IT projects can be complex and although supplier and customer like to regard each other as partners, interests diverge. This can cause IT projects to come under pressure or actually derail as a result of differences of opinion about the scope, price and/or delivery date of the project.
Mediation: when is it useful?
If parties (think they) cannot solve the problem without help and prefer to avoid going to court, it is wise to consider mediation as an alternative form of dispute resolution. IT mediation is suitable for many IT disputes, and especially if:
Parties would like to discuss all possible solutions to settle the conflict, do not want to limit themselves to purely legal positions and do not want to leave the decision to a judge, because of the uncertainty.
Parties need guidance from an experienced authority who can provide structure in the conversation between the parties in an impartial manner and can help clarify the parties’ interests in a more informal atmosphere.
The parties would like to continue working together in the future and only the conflict possibly prevents them from doing so. Mediation can help restore trust between the parties.
Parties have an interest in talking to each other in a confidential atmosphere without the risk that what is said can be used against them in a legal procedure.
If there is no willingness to try to work things out together, mediation seems less suitable and in any case a number of obstacles will have to be overcome before the mediation can be brought to a successful end.
How does mediation work?
It is customary to start an IT mediation with an application for it by one of the parties or both parties jointly. The first important step is to determine what the parties want to discuss in the mediation. What problem, difference of opinion or conflict needs to be solved? Furthermore, procedural agreements (including confidentiality) and business agreements (about the costs of the mediation) need to be made.
Central to mediation are one or several conversations in which both parties can present their side of the problem and the parties try to reach possible solutions together. The final solution that is acceptable to both parties will be recorded in a settlement agreement. The mediator can help with this if necessary.
Throughout the process, the parties themselves keep control and everything is done on a voluntary basis. The mediator’s role is primarily to guide and monitor the process in a neutral manner. Thus, the mediator will not impose a (binding) decision on the parties.
What else can you do?
Perhaps the most important thing to prevent a dispute is to ensure that the parties understand each other really well before the start of an IT project. If the project is too big and/or too uncertain to understand each other well, consider breaking the project down into steps and/or agreeing on clear moments when the project can be stopped in between without losing sight of the interests of both parties. Of course, you can also stipulate mediation as a dispute resolution tool in the agreement.
Want to know more?
If you are involved in an IT conflict and would like to know whether IT mediation could be a solution, please feel free to contact us. Huub de Jong is an IT mediator associated with the Foundation for the Settlement of Automation Disputes (Stichting Geschillenoplossing Automatisering, ‘SGOA’) and can tell you more about IT mediation and other forms of dispute resolution.