation is to take the parties off their stated demands and onto the reasons behind them. A position is what someone says they want; an interest is why they want it, and interests are far more often compatible than positions are. In a contract dispute one party may insist on immediate payment in full while the other insists on a long deferral. Behind those positions there can be a supplier with an acute liquidity problem and a buyer whose objection is not the amount but the timing of a single instalment, and the deal that follows is a payment schedule that neither side would have proposed as an opening position.
The mediator gets there with structured questioning rather than persuasion: what does this money have to do for you, what happens in your business if this is not resolved this quarter, what would you have to be able to explain to your board. The technique also has a diagnostic function. If a party cannot articulate any interest beyond being proved right, the case may not be suitable for mediation at all, and that is worth establishing in the first session rather than the fourth.
Technique two: facilitative mediation, where the mediator runs the process only
Facilitative mediation is the dominant model in the Netherlands and the one the court mediation desks work with. The mediator structures the conversation, sets the ground rules, decides when to move from joint sessions to separate meetings with each party, and keeps the agenda moving, but does not give an opinion on the merits and does not propose a solution. The parties keep control of both the content and the outcome; the mediator is responsible only for the process.
The craft lies in the sequencing. Ventilating the conflict comes before exploring interests, exploring interests before generating options, and generating options before any negotiation about which option to take. Parties who are allowed to start bargaining in the first hour usually deadlock in the second. Separate sessions, known as caucus, are used to test a party’s real bottom line without it being conceded across the table, and everything said in caucus stays there unless the party agrees otherwise. That confidentiality rule is a matter of the mediation agreement, not of the general law, which is why it needs to be written down.
Technique three: transformative mediation, where the relationship is the point
Transformative mediation aims at two things before it aims at settlement: empowerment, meaning that each party recovers a sense of being able to decide for themselves, and recognition, meaning that each is able to acknowledge the other’s perspective without conceding the merits. The mediator watches for the moments where either becomes possible and slows the conversation down to let them happen, instead of steering towards a deal.
It earns its place where the parties will still have to deal with each other afterwards: business partners who are not separating, a family business, co-parents, neighbours, a works council and a board. In those cases an agreement that settles the presenting dispute while leaving the pattern intact simply produces the next dispute. It is the wrong technique where the relationship is genuinely over and speed matters, and it is a poor fit where one party is using the process to prolong contact. Our article on collaborative divorce describes a related approach in family matters.
Technique four: an evaluative reality check
In evaluative mediation the mediator, usually a lawyer, gives the parties a reasoned view of how the dispute would probably be assessed in court and what litigation would cost and take in time. It is used when negotiation has stalled on incompatible views of the legal position rather than on emotion, which is typical of commercial, insurance and construction disputes.
This technique carries the most risk of the five, because the moment a mediator gives an opinion, the party who hears the less welcome half may conclude that the mediator is no longer neutral. Three safeguards make it workable. Ask for the parties’ express consent before giving any assessment, and record that consent. Assess both cases, including the weaknesses in the position of the party you are apparently favouring. And state plainly that this is an estimate of a range of likely outcomes, not a prediction, and that the decision remains entirely theirs. A mediator who cannot do all three should stay facilitative.
Technique five: reframing the narrative
Disputes are carried by stories. Each party arrives with an account of what happened, who caused it and what would put it right, and those accounts are usually internally consistent and mutually incompatible. Narrative technique works on the account rather than on the claim: the mediator draws out each version in full, then asks questions that make room for a third account in which the problem, rather than the other party, is the adversary.
The practical tools are ordinary ones. Ask about the periods when the relationship worked and what was different then. Ask what a neutral outsider watching the whole history would say. Restate a hostile remark in terms of the need it expresses. This is the technique that does most work in cross-cultural and international files, where the same conduct carries very different meanings, and in long-running conflicts where the original incident has been overtaken by the history of the conflict about it.
Confidentiality: what is actually protected
Confidentiality is the reason parties speak freely in mediation, and it is weaker than most people assume. There is no general statutory professional privilege for mediators in Dutch civil proceedings comparable to that of lawyers, notaries and doctors. What protects the process is the mediation agreement itself: the parties and the mediator undertake in writing not to disclose what is said or produced, not to call the mediator as a witness, and not to use documents created for the mediation in later proceedings. That undertaking is a contract, and it is worth reinforcing with a penalty clause, because damages for a breach of confidence are hard to quantify.
Two practical consequences follow. Do not put into a mediation anything you could not survive seeing quoted, and be precise about which documents are covered, because a document that exists independently of the mediation does not become privileged by being handed over in one. For cross-border disputes within the European Union, separate implementing legislation for the European mediation directive applies and provides its own protections.
From agreement to an outcome you can enforce
Mediation ends, if it succeeds, in a vaststellingsovereenkomst under article 7:900 of the Civil Code: an agreement in which the parties settle what was uncertain or in dispute between them and bind themselves to that settlement, even where it departs from what the law would otherwise have given them. That last feature is its strength and its danger, and it is why the drafting deserves as much attention as the mediation. Define what is settled and what is not, deal expressly with finality and mutual discharge, and state what happens if an instalment is missed. Our guide to the vaststellingsovereenkomst and what to watch for goes through the standard clauses.
A signed settlement is not in itself enforceable. To be able to enforce it without a fresh action you need an enforceable title: either the settlement is recorded in a notarial deed, or, where proceedings are already running, it is recorded by the court so that the record itself can be enforced. That step is easy to arrange at the time and expensive to repair afterwards. Watch the limitation period as well. Starting a mediation does not by itself stop a Dutch limitation period from running, so where a claim is close to prescribing you interrupt it in writing under article 3:317 of the Civil Code before the mediation begins. For cross-border European disputes the implementing legislation does suspend the period while the mediation runs, which is precisely why the distinction matters.
When mediation is the wrong route
Mediation is not a universal answer, and a legal adviser who recommends it in every case is not adding much. It works badly where there is a serious imbalance of power or information that the process cannot correct, where one party needs an authoritative ruling on a point of principle that will govern future cases, where a measure has to be obtained urgently and only interim relief proceedings will do, and where past behaviour makes it unlikely that a voluntary agreement will be honoured. It is also a poor fit where a party is not free to settle, for instance because an insurer or a supervisory board holds the decision.
In employment matters mediation occupies a particular place, both in ordinary workplace conflicts and where a company doctor identifies a labour dispute behind a sickness absence, and it is often the route to a negotiated exit rather than a litigated one; our articles on mediation in labour disputes and on using mediation effectively in employment disputes go into that. In family matters it is close to standard, and for parents of minor children it produces the parenting plan the court requires, as we set out in divorce through mediation.
Choosing a mediator and preparing the session
Check the register first: registration tells you the mediator has met training requirements and is subject to a code of conduct and a complaints procedure. Then check the fit. A commercial file with a valuation dispute at its heart needs a different mediator from a conflict between shareholders who are also siblings. Ask directly which of the approaches above the mediator works with, and how they handle an assessment request, because you want that answered before the session rather than during it.
Preparation is where most value is won or lost. Establish your best alternative if no agreement is reached, in concrete terms, including what litigation would realistically cost and how long it would take. Decide who attends and make sure that person can actually bind the party. Agree in advance on fees and how they are shared, on confidentiality, and on whether advisers are present. Bring the documents that matter and be ready to explain your interests rather than restate your claim. Where you qualify for subsidised legal aid, mediation with a registered mediator may be covered by a mediation grant from the Legal Aid Board.
Law & More acts as mediator and as adviser alongside a mediation, in commercial, employment and family matters, in Dutch and in English. If you are weighing mediation against proceedings, contact our mediation team in Eindhoven or Amsterdam so the choice can be made on the merits of your file rather than on general expectations.
