This consensual approach may not fit into the classic image of a lawyer, but even for litigators it is a suitable approach. Moreover, Rule 5 of the Rules of Professional Conduct for Lawyers states that lawyers should bear in mind that an amicable settlement is often preferable to litigation. In practice, however, I saw that attempts to reach a settlement were not always successful. Far from it. Even when it was fairly clear that it would be better for all parties concerned. Once in the legal mill of, or in the run-up to, litigation, it has proven difficult to let go of positions and 'concede' on points to the other party.
Digging into positions
In my view, the design of the Dutch civil litigation system invites parties to dig into positions. Letting go of them can be dangerous. Before you know, an opposing party's position is considered established because it has not been sufficiently contested. Or maybe the judge thinks you are not that confident about your legal position if you are not sufficiently adamant about it. It struck me that this often makes it difficult for parties (and their lawyers) to let go of positions taken or to be open to the other party's interests. Even if it is clear that you are not acting in your own interests by doing so. Something like: 'I don't mind if I lose, as long as the other party does not win'.
Sustainable dispute resolution
This insight is one of the reasons I became a mediator. In mediation, it is particularly important to look for the interests behind the positions. I find it valuable that mediation offers a sustainable method of dispute resolution aimed at getting those involved to listen to each other again. Unlike more traditional forms of dispute resolution where the decision is made by a third party, in mediation the responsibility lies with the parties involved. They are in the driving seat. As a mediator, I facilitate them to start talking to each other again, in a different and more constructive way than they are used to. How wonderful is it that space is created to be able to listen to each other again? Only because those involved gain insight into what interests lie behind each other's points of view and can therefore search for solutions together. That search is easier if you understand where the other party is coming from. In a conflict, it is often impossible to have that understanding. In my experience, this is even less successful in court proceedings.
The case on oranges
A good example that is often used is the dispute in which two parties want the same shipment of oranges delivered. If you let lawyers negotiate this without too much background, all kinds of arguments will be used to convince the other lawyer that the oranges should be delivered to his/her client. The latter bought them earlier, needs them more or is more entitled to delivery for all sorts of other reasons. The crux is that if one would look at the interests behind the arguments, it turns out that one client only needs the peel of the oranges and the other client needs only the flesh. So the interests - contrary to what was assumed based on the positions - were not at all incompatible. The solution can then also be found (more) easily.
Mediation at BASE
BASE helps its clients make business and/or labour disputes manageable. We offer a broad service that is not limited to assistance in disputes in court. For us, it is important to achieve the best possible solution for clients. This means that we stand beside our clients, think along with them and advise them, precisely in order to avoid going to court. Mediation is one way of doing that.
Creative solutions
It is a common misconception that mediation can only be used in divorce, family or neighbourhood disputes. Especially in business and/or labour disputes, mediation can be a powerful tool to achieve quick results. In my experience, for instance, entrepreneurs are often better at thinking in terms of possibilities and coming up with creative solutions than anyone else. This is even more likely if those involved can understand each other again through mediation. In legal proceedings, there is little eye or space for this.
Mediation is also very appropriate in employment cases. Company doctors often prescribe mediation when an employment conflict arises. Employers are also keen to use mediation to see whether the working relationship with the employee can be restored or whether it is possible to terminate the employment agreement in an amicable way.
An interesting advantage of mediation, especially for business and labour disputes, is that it is generally much quicker and cheaper. No years of court proceedings or expensive arbitrations. With mediation, you can sometimes reach a solution in just one or two meetings.
Who am I as a mediator
Looking at all the benefits in a nutshell, it is a no-brainer for me to use mediation. When you come to BASE for mediation, I am the mediator. I work according to the rules of the Mediatorsfederatie Nederland (MfN) and am registered in the MfN register. This means, among other things, that I am impartial and independent. I facilitate parties to be able to talk to each other (again). I have no advisory role nor do I make decisions. Participation in mediation is always voluntary and all that’s discussed, is confidential. Mediation is non-committal in the sense that the parties involved can quit at any time. At the same time, it is important that parties are willing to enter into the conversation with each other. These principles are laid down in the rules of the MfN and are applied by all MfN-registered mediators. Thus, so far, little surprises.
What I add is my vast experience as a lawyer within various areas of law. I have seen a lot go by and can quickly oversee an issue. As a result, I have an eye for the practical feasibility of solutions, although it obviously remains up to the parties involved what such a solution looks like. In addition, I know the alternatives if mediation fails unexpectedly.
Most importantly, I am convinced of the power and usefulness of mediation. It makes me enjoy listening to stories, take a genuine interest in what is going on, manage the process well and allow those involved to get out of the conflict and look positively to the future again. This can be done at BASE's office, on neutral ground, but also at another location suitable for both parties.
Practical perspectives on 'hassle'
What can you do if you are in a situation that you fear will escalate or lead to conflict? Perhaps these practical perspectives can provide some direction:
think beyond positions: what is my interest, what do I need?
realise that you look at things from your own perspective. Also try to imagine what it is like to be in the other person’s position?
be aware that you often condone your own behaviour and take that of the other person to be a fixed (negative) pattern.
realise that there are always underlying emotions at play, even in a business conflict. It can already help if you dwell on that.
remember that if you are confrontation-averse this does not mean you do not have a conflict. You can also argue in silence.
These realisations may help you come to a different approach to 'hassle' and thus avoid a possible conflict. By being mindful of your own part while being open to the underlying interests, yours and the other's. And if that doesn't work, you can always come to us for mediation or legal advice!
