In this contribution an overview is given of the most recent developments with regard to commercial dispute management and its legal context, in particular in the Netherlands. Firstly, a focus is put on the importance of integral conflict management on the basis of ADR/EDR from the perspective of risk management and cost control. Secondly, recent developments with regard to effective dispute resolution, in particular in government policy, ADR/EDR and in the legal context are discussed. The judicial and the extrajudicial system offer conflict parties various possibilities to effective and efficient dispute resolution. Further, special attention is paid to mediation clauses in commercial contracts. With regard to the European Directive of 21 May 2008 on mediation in civil and commercial matters, Directive 2008/52/EC, its consequences to the Dutch legal system and its importance for commercial dispute resolution management are discussed.

This contribution examines the European Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters and deals with the question whether the Belgian law on mediation, namely Articles 1724 to 1737 of the Belgian Judicial Code, as introduced into the Belgian law in 2005, need to be amended in the light of the Directive. It concludes that in some aspects the Belgian law ought to be improved so to implement some provisions of the Directive not yet dealt with in the law of 2005. It recommends to include in the Belgian law a definition on mediation, and also to stipulate which Belgian institution in particular shall provide the requested information on mediation and communicate with the European authorities. The contribution also suggests to consider introducing into the Belgian law a mechanism to promote mediation through incentives and/or sanctions, for which the measures recently adopted in the English legal system might possibly serve as an example.

In TMD 2009-2 the article ‘Case study: the international CSR conflict and mediation. Supply-chain responsibility: western customers and the Indian textile industry’ was published. In this article, Tineke Lambooy describes the ins and outs of the multiparty dispute between G-Star, in origin a Dutch company, the Indian-Italian Fibres & Fabrics, the employees of Fibre & Fabrics International, the governments involved and a number of non-governmental organisations striving for good labour relations and labour conditions. Lambooy’s article resulted in four reactions that are published in this article.

December 2008 over 2.000 lawyers were asked by an online questionnaire about their view on referral to mediation. The referral provision to mediation is well-known amongst lawyers; over 90% of the lawyers are acquainted with it. A majority of these lawyers sees court referral to mediation as a valuable supplement in general within the traditional court procedure. Some of them, however, see it as a valuable supplement in certain kinds of cases.There appears to be a correlation between experience with and attitude towards mediation: a lawyer who has gained more experience with mediation, for example by attending one or more mediation sessions, has a more positive view and as a result in the future he will recommend mediation to his client more often.In family law cases, a lawyer’s advice to use mediation as a tool to solve a conflict, is more often accepted by a client, then it is in commercial cases. Lawyers would like to see some improvement in the timing of the mediation proposal by the court. Sometimes a proposal comes too early, sometimes it comes too late.The cooperation between lawyers and mediators is assessed positively by 90% of the lawyers. However, lawyers who do not attend one or more mediation sessions would like to receive more information about the progress. On the other hand, lawyers are satisfied about the information exchange with their clients during the mediation process.

The Legal Service Counter is an independent foundation providing free legal information and advice to Dutch citizens. When a client approaches the Legal Service Counter about a conflict with another party, it will inform the client about mediation. If the client is interested in mediation, three important issues will be discussed: 1. What is the status of the conflict? Has it already escalated or are the parties still on speaking terms? 2. Is negotiation possible and is the client prepared to negotiate? 3. What are the interests of both parties? If, after discussing these issues, the client is still interested in solving his conflict through mediation, the Legal Service Counter will contact the other party to discuss the situation from his point of view. When both parties agree to mediation, the Legal Service Counter will assist them in selecting a mediator. However, the intervention of the Legal Service Office as such sometimes already may suffice to improve the communication between and the ability of parties to solve their problems themselves.

Research shows that many companies are unfamiliar with Effective Dispute Resolution (EDR) methods. Increasingly however managers wish to effectively solve disputes. This has resulted in the development of a simple tool for managers. Our conflict resolution chart is based on a literature study of factors proven to play a role in the choice for a particular dispute resolution method. The conflict resolution chart was refined based on the answers of ten managers to a questionnaire about the developed tool. The manager can use the chart as a first indicator of what course of actions with regard to the conflict he has to take.

Since 1 January 2010 the Belgian Centre for Arbitration and Mediation has special rules for mediation in IT disputes. Flexibility and fastness are central to these rules.

On 19-20 November 2009 the Bucerius Law School in Hamburg (Germany) in cooperation with the Viadrina European University Frankfurt (Oder) held its third bi-annual colloquium on conflictmanagement. The subtitle ‘From the components to a system’ announced that a number of in-house developed systems on conflictmanagement would be presented. Presentations were held by in-house counsel of E.ON, SAP, Bombardier and Deutsche Bahn. In 2007 a number of large German companies founded the ‘Round Table Mediation and Conflictmanagement of the German Industry’. The colloquium demonstrated that important thought-efforts in the design of more value-adding systems resulted in intelligent schemes.