When the topic of mediation in business disputes comes up, we regularly hear comments from fellow attorneys such as “mediation is too soft for cases like these” and “talking about emotions doesn’t lead to a solution.” This perception of mediation is distorted.
There are various styles of mediation. In the Netherlands, the facilitative style is often used: the mediator is not a subject-matter expert and does not deal with the substance of the case. He guides the process, restores communication between the parties, and supports them as they negotiate a solution.
In addition, there is the evaluative style. In this style, the mediator is a legal expert—for example, a (former) attorney or former judge. He delves into the substance of the case and, where necessary, shares his perspective on the case and the feasibility of the parties’ positions, makes suggestions, and guides the parties. This is a directive, substance-oriented form of mediation that can offer added value in business disputes. Research shows that parties and attorneys involved in business disputes prefer a mediator with legal expertise who acts proactively, takes a strong lead, and provides substantive guidance when necessary.
Mediation is a process driven by the parties. They can decide how they want to be guided. Some mediators act solely as facilitators, while others combine different styles. Anyone in need of a mediator with substantive expertise who takes an evaluative approach can find one by looking for a mediator with the relevant legal knowledge and experience, as well as a willingness to mediate in an evaluative manner.
Mediation is therefore broader and more multifaceted than is generally thought. With the various styles available, a suitable form of guidance can be found for every type of conflict.
Legal Notes brings together in-depth legal knowledge, experience as attorneys and judges, and mediation expertise. This makes it possible, when desired, to conduct mediation using the evaluative style.
Would you like to learn more about mediation or how we mediate a business dispute using the evaluative method? Please contact us.
