Conciliation or mediation is a concept that our neighbours to the north and most Anglo-Saxon countries have been familiar with for some time now. In Belgian positive law, mediation was introduced as an alternative form of dispute resolution by means of the Act of 21 February 2005.
Mediation is no miracle cure, but it offers a valid—and sometimes preferable—alternative to the standard proceedings in a number of cases. For the courts, which are faced with a steadily increasing workload that needs to be processed with ever decreasing resources, mediation can also provide an alternative to ease the load somewhat. Since the most recent judicial reform, all commercial courts are equipped with a fifth chamber which is always a conciliation and mediation chamber. In the introductory chamber, which is the first chamber where cases are always initially dealt with, the magistrates try and find out whether a new dispute that is being lodged can be mediated and also whether it is desirable for it to be mediated. After all, not every case is suitable for mediation: For example, the parties cannot enter into any agreement on public order matters, nor any agreements that run counter to common decency.
In order to discover whether mediation is not only possible but also desirable, courts try to establish numerous criteria. These criteria result in a questionnaire that can be presented to the parties.
Questions that may be suggested by the magistrates are:
- Would you like to have an impact on the resolution of your conflict?
- Will you still be dealing with the other party afterwards?
- What does the public nature of a public procedure mean to you?
- For how long have you already been doing business with each other?
- How was the relationship before the conflict arose?
- If you win the trial, will you have everything that you need?
- Is it more important for you that you win or that the other party loses?
These questions are inspired by a number of essential characteristics of the mediation procedure.
After all, mediation is:
- always confidential;
- always voluntary;
- always a way to resolve disputes in which the final solution is found by the parties themselves.
Experience shows that it is far more likely that the parties can still conduct normal commercial relations with each other after a mediated solution than after a legal action, regardless of who wins or loses the case. When searching for a mediated solution, the parties can also take elements into consideration that they do not wish to submit to a court, for whatever reason.
Mediation is highly recommended as a way to resolve disputes between parties for whom it is important to still—or once again—be on speaking terms with each other afterwards. Examples that come to mind are:
- between members of the same Board of Directors
- in family firms
- between parties who still have an ongoing professional relationship (e.g. IT expert/customer, and supplier/customer)
- between associates or partners
An accredited mediator plays a special role in the mediation procedure. Mediation conducted under the guidance of an accredited mediator has numerous advantages. For example, limitation periods can be suspended in some circumstances, and the average solution can provide the same prospect of enforceability as a court ruling. Furthermore, the accredited mediator is a professional who has received special training, giving him or her all the necessary skills to maximise the chances of the parties finding a solution. A word of caution, and a warning, are nevertheless in order here: the title of adjudicator or mediator is not protected and is in fact the subject of considerable confusion. For example, debt counsellors are not accredited mediators and some social mediators are public servants, whereas other social mediators are indeed accredited mediators. Criminal mediation is not usually performed by accredited mediators. Lastly, as in any field, there are some rogue operators who call themselves mediators, without having undergone any training that makes them specifically suitable to act as a mediator. If you can no longer see the wood for the trees, make sure that the mediator you call on does not simply call himself or herself a mediator, but is also a legally accredited mediator.
In the event of doubt, you can always consult the website of the Federal Mediation Commission (www.fbc-cfm.be) to check which mediators are officially accredited and which are not.
Chairman of Lawyer-Mediators at the Ghent Bar Association