A lawyer

Mediate

What is mediation ?

Mediation is an alternative form of dispute settlement, whereby the solution to the conflict is not imposed by a judge, an arbitrator or an outside decision maker, but where the parties themselves reach a solution to their dispute with the help of a lawyer / mediator .

Of course, mediation can only result in success if the parties are prepared to listen to each other, to look jointly for compromises, to provide complete information to each other and to behave respectfully towards each other and not to take steps that will make mediation more onerous or will prevent the mediation process.

The lawyer / mediator has an independent position and is neutral.

He/she assumes the interest of parties jointly, not just the interests of one of the parties.

A mediator will provide legal information to the parties, and will confront them with various possibilities; he will assist them during the mediation and he records the agreement reached between parties in writing, in a so called mediation agreement.

The lawyer / mediator is a lawyer who has received a specific education into the art of mediation and who is recognized as such. He / she is also bound to update his/her mediation skills regularly.

Mediation is confidential in nature. The lawyer / mediator is bound by duty of confidentially and the parties are equally bound by this duty of confidentially (article 1728 of the Code on Civil Proceedings).

Should the mediation initiative not lead to a settlement, such a termination cannot operate to the detriment of one of the parties (article 1729 of the Code on Civil Proceedings).

The articles 1724 through 1737 of the Code on Civil Proceedings which have recently been introduced (Statute of the 21st of February 2005, Belgian State Journal, the 22nd of March 2005) deal with the voluntary and judicial mediation.

Mediation is an alternative form of dispute settlement, whereby the solution to the conflict is not imposed by a judge, an arbitrator or an outside decision maker, but where the parties themselves reach a solution to their dispute with the help of a lawyer / mediator .

Voluntary mediation

The parties may resort to mediation independently and irrespectively of any legal proceedings via "voluntary mediation" (Article 1730 through 1733 of the Code on Civil Proceedings). The parties will jointly select a mediator, or ask a third person to appoint such a mediator. The parties and the mediator will than record that what is agreed upon in a written mediation memorandum, signed by the parties and by the mediator.

Judicial mediation

Mediation can also take place in the framework of ongoing legal proceedings.This is known as the "judicial mediation" (Articles 1734 through 1737 of the Code on Civil Proceedings). During the ongoing Court case, the parties themselves can ask the Court to reach a solution to the dispute via mediation. Also the Court, at its own initiative, may suggest to the parties that mediation be given a chance, provided that parties agree with this.

The parties will then select jointly an approved mediator, whose selection will be ratified and mentioned in the Court’s decision. Should the parties reach an agreement, this agreement will be recorded in a written mediation memorandum by the parties and by the mediator, where after this mediation agreement will be Court approved. Should the parties not reach such an agreement, they will then continue with the ongoing legal proceedings.

How does mediation work?

1

First of all the mediator will convene the parties. Parties may be assisted by a lawyer but have to be personally present themselves. A first meeting is mainly and usually devoted to a discussion about the specific mediation procedure and the recording and the signing of a mediation memorandum.

2

During the subsequent session, the parties can advance their stories, explain their issues and expectations and exchange proposals that might lead to a solution. Sessions are attend by and assisted by the mediator who supervises the proceedings and ensures that the discussions take place in an orderly and well-structured fashion. He/she tries to identify the key issues and will attempt to draw the attention of both parties to them.

3

Should the parties reach a solution to their dispute, such a solution is recorded in an agreement which will also terminate the mediation.

Where do I find a mediator?

The Federal Mediation Commission (Federale Bemiddelingscommissie) approves the mediators. There are mediators in matrimonial law issues, in civil and commercial cases and in social and labour law issues.

For a list of approved mediators, one is referred to the following links :

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How much does a mediator cost?

In the mediation memorandum or in the mediation agreement, parties and the mediator will determine the fees of the latter and the expenses that he or she may charge, as well as the way that these fees and these charges will be assessed and paid.

Based on the Statute, each party will pay half of the fees attached to mediation and the expenses unless in the mediation memorandum, parties have agreed upon an alternative contribution scheme.