At the NAI Mediation Rules Launch Event, held on 30 June 2026 at the A&O Shearman office in Amsterdam, mediation in commercial disputes took centre stage. The event marked the launch of the NAI’s new Mediation Rules, expanding its dispute resolution offering.
The event opened with welcoming remarks by Hilde van der Baan, Chair of the NAI Board and partner at A&O Shearman.
Interactive panel discussions
The programme featured three engaging panel discussions covering various aspects of commercial mediation. Below is a summary of the key insights that emerged from these discussions.
Panel 1: Eva Knipschild (Reuling Schutte, moderator), Jan Willem Loman (Youmanfischer), Eline van Tijn (Mediation Amsterdam) and Peter Kamminga (Kamminga Mediation)
Mediation first: smart dispute resolution or just another procedural hurdle?
You can never be too quick to start mediation, and mediation is suitable for every type of dispute. However, mediation works best when parties participate voluntarily. Mediation success depends heavily on proper preparation, by the mediator and by the parties. Parties should, for example, think about what the minimum outcome should be, what is covered by insurance and what the chances in court are. The mediator must bear in mind that parties are often reluctant. The mediator can try to coach parties into a constructive mediation, for example by personal intakes. Points that need to be judged can be a hurdle. But here, too, preparation can help to get that clear.
A ‘failed’ business mediation is rarely a waste of time; it clarifies the dispute and the interests. In a dead lock a mediator can help participants to find a solution by a mediator’s proposal or by proposing brackets.
Panel 2: Tomas Vaal (NAI, moderator), Nelleke van Thiel-Wortmann (Reuling Schutte), Manon Schonewille (Tool-Kit Company) and Aloysius Goh (International Mediation Institute)
The pro-active mediator. How far should a mediator go?
The ultimate aim of mediation is to jointly find a way out of the situation. The least goal is to get more clarity. This requires a proactive mediator from the beginning. The mediator must bring structure to the process and the content. This starts with an operational call to discuss who, what and when, followed by confidential, separate meetings. The mediator must try to overcome the resistance of the parties, by listening, asking questions and come with suggestions regarding the process. In business mediations the who is of utmost importance; who is authorized to make certain decisions and is that person present of available? It is also important to take the business dynamics into account.
Party autonomy is always key, but that doesn’t mean a mediator cannot be proactive. Parties in business mediation often ask for a proactive mediator. That certainly doesn’t mean that the mediator must come up with a solution; a proactive mediator is not an arbitrator. It means trying to bridge the gap with suggestions on what information can be helpful, taking leadership, controlling the process or a mediator proposal and by that trying to shake parties out of their predetermined mindset.
Golden tip, if any, is to involve the lawyers. Not necessarily at the mediation table, but the lawyers should be kept in the loop.
Panel 3: Gerard Meijer (Linklaters, moderator), Jacques de Waart (Kantoor De Waart), Cyril Dumoulin (Shell) and Jeremy Lack (Quadrant Chambers)
Combining mediation, arbitration and binding advice (expert determination)
The question should not be arbitration or mediation? but what is the best strategy? Not only from the outset, but also when a dispute arises. All involved, counsel, mediator, other stakeholders and even an institution should consider what is best. Mandatory mediation with an option to opt out after the first meeting is used in the USA. But the obligation to mediate can lead to resistance. An alternative for mandatory mediation is an obliged conflict diagnosis where someone shows parties the options. It can be helpful to see mediation and arbitration as integrated, instead of subsequent processes. There should be flexibility and more cooperation between arbitrator, mediator and adjudicator.
Conclusion
The new NAI Rules have an option to combine and integrate mediation and arbitration (Article 14). The discussion also touched on whether the NAI Secretariat should play a more active role in guiding and assisting parties in identifying and selecting the most appropriate ADR process for their dispute. This question is likely to receive further attention as the NAI continues to develop its dispute resolution services.
To learn more about the NAI’s new Mediation Rules, click here.
