Mediation

Mediation is a form of conflict intervention in which the mediator or mediation team assists the parties in their negotiations to help them reach a result, based on their individual interests, that is the best possible outcome for each party and that enjoys the support of all parties. The joint solution is documented in a settlement agreement between the parties.

Mediation involves the resolution of a conflict through negotiations and conciliation. Mediation is most appropriate when the parties are prepared to look for a solution together and want to maintain their relationship, or stop it from deteriorating further. This can be the case, for instance, if the parties involved have a long-term business relationship; then renegotiation is often preferable to ending the contract. Another common situation is where parties have shared interests as well as conflicting interests: for example, reducing losses, avoiding publicity or completing the project as soon as possible. The first step is to list all the interests of the parties involved, doing so in a cooperative spirit (something the mediator in particular can achieve). Those interests do not just have to relate to the conflict; they can also include the parties’ future relationship, which often helps create an opening for a wider range of options.

It is not the mediator’s task to impose a binding ruling concerning the conflict on the parties involved. The parties themselves are responsible for finding a solution, which means they remain in control throughout the mediation.

There are a number of other advantages to using mediation. First, mediation is a relatively fast, cheap option. SGOA’s experience in recent years has shown that nearly every ICT mediation can reach settlement within weeks. A precondition for successful mediation is that the parties cooperate of their own free will and that they remain responsible for the solution. 92% of the ICT mediation cases reported to and dealt with by SGOA resulted in a successful outcome (that is, a signed settlement agreement).

When mediation is appropriate

The parties are prepared to reach a solution together (shared interest).
The parties want to maintain their relationship, or stop it from deteriorating further.
The parties do not expect to get a solution from a legal battle.
The conflict involves disputes about communication rather than fundamentally opposed interests.
The parties prefer to retain responsibility for the solution.
The parties are looking for a lasting solution that enjoys the support of all sides.
The parties are looking for a fast solution.
The parties are looking for a cheap solution.
The conflict has not escalated to the point where parties are seeking revenge.
The parties do not want a case tried in open court for reasons of privacy (confidentiality).
The parties are willing to cooperate on a voluntary basis.
The parties are looking for a pragmatic, creative solution.
The parties are willing to put the past to rest and focus on the future in order to reach a settlement.

When mediation is not appropriate

One of the parties is not prepared to make concessions or is determined to be proved right.
The parties want a public ruling from the regular courts, for example for the purpose of setting a precedence.
The parties want an enforceable order (court case or arbitration). However, it should be noted that this can also be achieved by having the settlement agreement drawn up by a civil-law notary.
The parties want to be sure of a resolution to the dispute at the end of the process.
The conflict has escalated to the point where each party wants to damage the other.
One party is much more powerful than the other, so that negotiations would not be on an equal footing.
It is in one of the parties’ interests to employ delaying tactics.

If you wish to start ICT mediation proceedings through SGOA (Stichting Geschillenoplossing Automatisering, or ‘foundation for the resolution of ICT disputes’), you need to observe the rules set out in the ICT Mediation Rules. The mediation procedure always starts with an ‘Application’. The request can be submitted by just one of the parties, but it is also possible for the parties involved in the dispute to submit a joint request. The request can be recorded in a basic letter. Article 3 of the ICT Mediation Rules specifies exactly what information should be included in the application. You will find a basic model below to help you in compiling an application. This model is for an application for ICT mediation submitted by one of the parties to the dispute.

Downloads

DOWNLOAD

Model Request for ICT Mediation