It is impossible to do business without the occasional dispute with a business partner, a competitor or within the company. Such a business dispute may, however, also be an opportunity. A chance to cooperate or improve cooperation or a possibility to terminate a disappointing relationship. But when time is of the essence something must be done.
In such a situation, parties often elect or threaten to go to court. The conflict is reduced to a legal dispute and submitted to a judge or to arbitrators. They decide who is right and who is wrong. That may be the best option if it concerns a matter of principle, if a precedent is needed or large financial interests are at stake. But the parties can only influence the decision through their lawyers. The outcome may be a disappointment. And legal proceedings can become a costly war of attrition. For these reasons it makes sense to also consider other ways for solving the dispute.
Mediation may be an effective and realistic way to solve a business dispute, even after litigation has been initiated. Research shows that in most business disputes where it has been tried, mediation leads to a solution.
It may take only a couple of meetings, and in most cases mediation yields results within a matter of months.
V&D and the unions
The conflict: to stave off bankruptcy in early 2015 high street retailer V&D wanted to structurally lower the salaries of its employees by 5,8%. The unions refused and initiated summary proceedings to stop V&D.
The strength of MEDIATION
A successful failure
The conflict: a small software company had developed customary software for a large utility. After paying for part of the services, the customer rejected the software.
The mediator does not decide the dispute, nor advises the parties on their positions. He ensures that the process is clear and well managed and that it enables the parties to negotiate on an equal footing. Using his knowledge of conflicts and his expertise, he facilitates the parties to solve the conflict. He can contribute to a solution, but will not impose it. The mediator’s neutrality and independence is essential for the success of the mediation. If the mediation is successful, he mediator ensures that the agreement is laid down in writing. The document it is binding once signed by the parties.
Mediation is confidential, in that neither party may use the content of the negotiations and discussions in legal proceedings. This gives the parties the freedom to discuss solutions without affecting their legal position. Likewise, the contents of the caucus meetings the mediator may have with each of the parties are confidential.
Mediation may be useful to prevent a simmering business conflict from escalating into full blown litigation. But it may also be an option to solve a dispute already before the court. Experience learns that after proceedings have lasted for some time, the parties may be in a mood to negotiate a solution.
That may be the right moment to go to mediation. It is never too late to mediate.
Mediation is not a miracle cure. But it is recognized, both at a national and international business level, to be an effective tool for solving business disputes. The decision of enterprises to use mediation to solve their conflict is seen as a sign of strength. They signal that they are able to solve the conflict themselves, without the need for a judge or arbitrator.
As a certified mediator (MfN) and a WIPO neutral I am available to assist enterprises and organizations in solving internal disputes and conflicts between them.
I also act as a facilitator in cases where the parties entrust me with finding a solution.
If your company is involved in a business dispute and weighing the various options for dispute resolution you may call me for an exploratory talk at +31 653 923 228 or send an email to firstname.lastname@example.org.
In cases where the parties have agreed to arbitration, a dispute will be submitted to arbitrators, appointed by the arbitration institute the parties have chosen. The arbitrator is usually selected for his specific knowledge and expertise in the relevant legal areas or business sector.
My specialty areas are intellectual property, technology related agreements and complex business agreements (see also my cv at the bottom of this page).
I am an arbitrator at the World Intellectual Property Organization (WIPO) in Geneva, at the Netherlands Arbitration Institute (NAI) and at SGOA, the Dutch institute for solution of IT-related disputes.
You may send an email to email@example.com or call +31 653 923 228 for more information and a possible appointment as arbitrator for your dispute.
As a practicing attorney (since 1987) I have been involved both in litigation, alternative dispute resolution and the drafting and negotiating of complex agreements.
At request I design and implement process strategies for enterprises, or a strategy to avoid or solve disputes. In addition, I assist companies and institutions in the contracting of long running, high value agreements. In recent years I have assisted six Dutch hospitals in the contracting for their new IT systems, to enable them to implement a state of the art electronic health record.
You may send an email to firstname.lastname@example.org or call +31 653 923 228 for more information and an appointment at your company’s or institution’s premises.