Family businesses increasingly engage mediators

Family businesses and wealthy individuals are discovering mediation as a means to resolve internal conflicts without the publicity of a lawsuit. Politicians have also discovered it as an alternative to relieve the overburdened legal system, according to an analysis by Fambizz.nl, which today published the Fambizz Mediation Top 30.

Trying to resolve a conflict yourself or going to court. For a long time, these were the only two options people had. But a phenomenon that has blown over from the United States offers a middle ground and is gaining popularity: mediation. It is often used in conflicts in family businesses, such as divorces and succession issues, according to an analysis by Fambizz.nl. “Especially when it comes to divorces, it has become increasingly obvious to go to a mediator,” says Priska Voskuil – van Dijk, lawyer and mediator at De Boorder Schoots Familierechtadvocaten & Mediators.

Mediation Initiative Bill
There is currently a bill before the House of Representatives that should improve the quality of mediation and make mediation part of the legal process. And that was badly needed, according to Peter-Jan Smits, MfN member (Mediatorsfederatie Nederland, formerly NMI) and working as a mediator. “In the US, there are three counters: jurisdiction, arbitration and mediation. American judges can thus oblige litigants to first resolve the problem through mediation. A similar system would also be welcome in the Netherlands.” Smits refers to the high costs that litigants currently incur when they take the step to court. “Moreover, the system is overloaded and by means of mediation we can considerably relieve judges.”

However, the bill also attracted some criticism. The MfN did praise the initiative and called it a 'solid framework', but stated that 'government interference goes too far' and that this jeopardises the independent nature of the mediator. Nevertheless, a law on mediation is necessary, says Smits. "The bill also addresses the quality of mediation. This means that mediators will soon have to put their house in order, otherwise they will no longer have a right to exist. The Netherlands has a few thousand certified mediators; a bizarre number. With the stricter requirements of the mediation law, the quality will increase considerably. I expect that there will soon be only 200 mediators left."

Independent role
The mediator wears a different hat than the lawyer. Voskuil – van Dijk, who is a member of the Association of Family Lawyers and Divorce Mediators (vFAS), makes a clear distinction between the two roles. “If I have been a lawyer for one of the parties, I can no longer act as a mediator. I am then no longer considered independent.” When is it best to opt for mediation? This is particularly the case when people realise that they still have to continue together, for example because there are children involved. “You keep running into each other and it is better to do that in a normal way, especially for the children.”

Preventing lawsuits
In family businesses, the common interest plays a role, which must be continued. This makes mediation an attractive alternative to a lawsuit. This applies not only to divorces, but also to other conflicts within the family. “I do have the impression that mediation is used more often. This is to prevent lawsuits in which people make each other's lives miserable and cloud the understanding. Privacy also plays a role in this. A lawsuit is often public and mediation remains confidential in principle.”

Own solution
Does mediation help? “Usually yes,” says Voskuil – van Dijk. “It certainly doesn’t always work, but you can usually achieve a lot. Especially if people are motivated to find a solution from the start.” Because let’s be clear: mediation requires something from the participants, it’s hard work. Together they come to an agreement, which they can also record in black and white. “Some people like the fact that there is a judge who makes the decisions, but the advantage of mediation is that you can come to your own solutions. The acceptance of such an agreement is usually greater among all parties than when a third party forces them to do something.”