Summary
Platform Business Mediation (PBM) received in April 2024, the report of the follow-up study on opportunities and barriers for business mediation in the Netherlands, conducted by Marc Simon Thomas, Eva Schutte, Manon Schonewille, and Olga Korneeva. The research highlights the recent development of business mediation in the past five years and emphasizes important trends and insights, such as the growing appreciation for certified mediators and the need for proactive business mediators, as well as lawyers as sparring partners.
The research also confirms the main reasons for recommending or using business mediation that were found in the first study conducted in 2018, including speed, creative solutions, and (improved) relationships. These findings provide valuable insights for companies, lawyers, and mediators.
Read more background:
New research highlights users' business mediation needs.
This research, conducted with the cooperation of PBM by Dr. Marc Simon Thomas, Eva Schutte, Manon Schonewille, and Olga Korneeva, provides an update of the 2018 research on business mediation among companies, lawyers, and judges with experience in the field. The aim of this follow-up study carried out in 2023 among companies and lawyers is to gain more knowledge and insight into the opportunities and barriers for business mediation, as well as to map the developments in business mediation over the past five years. "It is quite unique that a previously thorough investigation into mediation in the Netherlands is conducted again almost in the same way five years later," emphasizes researcher Marc Simon Thomas.
Most trends found in 2018 have become even clearer five years later, and new developments are also emerging.
What are the main developments and insights from the PBM research of 2023?
Proactive mediators and lawyers as sparring partners
Just like in 2018, the majority of companies and lawyers does not believe that the mediator should limit themselves to facilitating the discussions so that the parties can engage in a constructive way with each other.
According to researcher Manon Schonewille, IMI Certified and MfN-registered mediator and board member of the International Mediation Institute (IMI), "Given the prevailing approach in the Netherlands that a mediator should work in a facilitating manner, it is remarkable that both companies and lawyers clearly have a need for a mediator who plays a proactive role in mediation. They both want a mediator to discuss the opportunities and risks of a case with the parties to guide them towards a settlement."
"With regard to the desired role of lawyers in business mediation, there is a shift," says researcher Eva Schutte, MfN-registered mediator and former chair of the Association ZAM (the predecessor of PBM): "Both companies and lawyers see the role of the lawyer during mediation mainly as a sparring partner or guardian of the client's interests, and not so much as a legal advisor." Furthermore, more than 93% of companies expect their lawyer to be familiar with mediation skills, an increase from 2018 (80%). This is in line with earlier research e.g., conducted by IMI in 2013.
Certification of specialized mediators
"The experience of a mediator in business mediation is increasingly appreciated, both by companies and lawyers," says researcher and secretary of IMI, Olga Korneeva. "In addition, the registration of mediators by organizations such as the Mediators Federation Netherlands or the International Mediation Institute plays an increasingly important role in the selection of a mediator and serves as a quality mark for mediators."
For companies, the priorities for the qualifications of a mediator are:
Experience in business mediation.
Legal knowledge.
Registration or certification (MfN and international IMI).
Industry expertise.
In comparison with other qualifications, both companies and lawyers find it less important that a mediator is affiliated with a specific office or collaboration.
For lawyers, the following qualifications of a business mediator are mainly important:
Experience in business mediation.
Legal knowledge.
Industry expertise.
Registration or certification (MfN and international IMI).
It is also remarkable that in 2023, lawyers (70%) attach even more importance to a mediator with industry expertise than companies (55%). In 2018, it was the other way around: 52% of lawyers versus 75% of companies.
Top 3 reasons to recommend or use business mediation
For companies:
Improving relationships/careful termination.
Expectation that mediation is faster than a procedure.
Expectation that the real cause will be addressed | Possibility of a creative solution.
For lawyers:
Expectation that mediation is faster than a legal procedure.
Uncertainty of a legal procedure.
Possibility of a creative solution | Expectation that the real cause will be addressed.
Furthermore, it is noticeable that among the reasons for lawyers not recommending mediation, resistance from the client no longer appears in the top 3.
No policy
According to the researchers, it is also striking that most companies (73%) have not developed a policy regarding the application of different forms of conflict resolution (e.g., when to litigate, negotiate, or mediate). These findings are similar to other recent research such as the General Counsel Netherlands Dispute Resolution Survey 2023.
Good grades
Finally, this research shows that mediation in the business market is effective, and users are generally satisfied with their experiences with mediation. The appreciation for the mediation process and the mediator has slightly increased, with an average grade of 7.8, with an average success rate of over 80%.
Download here the report (Dutch):
Citation: M. Simon Thomas, E. Schutte, M. Schonewille, and O. Korneeva, ‘PBM Vervolgonderzoek naar Kansen en Belemmeringen voor Zakelijke Mediation 2024’. Follow-up Study on Opportunities and Barriers for Business Mediation Among Lawyers and Companies in the Netherlands, Research Report 2024.