Drafting a mediation agreement: what should be included

Drafting a mediation agreement involves establishing the ground rules of the mediation process: voluntariness, confidentiality and secrecy, the impartial role of the mediator, and agreements regarding costs and termination. If you work with an MfN-registered mediator, you declare the MfN Mediation Regulations applicable. The agreement governs the process; the outcome is recorded separately later in a settlement agreement (Art. 7:900 BW). A good mediation agreement ensures that parties can speak safely and openly.

The short answer

• Establish voluntary nature: each party may withdraw at any time.
• Include a clear confidentiality clause.
• Describe the impartial and independent role of the mediator.
• Declare the MfN Mediation Rules applicable when using an MfN-registered mediator.
• Arrange the costs, their distribution, and the termination of the process.
• Determine that the outcome be recorded in a settlement agreement (Art. 7:900 BW).

Drafting a mediation agreement: the core components

The core of a mediation agreement consists of the three principles that give mediation its value. First, voluntariness: stipulate that participation is voluntary and that each party, as well as the mediator, may terminate the mediation at any time. Second, confidentiality: determine that everything discussed remains secret and may not be used in subsequent proceedings. Third, impartiality: state that the mediator is neutral, does not take sides, and does not render a binding judgment.

In addition to these principles, practical arrangements should be included in the agreement. Examples include the appointment of the mediator, the outline description of the dispute, the manner in which meetings are conducted, and the parties' obligation to make every effort to actively cooperate. The agreement is not a coercive measure, but it does establish that the parties will make a serious effort to reach a solution together.

Confidentiality and the MfN Regulations

The confidentiality clause deserves special attention, because without confidentiality, parties will not dare to be open. Stipulate that everything discussed during the mediation is confidential, that documents from the process may not serve as evidence, and that parties will not call each other or the mediator as witnesses regarding the content. Include exceptions, for example, for the final settlement agreement or for information that was already public.

If you work with an MfN-registered mediator, you declare the MfN Mediation Regulations applicable. These regulations govern, among other things, the independence of the mediator, confidentiality, and the procedures during the process. By declaring the regulations applicable, you align with a proven framework and do not have to devise every detail yourself. The mediation agreement and the regulations then complement each other.

Costs, duration and termination

Stipulate in the agreement who bears the mediator's fees and how they are divided. Usually, the parties share the costs, but a different distribution can be agreed upon. Also specify the hourly rate or fixed price and how invoicing will be handled. Clear agreements regarding money prevent disputes about it from clouding the process.

Furthermore, describe how and when the mediation ends. This may occur because the parties reach an agreement, because a party withdraws, or because the mediator concludes that continuation is pointless. Determine what happens in those cases regarding incurred costs and confidentiality, which remains in effect even after the process has ended. This ensures that the parties know in advance where they stand when the process stops.

From mediation agreement to settlement agreement

The mediation agreement only regulates the process. The substantive solution belongs in a separate settlement agreement pursuant to Article 7:900 of the Dutch Civil Code. Include in the mediation agreement that a solution reached will be recorded in such a settlement agreement and that agreements are only binding once it has been signed. This prevents an interim idea from being viewed as a firm agreement.

A family business with two brothers as shareholders comes into conflict regarding succession. They draw up a mediation agreement in which voluntary participation, confidentiality, and the MfN regulations are stipulated, and which states that the outcome will be recorded in a settlement agreement. After a number of sessions, they reach a succession arrangement. Because it was clear beforehand that only the signed settlement agreement was binding, no misunderstanding arose regarding loose proposals that had been put forward along the way.

Honest recommendation

You do not always have to draft the mediation agreement yourself. An MfN-registered mediator almost always brings a proven agreement that effectively regulates voluntariness, confidentiality, and their own role. This is an excellent starting point for a straightforward dispute. However, be mindful of the outcome. The settlement agreement with which you conclude the dispute can have significant financial or long-term consequences, and the mediator is impartial. Therefore, have this final document reviewed by your own legal counsel before you sign, especially if amounts, shares, or long-term obligations are involved.

Want to read more? View the mediation agreement on our contracts page, first read what a mediation agreement is and see what it costs to have a mediation agreement drafted .

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