The Supreme Court of The Netherlands ruled on 12 July 2024 that the content of a mediation clause in a contract must be determined by interpreting that clause. In doing so, it comes down to the meaning that the parties mutually could reasonably attribute to the mediation clause in the given circumstances and what they could reasonably expect from each other. A mediation clause may be non-mandatory in nature. It is also possible for a mediation clause to oblige parties to mediation before commencing proceedings in court (or in arbitration). The nature of mediation does not preclude such an interpretation.
The question of when a party who so wishes may terminate its cooperation in the mediation process is also a matter of interpretation of the mediation clause. In any event, application of a mediation clause should not have the effect of unacceptably affecting the parties’ right to access to justice, which is also guaranteed by Article 6 ECHR.
If a mediation clause is to be interpreted to mean that the parties are obliged to mediation before commencing proceedings and a party commences proceedings without prior mediation, the court (or arbitrator) may, at the request of the other party, stay the proceedings to give the parties the opportunity to still comply with their mediation obligations. However, the judge or arbitrator is not obliged to such an adjournment. The court may decide not to stay the proceedings, for example because the case is too urgent to do so or because mediation is pointless.
The court interpreted the mediation clause agreed in this case to mean that it contained no binding obligation to mediation. The Supreme Court ruled that this interpretation was neither legally incorrect nor incomprehensible and was based on factual valuations reserved to the court.
