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Mediation in the Netherlands is a voluntary negotiation in which a neutral mediator helps businesses reach their own settlement, while binding advice (bindend advies) under Dutch law lets a third party, often an expert, decide for them. As a Dutch litigation lawyer at MAAK Advocaten in Amsterdam, I advise foreign companies which route fits their dispute and represent them in it.
This article is for companies abroad in a dispute with a Dutch business partner. For all routes, including the courts and arbitration, see commercial dispute settlement in the Netherlands.
What is mediation under Dutch law?
Mediation is a structured negotiation in which the parties try to reach their own settlement with the help of a neutral mediator. The mediator has no power to decide. You are only bound by what you sign at the end.
The Supreme Court describes mediation as negotiations guided by a neutral mediator towards an outcome both parties support (Supreme Court 12 July 2024, ECLI:NL:HR:2024:1078, para. 3.2.1). The Netherlands has no general mediation act for business disputes. The statutory rules that do exist, in the Dutch Act implementing the Mediation Directive, apply only to cross-border disputes within the EU (Articles 1 and 2 of that Act).
The Act refers to parties domiciled in different EU Member States, Denmark excepted. A company based in the United Kingdom or the United States should not count on it. Without the Act, the mediator has no statutory right to refuse to testify (Article 5) and starting mediation does not interrupt limitation (Article 6): secure confidentiality in the mediation agreement and limitation by a written notice.
What is binding advice (bindend advies) under Dutch law?
Binding advice is an agreement in which the parties let a third party decide their dispute, or one disputed point, and bind themselves to that decision in advance. Dutch law treats the outcome as a settlement agreement, not as a judgment.
The basis is Article 7:900(2) Dutch Civil Code: a settlement agreement (vaststellingsovereenkomst) can rest on a decision entrusted to a third party. Binding advice is not arbitration (Article 7:900(4)). In a property-law matter, which includes commercial disputes, the settlement remains valid even if it conflicts with mandatory law, unless it is contrary to public policy or morality (Article 7:902).
In business contracts, binding advice is used for a question an expert answers better than a judge: the value of shares, an earn-out calculation, a price review, or whether a machine meets the specifications.
Mediation, binding advice or arbitration: what is the difference?
The difference is who decides. In mediation the parties decide together; in binding advice an expert or other third party decides; in arbitration an arbitral tribunal gives an award that can be enforced once a Dutch court grants leave.
| Question | Mediation | Binding advice | Arbitration |
|---|---|---|---|
| Who decides? | The parties themselves | The binding adviser | One or more arbitrators |
| Legal basis | Mediation agreement; the outcome is a settlement agreement (Article 7:900(1) Dutch Civil Code, DCC) | Settlement agreement with a decision by a third party (Article 7:900(2) DCC) | Arbitration agreement (Article 1020 Dutch Code of Civil Procedure, DCCP) |
| Can a court still decide the dispute? | Yes, if no settlement is reached | Only if the advice is annulled, void or not given within a reasonable period (Article 7:904(2) DCC) | No, if a party invokes the arbitration agreement before any other defence (Article 1022 DCCP) |
| Directly enforceable? | No; an enforceable title is needed (Article 430 DCCP) | No; same as mediation | After leave (exequatur) from the court (Article 1062 DCCP) |
My first question to a client is not legal: do you still need this counterparty a year from now? If you do, I recommend mediation, because you decide the outcome together. If the dispute turns on one technical or financial figure, binding advice by an expert is usually quicker. I advise against both when the other side mainly wants to buy time, or when assets or evidence must be secured first.
Has your Dutch counterparty proposed mediation or binding advice? Send me the contract and the proposal through our page for a Dutch litigation lawyer, and I will tell you which route serves your position.
Is a mediation clause in a Dutch contract binding?
It can be. Under Dutch law a mediation clause may oblige the parties to attempt mediation before going to court or arbitration, but whether your clause does so depends on how it is worded and interpreted.
The Supreme Court held in 2024 that the content of a mediation clause follows from interpretation: what the parties could reasonably expect of each other. That the contract is between professional parties does not by itself make the clause obligatory (ECLI:NL:HR:2024:1078, para. 3.2.2).
If a party ignores an obligatory clause and starts proceedings, the court or arbitrator may stay the case so that mediation can still take place, but need not do so, for example when the matter is urgent or mediation is pointless (para. 3.2.3).
That is why I write into every mediation clause that summary proceedings (kort geding, Article 254 Dutch Code of Civil Procedure) and prejudgment attachment remain available, with a fixed period within which mediation must start.
Important: If your contract sends disputes “first to mediation” and you need an urgent order against your Dutch counterparty, the clause can be used to slow you down, and the court decides whether to stay the case (ECLI:NL:HR:2024:1078). Have a Dutch litigation lawyer review the clause before you sign the contract, and again before you issue a summons.
How do you challenge a binding advice under Dutch law?
Only on narrow grounds. A party can annul a binding advice if, given its content or the way it was reached, being bound by it would be unacceptable by standards of reasonableness and fairness. A mere error is not enough.
The test is in Article 7:904(1) Dutch Civil Code. The Supreme Court calls it a strict standard: only serious defects count, and with a procedural error it matters whether, and how far, the error caused harm (Supreme Court 2 June 2023, ECLI:NL:HR:2023:822, para. 3.5). If the advice is annulled, the court can decide itself, unless the agreement or the nature of the decision requires otherwise (Article 7:904(2)).
In that case two valuers, one per party, valued improvements to leased business premises. For an assignment like this, the binding advisers must act independently of the party that appointed them and, unless agreed otherwise, apply due process: both parties must have the same chance to react to a draft report, and in principle each must be able to respond to information from the other (paras. 3.6 and 3.7).
Important: If the binding adviser sends a draft report to your counterparty only, or relies on figures you have never seen, object in writing at once: under Article 7:904 Dutch Civil Code only a serious defect lets you escape the decision. Have a Dutch litigation lawyer check the procedure before the final advice is issued.
Does mediation or binding advice stop the limitation period?
Not automatically. Starting mediation interrupts limitation only in a cross-border EU dispute. A step to obtain binding advice does interrupt it, provided you inform the other party promptly and the step actually leads to a binding advice.
In a cross-border dispute, a new period starts once mediation ends by written notice or after six months without any step, capped at three years (Article 6 of the implementing Act). The rule for binding advice is in Article 3:316(3) Dutch Civil Code; if no binding advice follows, a new step within six months keeps the interruption alive (Article 3:316(2)).
In all other cases you interrupt limitation yourself. For a claim for performance, a written demand or a written notice unambiguously reserving your right to performance is enough (Article 3:317(1) Dutch Civil Code). See also preventing the limitation of a claim under Dutch law.
Important: If your company is based outside the EU and the only other party is your Dutch customer, the cross-border rule will usually not apply, so limitation may keep running during months of mediation. Have a Dutch litigation lawyer check this and send a written notice reserving your rights under Article 3:317 Dutch Civil Code before the first mediation session.
How do you enforce a mediated settlement or a binding advice?
Neither is directly enforceable. If the other party does not comply, you need an enforceable title: a Dutch judgment, a notarial deed or the official record of a settlement reached in court.
Under Article 430 Dutch Code of Civil Procedure, Dutch judgments and authentic instruments executed in the Netherlands, such as a notarial deed, can be enforced. A signed settlement agreement is neither. The Mediation Directive requires Member States to allow the content of a written mediation agreement to be made enforceable, for example in a court decision or an authentic instrument (Article 6 Directive 2008/52/EC). In the Netherlands this is done through a notarial deed or by recording a settlement reached at a court hearing in an official record issued in enforceable form (Article 89(1) DCCP). Recital 11 states that the Directive should not apply to expert determination, the closest international equivalent of binding advice.
Mediation rarely fails at the table; it fails in the preparation and the drafting. “The parties will consult” is not an agreement. That is why I draft the settlement text myself, with amounts, dates and what happens if a deadline is missed. More on its content: settlement agreement under Dutch law.
What should you do when your Dutch counterparty proposes mediation?
Do not say yes or no straight away. First establish what you want to achieve, what your alternative is if mediation fails, and which deadlines keep running in the meantime.
A Dutch court may also attempt a settlement at the hearing (Article 87(2)(c) DCCP) and, in a cross-border EU dispute, propose mediation at any stage (Article 3 of the implementing Act). What you can do yourself:
- put the facts, your goal and your alternative on one page;
- collect the contract, general terms, the main correspondence and a calculation of what the dispute costs you;
- decide who sits at the table, how far that person may go and who signs;
- agree with the mediator on confidentiality, the mediator’s fees and how the mediation ends.
At the table, you do the talking; mediation works best when business people speak for themselves. I prepare you, advise during the breaks and guard the text of what is agreed.
Practical example: a price review decided by binding advice
A hypothetical illustration: a German machine builder supplies a production line to a Dutch food company. The contract sends any disagreement about the final price adjustment to an independent engineer as binding advice, and other disputes to mediation. As both parties are EU-based, starting that mediation interrupts limitation. The engineer shares his draft report only with the buyer and sets the adjustment in the buyer’s favour.
The supplier’s position now depends on the procedure more than on the figure: a serious procedural defect that harmed the supplier can make the advice voidable under Article 7:904(1) Dutch Civil Code. I would first put the objection on record, then try to settle the price in mediation, and only then ask the court to annul the advice.
When should you instruct a Dutch lawyer for mediation or binding advice?
At four moments: when you draft the dispute clause, before you agree to mediate or appoint an adviser, before you sign a settlement, and as soon as a binding advice looks wrong.
If mediation fails and the case goes to a Dutch district court, you need a lawyer outside cantonal cases (Article 79(2) DCCP). The preparation is not lost: the facts and documents are already in order. For urgent measures, see our page on summary proceedings in the Netherlands.
How does MAAK Advocaten handle mediation and binding advice?
We act as the lawyer of one party, not as mediator or binding adviser. The mediator is neutral; we are on your side. We work in four steps:
- We read the contract, the dispute clause and the correspondence, and secure the limitation periods.
- We set out the facts, your commercial goal and your alternative, and advise on mediation, binding advice or proceedings.
- We prepare you for the mediation or the binding advice procedure and draft the settlement text.
- Without a solution, we act in summary proceedings or on the merits, at first instance and on appeal, or in arbitration if the contract requires it.
Frequently asked questions about mediation and binding advice in the Netherlands
Is mediation legally binding in the Netherlands?
Mediation itself is not binding: the mediator decides nothing and either party can walk away. What the parties sign at the end is binding as a settlement agreement under Article 7:900(1) of the Dutch Civil Code, even where it departs from their previous legal position.
Is mediation mandatory in the Netherlands?
No general rule makes mediation mandatory for business disputes in the Netherlands. A contract can oblige the parties to try mediation first, depending on the wording of the clause. If a party ignores such a clause, the court may stay the proceedings, but it is not required to.
Is mediation confidential in the Netherlands?
Only as far as the parties agree. Dutch statutes contain no confidentiality rule for domestic mediation, so it belongs in the mediation agreement. In a cross-border EU dispute, the mediator and those involved may refuse to testify if confidentiality was expressly agreed.
Can you appeal against a binding advice?
No. A binding advice cannot be appealed like a judgment. A party can only ask the court to annul it if being bound would be unacceptable by standards of reasonableness and fairness, under Article 7:904 of the Dutch Civil Code. The court can then in principle decide the matter itself.
When should I involve a Dutch lawyer in mediation or binding advice?
Before you sign the dispute clause, before you agree to mediate and before you sign any settlement. Whether a clause binds you, and what a settlement gives up, needs a legal assessment. At MAAK Advocaten in Amsterdam we make that assessment and represent companies at first instance and on appeal.
Primary sources
- Article 3:316 Dutch Civil Code: interruption of limitation, including by a step to obtain binding advice
- Article 3:317 Dutch Civil Code: interruption of limitation by written demand or notice
- Article 7:900 Dutch Civil Code: settlement agreement and decision by a third party
- Article 7:902 Dutch Civil Code: validity of a settlement that conflicts with mandatory law
- Article 7:904 Dutch Civil Code: annulment of a binding advice
- Article 79 Dutch Code of Civil Procedure: representation by a lawyer
- Article 87 Dutch Code of Civil Procedure: oral hearing and attempt at settlement
- Article 89 Dutch Code of Civil Procedure: settlement at a hearing recorded in an enforceable official record
- Article 254 Dutch Code of Civil Procedure: summary proceedings
- Article 430 Dutch Code of Civil Procedure: enforceable titles
- Article 1020 Dutch Code of Civil Procedure: arbitration agreement
- Article 1022 Dutch Code of Civil Procedure: lack of jurisdiction of the court where arbitration was agreed
- Article 1062 Dutch Code of Civil Procedure: leave to enforce an arbitral award
- Dutch Act implementing Directive 2008/52/EC: Articles 1–6 on cross-border mediation
- Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters: Articles 1, 2 and 6; recital 11
- Supreme Court 12 July 2024, ECLI:NL:HR:2024:1078: interpretation and effect of a mediation clause
- Supreme Court 2 June 2023, ECLI:NL:HR:2023:822: annulment of a binding advice; independence and due process of binding advisers
Facing a proposal to mediate, or a binding advice you cannot accept? Put your contract and the correspondence to me: call +31 20 210 31 38 or send your question through our page for a Dutch litigation lawyer.
