Dutch Supreme Court Clarifies Legal Status and Implications of Mediation Clauses

In a judgment of 12 July 2024, the Supreme Court of the Netherlands (Hoge Raad) clarified the legal status and implications of mediation clauses in commercial contracts. The ruling confirms that such clauses are either non-binding or obligatory, depending on the wording and the parties' reasonable expectations. The court also emphasized that mediation clauses should not unreasonably impair a party’s access to the courts or arbitration, as protected by Article 6 of the European Convention on Human Rights (ECHR).

The case involved a dispute between two companies in the occupational health and safety services sector, which had agreed to a mediation clause stipulating that disputes arising from their agreement should first be resolved through mediation, followed by arbitration if unresolved. 

When one party sought the appointment of an arbitrator through the Rotterdam District Court, the other party objected, arguing that mediation was required first, according to the mediation clause. The Rotterdam court, the arbitral tribunal, and the Court of Appeal interpreted the mediation clause as not containing a legally strict obligation to attempt mediation before arbitration and rejected this argument. The Supreme Court upheld this interpretation, stating that the mediation clause did not impose a binding obligation to attempt mediation and that the voluntary nature of mediation and the fact that the party who drafted the clause was the one who invoked it were relevant circumstances supporting the interpretation of the Court of Appeal. 

Commentary

The ruling provides an important guidance for parties who wish to include mediation clauses in their commercial contracts, and for courts and arbitrators who must interpret and apply such clauses. The ruling confirms that mediation clauses can be a valid and effective way of promoting alternative dispute resolution and avoiding costly and lengthy litigation or arbitration. 

The ruling, however, is a reminder that mediation clauses should be drafted clearly and precisely, taking into account the parties' professional status and the commercial nature of the agreement, in order to avoid ambiguity and uncertainty about their legal consequences. 

Moreover, the ruling highlights that mediation clauses should not be applied in a way that unacceptably impairs parties' access to the courts or arbitration, as protected by Article 6 of the ECHR. This means that courts and arbitrators can stay proceedings to allow for mediation if a clause is deemed obligatory, but are not required to do so if the case is urgent or if mediation appears futile. One of the key lessons is that adequate drafting is key for risk management.