Mediation in Practice: Empowering Legal Professionals with Strategic Tools for Commercial Disputes

On 28 May, ICC Netherlands joined forces with CMS and the Academy of Legal Mediation for a highly interactive and well-attended afternoon dedicated to exploring the strategic use of mediation in commercial disputes. Held at the CMS offices in Amsterdam, the session brought together legal practitioners, both in-house and external counsel, for a hands-on program of expert insights, practical tools, and a live demonstration of mediation in action.

This session was part of ICC NL’s ongoing efforts to support effective dispute resolution across borders, empower professionals with practical tools, and promote the strategic inclusion of mediation in contract design and corporate policy.

Setting the Scene: The Mediation Clause as a Strategic Tool

The afternoon opened with an engaging presentation by Bart-Adriaan de Ruijter, Partner Corporate Litigation at CMS, Jeremy Mash, Partner at CMS UK, who provided in-depth guidance on how to draft effective dispute resolution clauses that include mediation. Drawing from Dutch case law, particularly the 2024 Supreme Court ruling (ECLI:NL:HR:2024:1078), he explained how mediation clauses can be interpreted as binding obligations and under what circumstances courts may suspend proceedings to enforce them.

Bart-Adriaan highlighted common pitfalls in multi-tier clauses: the importance of clarity on whether mediation is a condition precedent, the mechanism for appointing a mediator, the timeframe for mediation, and the consequences of non-compliance. Model clauses from ICC and other organisations were presented as best-practice examples, with a call to legal professionals to embed these tools more systematically into commercial agreements.

Meanwhile, Jeremy offered a UK perspective. He explained the shift in English jurisprudence toward enforcing mediation clauses and the impact of recent cases like Churchill v Merthyr Tydfil (2023). Mash made a strong case for the pre-emptive value of mediation, preventing disputes from escalating and preserving relationships. He warned, however, of the risk of token participation unless the process is well-structured and meaningful incentives are in place.

Mediation Essentials: A Crash Course for Legal Counsel

Next, internationally recognised business mediator Manon Schonewille delivered a dynamic crash course on core mediation techniques. She guided the audience through the mediation process step-by-step, focusing on the mediator’s role, party autonomy, and key techniques such as summarising, reframing, and facilitating communication.

A central concept of the session was the shift from positions (what parties say they want) to underlying interests (what they really need), captured in the ICNM framework (Interests, Concerns, Needs, Motivations). As Manon explained, mediation is not about compromise, but about discovering mutual gains and building sustainable outcomes, especially valuable when emotions or long-term business relations are at stake.

Key takeaways included:

• The importance of structured opening statements.

• The strategic value of separating people, problem, and process.

• The use of tools like the INNOVADR quadrant to choose the right mediation style (facilitative vs evaluative, directive vs non-directive).

Seeing Mediation in Action

Perhaps the most appreciated part of the afternoon was the live mediation demonstration featuring Jeremy Lack, an international mediator and thought leader in dispute resolution innovation.

Through a role-play simulation, the audience was invited to observe, and actively comment on, a mediation scenario between two fictional business parties. The demonstration showcased different mediation styles, how parties navigate trust and power imbalances, and how mediators manage the process to bring clarity and de-escalation.

This segment not only offered a behind-the-scenes look at real-time mediation tactics, but also sparked lively discussion among participants on the challenges and opportunities of applying mediation techniques in high-stakes commercial disputes.

Reflections in Light of Recent Research

The event also aligned closely with findings from the 2024 PBM (Platform Business Mediation) research report, which was presented during the session.

Some key data points that resonated with the audience:

• 56.76% of companies and 41.76% of lawyers believe mediation is the most effective way to resolve business disputes, more than arbitration or litigation alone.

• The top reasons companies prefer mediation include preserving business relationships, faster resolution, and addressing root causes.

• However, many professionals still cite uncertainty around enforceability, unfamiliarity with mediation clauses, or lack of internal policy as reasons mediation is underused.

These findings underscore the importance of continued capacity-building and cultural change within legal teams and organisations.

A Call for Smarter Dispute Resolution

ICC Netherlands is committed to promoting dispute resolution methods that are practical, flexible, and efficient, supporting businesses not only in managing risk but also in safeguarding relationships and reputations.

With mediation now gaining stronger recognition, especially under the ICC Mediation, this session offered a timely reminder: well-drafted clauses and well-trained professionals are key to making mediation work.

We thank all our speakers for their contributions, and CMS for hosting this session in Amsterdam.

Top Tips for an Effective Mediation Clause

1. Be clear about intent → Is mediation voluntary, mandatory, or a precondition to arbitration/litigation?

2. Define the procedure → Specify the applicable rules (e.g. ICC)→ Clarify how and when the mediator is appointed

3. Timeframe matters → State when mediation should occur (e.g. within 30–45 days of dispute notice)

4. Avoid vague language → Phrases like “parties may consider mediation” lack enforceability→ Use firm language: “shall refer the dispute…”

5. Allow flexibility → Keep process design open where possible—many mediators use their own proven approach

6. Plan for what’s next → Mediation clause ≠ settlement clause. Spell out what happens if mediation fails

7. Reference known standards → ICC Mediation Rules or other reputable institutions give clarity and international consistency

Bonus tip: Use ICC Clause D if you want a robust, staged process: mediation first, arbitration if needed.

Interested in Learning More?

If you missed the session or would like to go deeper:

• Download the ICC model clauses for mediation and arbitration: iccwbo.org/dispute-resolution

• Explore mediation advocacy training: Academy of Legal Mediation

• Try the InnovADR Diagnostic Tool: innovadr.com/diagnostic

• Read the PBM Research Report: platformbusinessmediation.nl

  
  

Certificates of attendance and PO points are available for those who joined. For follow-up questions or guidance on implementing mediation in your practice, don’t hesitate to reach out to ICC Netherlands.