Drafting a freelance mediation agreement: what belongs in it

Drafting a mediation agreement for self-employed professionals involves two layers: first, the agreements between the mediator and their client (role, commission, exclusivity, liability), and secondly, the contract for services that the client concludes directly with the self-employed professional. Keep these two layers strictly separate, because as soon as the mediator hires the self-employed professional themselves and places them elsewhere, it is no longer mediation within the meaning of Article 7:425 of the Dutch Civil Code, but rather the provision of services. Moreover, the contract must align with the way work is performed in practice, as the Tax and Customs Administration has been scrutinizing this again since January 1, 2025.

The short answer

1. Role description: the mediator brings parties together and does not become a party to the assignment.
2. Remuneration: commission or fee per placement, with a clear moment at which the right to remuneration arises.
3. Qualification paragraph: no employment, no secondment, with obligations that live up to this.
4. Replacement, working method, and resources: the points that carry significant weight in the holistic assessment.
5. Liability and insurance: the intermediary is not responsible for the result of the self-employed professional.
6. No impediment: omit prohibitions on direct on-contracting or keep them within the boundaries of the Waadi.

Drafting a mediation agreement for freelancers: the basics first

Start with the structure, not the provisions. In pure mediation, there are three parties and two contracts. The mediator agrees with his client to work for remuneration in arranging an assignment with a third party. That third party, the self-employed professional, subsequently concludes a contract for services with the hiring party himself and invoices them directly.

Write this down explicitly. State that the intermediary is not a party to the assignment, exercises no direction or supervision, and does not pass on payments. If the intermediary does work with their own purchasing and sales rates, the contract is not a mediation agreement and you must structure it as a provision of services, including registration in the Commercial Register (Art. 7a Waadi).

The compensation and the moment of accrual

Article 7:426 of the Dutch Civil Code stipulates that, in principle, the intermediary is only entitled to remuneration once the mediated agreement is concluded. This is dispositive law, so you may deviate from it, but you must do so in writing. In any case, stipulate:

• Basis: fixed amount per placement, percentage of the contract value, or a periodic fee for the duration of the contract.
• Moment: upon signing of the assignment, on the first working day, or upon payment of the first invoice.
• Early termination: what happens to the fee if the assignment ends within the trial period.
• Dual mediation: acting for both sides is only permitted with the consent of both principals (Art. 7:427 read together with 7:417 BW).
• VAT and recovery of costs: which expenses are and are not included.

The qualification section: preventing bogus self-employment

Since the enforcement moratorium on the DBA Act expired on January 1, 2025, the Tax and Customs Administration can once again levy additional payroll taxes if an assignment actually constitutes an employment relationship. Corrections for the period prior to that date will in principle be omitted, unless there is evidence of malicious intent or a disregarded instruction. New model agreements have not been assessed since September 2024; existing approved models run until their expiration date and are only effective if work is performed in accordance with them.

Therefore, include provisions that genuinely support independence:

• the self-employed person determines how he performs the work and, within reasonable limits, when;
• Replacement by an equivalent professional is permitted, with prior notification instead of a right of approval;
• The self-employed professional uses, in principle, their own equipment and tools;
• He may work for other clients and bears the risk of repair and liability himself;
• the remuneration is a project price or a rate that deviates from the internal salary scales;
• The self-employed professional does not participate in performance cycles, internal training obligations, or personnel schemes.

What the judge ultimately looks at

In the Deliveroo judgment (24 March 2023, ECLI:NL:HR:2023:443), the Supreme Court confirmed that the classification is assessed via a holistic test. No single viewpoint is decisive; everything is weighed in conjunction with one another. The points mentioned include the nature and duration of the work, how activities and working hours are determined, the integration within the organization, the obligation to perform personal work, the manner and amount of remuneration, the commercial risk, and the question of whether the worker behaves as an entrepreneur in economic transactions.

For drafting, this means: a clause that is not adhered to works against you. A right of substitution that is always refused in practice, or a self-employed person appearing on the permanent staff's weekly schedule, carries more weight than the text above the contract. Therefore, only write down what you actually perform, and adjust the execution if you deviate.

Provisions that are often included but are not allowed

• Absolute prohibition on direct subcontracting. In the case of secondment, Article 9a of the Waadi Act prohibits impediments to starting work for the hirer after the assignment has ended. Case law assumes that this may also apply to self-employed persons. A reasonable takeover fee is more defensible than a penalty clause.
• Instructional authority for the intermediary. That is incompatible with mediation and pushes the structure towards a loan arrangement.
• Payment via the intermediary. Forwarding the payment effectively makes him a party to the contract and may lead to an obligation to withhold.
• Guarantee of result. The intermediary has a best-efforts obligation in the selection process, but not responsibility for the work delivered.
• Unlimited liability. Limited to the commission of the relevant placement, with the exception of intent and willful recklessness.

Brief practical example

A software company hires two developers through an intermediary. In the first draft, the intermediary invoiced the company an hourly rate and paid the developers directly. That is not mediation but on-demanding, resulting in Waadi registration and hirer's liability. After the adjustment, the developers invoice directly and the intermediary receives a 12 percent commission. The same collaboration, a fundamentally different risk profile.

Honest recommendation

You do not need a lawyer for a one-off introduction of a clearly defined freelancer for a fixed fee, without exclusivity and without penalty clauses. A brief written agreement regarding the fee, the due date, and the role of the intermediary is sufficient, plus a proper confirmation of assignment between the client and the freelancer.

Do engage someone if you intend to use the contract as a standard template for multiple placements, if it includes exclusivity, a takeover fee, or a non-compete clause, if you plan to invoice yourself with a margin, or if the hired workers perform the same work as your permanent staff. These are the points where things go wrong in practice, and a retroactive assessment of payroll taxes costs many times more than drafting it.

Read more: what is a freelance mediation agreement and have a freelance mediation agreement drafted. You can arrange this directly via the freelance mediation agreementpage.

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