24 Mar 2021 When to choose mediation
In my daily practice I notice that many people, both individuals and entrepreneurs, do not know exactly what mediation entails. Comments like "oh, that's only for divorces, right", or "you are a lawyer, doesn't that clash with being a mediator?
Nothing is less true, however. It is true that mediation is probably best known to people who are getting divorced and want to do so in good consultation, but it is certainly not the case that mediation cannot be used in other kinds of cases.
On the contrary: in practice, mediation also works very well in all kinds of other (impending) disputes, such as labour disputes, friction on the administrative level (think of shareholders' disputes, conflicts between the Supervisory Board and the director of a company, etc.) and also in all kinds of day-to-day problems, such as discussions about hidden defects after the purchase or sale of a home.
A mediator who is also a lawyer has the advantage that he or she can not only assess the legal side of the problem very well and can coach the parties in their expectations of it, but a lawyer-mediator can also make a difference with respect to the so-called human side of every conflict. After all, it is a well-known fact that every legal dispute also has a human and emotional side.
When going to court, experience shows that the human side of the dispute is unfortunately often forgotten and that the quarrel and the feelings of dissatisfaction between the parties usually only increase, because the parties "hide" behind their lawyers and there is no communication at all anymore. The risk then exists, that parties will start "filling in" things for each other and that the human dimension disappears completely into the background.
Of course, there is nothing wrong in itself if parties decide to litigate. On the other hand, it should not be forgotten that litigation often takes a long time, involves high costs and often causes a lot of stress for the parties involved.
For that reason, I myself am in favour of parties, in whatever dispute, talking to a (lawyer-) mediator at an early stage who will guide them during one or more mediation meetings, where there is room to discuss both the (legal) facts and circumstances, and especially the underlying emotions, feelings and thoughts. It often turns out that the parties are still able to understand each other and it also gives them the opportunity to tell their own story to the other, which makes them feel heard and seen. This often creates space for resolving the conflict.
In the unlikely event that this is not the case, then the parties can still go to court. The confidentiality that was agreed upon by the parties and the mediator during the mediation process protects the parties from confidential matters that were said during the mediation being revealed in a possible legal procedure.
Curious about the possibilities and opportunities that mediation can offer for you or your organisation? Please feel free to contact me at firstname.lastname@example.org or 043-365 20 88.