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 CAfA offers a very general type of mediation, based on the CAfA Mediation Rules. 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 a CAfA Arbitration Clause is included in the agreement after the mediation clause.
A mediation agreement is concluded between the parties and the mediator during the first meeting.
The following mediation clause is recommended:
"For the purpose of resolution of each and any dispute, claim, controversy, and disagreement that has arisen or might arise from the present agreement, or any further agreements resulting from the same, the parties shall – or a party shall – file a request for mediation with the NAI Secretariat in accordance with the CAfA Mediation Rules, consisting of the Mediation Rules of the Netherlands Arbitration Institute supplemented and modified by the AiA/NAI Adjunct Mediation Rules."
The key advantages resulting from inclusion of the CAfA 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.
Parties have great autonomy in the outcome of the proceedings.
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 CAfA and the NAI are non-profit foundations.
The CAfA arbitration clause may be included after the CAfA 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 pending mediations is disclosed to third parties.
The requirements a request for mediation must meet are stated in Article 3(3) of the CAfA Mediation Rules. If a request is not filed by all the parties involved jointly, the NAI Secretariat will forward copies of the request to the other party or parties involved and will request them to notify the NAI Secretariat in writing within 14 days whether they are willing to conclude an agreement pertaining to the resolution of the reported dispute by means of mediation in accordance with Article 3(4) of the Rules.
The request for mediation and, if applicable, the response thereto serve as an introduction to the mediation and are designed to further the process of appointing mediatiors.