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What is a mediation agreement? It is the agreement in which the parties and the mediator agree to attempt to resolve their dispute through mediation, and under what conditions this will take place. The core of that contract lies in three agreements: mediation is voluntary, everything discussed is confidential, and the mediator is impartial. If the mediation is successfully concluded, the parties record the outcome in a settlement agreement (Article 7:900 of the Dutch Civil Code). The mediation agreement therefore regulates the process, not the content of the solution.
The short answer
- A mediation agreement stipulates that the parties attempt to resolve their dispute through mediation.
- The core is voluntariness: every party may withdraw at any time.
- Everything discussed is confidential; a duty of confidentiality applies.
- The mediator is impartial and independent and does not make the decision himself.
- The MfN Mediation Rules apply to an MfN registered mediator.
- A successful mediation ends in a settlement agreement (Art. 7:900 BW).
What exactly is a mediation agreement?
Mediation is a form of conflict resolution in which a neutral third party, the mediator, guides the parties to reach a solution themselves. The mediator does not make decisions or impose anything; he steers the conversation. The mediation agreement is the document that initiates this process. It sets out the ground rules to which the parties and the mediator commit before the substantive discussions begin. The contract therefore concerns the 'how', not the 'what' of the solution.
It is important to distinguish between the mediation agreement and the outcome. The mediation agreement governs the process. If the parties reach an agreement, that outcome is recorded separately in a settlement agreement. This is the binding agreement by which they end their dispute. The two documents therefore have different roles and follow one another.
Voluntariness and the role of the mediator
Voluntariness is one of the fundamental principles of mediation. No one can be forced to participate, and each party may terminate the mediation at any time. This may seem non-binding, but it is actually a strength: because the parties remain voluntary, the willingness to seek a solution that works for both grows. The mediation agreement explicitly establishes this voluntariness.
The mediator is impartial and independent. He does not take sides, does not give a binding judgment, and has no interest in the outcome. His task is to structure the conversation, bring the interests to the table, and help the parties reach agreements themselves. If an MfN-registered mediator is involved, the MfN Mediation Regulations and the associated Code of Conduct apply. These rules safeguard the independence and quality of the process.
Confidentiality and secrecy
Confidentiality is the second core principle. Everything discussed during the mediation remains within the mediation. Parties and the mediator commit to confidentiality, and agreements and documents from the process may not, in principle, be used in subsequent proceedings. This creates a safe environment in which parties can speak openly without a ruling later being used against them.
Confidentiality is contractually regulated in the mediation agreement. It is advisable to determine the extent of this confidentiality and which exceptions apply, for example, to the final settlement agreement or to information that was already public. Without a clear confidentiality clause, mediation loses a large part of its value, as the parties will then adopt a reserved attitude.
The settlement agreement as the outcome
If the mediation is successful, the parties record their agreements in a settlement agreement. This is regulated in Article 7:900 of the Dutch Civil Code: parties bind themselves, to end or prevent uncertainty or dispute, to a determination of what applies between them. The settlement agreement is binding and replaces the previous uncertainty with a fixed agreement. Unlike a court judgment, it does not automatically constitute an enforceable title; for that, a notarial deed, for example, is required.
Two business partners become embroiled in a conflict regarding the direction of their company. Instead of litigating, they sign a mediation agreement and sit down with an MfN-registered mediator. After several discussions, they reach an agreement on a buyout arrangement. They formalize this agreement in a settlement agreement. In this way, the dispute ends without a judge and with an agreement shaped by both parties themselves.
Honest recommendation
You do not always need your own lawyer to start a mediation. If you work with an MfN-registered mediator, they usually bring a proven mediation agreement that properly regulates the voluntary nature, confidentiality, and role of the mediator. This is perfectly adequate for a straightforward dispute. However, the situation changes regarding the outcome. As soon as you reach agreements that are recorded in a settlement agreement with financial or long-term consequences, it is wise to have them reviewed by your own lawyer. After all, the mediator is impartial and does not specifically represent your interests.
Want to read more? View the mediation agreement on our contracts page, read how to drafting a mediation agreement , and what it costs to have a mediation agreement drafted .
Frequently Asked Questions
It is the agreement in which the parties and the mediator agree to resolve their dispute through mediation and under what conditions. The core elements are voluntariness, confidentiality, and the impartial role of the mediator. The agreement regulates the process, not the content of the solution.
Yes. Voluntariness is a guiding principle: no one can be forced to participate, and each party may terminate the mediation at any time. It is precisely this freedom that increases the willingness to reach a workable solution together.
Everything discussed during the mediation remains confidential. The parties and the mediator are bound by a duty of confidentiality, and documents from the process may, in principle, not be used in subsequent proceedings. This allows parties to speak openly without the risk of a ruling being used against them.
The mediator is impartial and independent. He does not make decisions or impose anything, but guides the conversation, identifies the interests, and helps the parties reach agreements themselves. With an MfN-registered mediator, the MfN Mediation Regulations and the Code of Conduct apply.
The MfN Mediation Rules are the regulations of the Dutch Mediation Federation that apply when you work with an MfN registered mediator. Among other things, they safeguard the independence, confidentiality, and quality of the mediation process.
By means of a settlement agreement (Art. 7:900 BW). In this agreement, the parties bindingly record their arrangements to end the dispute. That agreement replaces the previous uncertainty with a firm arrangement shaped by both parties themselves.
The settlement agreement is binding between the parties, but does not automatically constitute an enforceable title like a court judgment. If you want immediate enforceability, the agreement can be recorded in a notarial deed, for example.
