Company mediation

Mediation suits it better as long as the parties can still work with each other, and less well once one of them wants to force an exclusion or a withdrawal subject to a statutory threshold.

Article 1723/1 of the Belgian Judicial Code defines mediation as a confidential and structured process of voluntary discussion between conflicting parties, guided by an independent, neutral and impartial third party. Article 1724 lets any dispute of a patrimonial nature go to mediation, and a dispute over the value or transfer of shares is one example.

The dispute resolution regime of the Code of Companies and Associations requires, for an exclusion claim, a group of shareholders holding together 30% of the votes or of the profit rights. Where your group does not reach that threshold, or where you want to keep the conflict out of court in the first place, mediation stays open without that threshold.

The parties set the rules and the duration of the mediation in a mediation protocol, together with the mediator, and normally bear the costs equally. Where the court orders mediation itself after proceedings have already started, Article 1734 of the Judicial Code caps it at six months.

Article 1728 makes the documents and communications of the mediation confidential and inadmissible as evidence in a later procedure, with the exception of the signed mediation agreement. For shareholders who keep working together after the conflict, that confidentiality often matters more than in an ordinary commercial dispute.

Everest (anti)fraud first checks whether your conflict suits mediation, then acts as counsel in the mediation or, where the parties wish it, as the mediator himself.

Where a conflict already exists within your company between shareholders, directors or managers, we first look at whether discussion with the other parties involved can lead to a solution. Where the situation calls for it, we discuss with you the possibility of opening a mediation file, with an accredited mediator or with a lawyer acting as mediator himself.

Our general page on mediation sets out the role of Mr Stijn De Meulenaer, accredited as a mediator by the Federal Mediation Commission. Where mediation does not lead to an agreement, the route of a procedure stays open, and we take over the same file without interruption.

Where mediation does lead to an agreement, the court can approve it once the mediator who led the mediation is accredited. Article 1733 of the Judicial Code gives that approval decision the same effect as a judgment, so the agreement between the shareholders becomes immediately enforceable without a separate procedure.

A mediation clause you put in your shareholders’ agreement in advance, we are happy to discuss it as part of preventive advice. Our approach to shareholder disputes in general sits among our practice areas, with a few closed files among our references.

Yes, a court can order mediation at any stage of a case, as long as it has not been taken under advisement, on the parties’ joint request or on its own initiative with their consent. Article 1734 of the Judicial Code forbids it only where every party objects.

Yes, Article 1728 of the Judicial Code makes the documents and communications of a mediation confidential and inadmissible as evidence, except for the signed mediation agreement. What comes up during the discussion cannot therefore be used against you later.

Article 1734, paragraph 2, of the Judicial Code caps the mandate of a court-appointed mediator at six months. The parties can then ask for a new term at the hearing or simply continue the proceedings.

Where mediation does lead to an agreement, the court can approve it once the mediator who led the mediation is accredited. Article 1733 of the Judicial Code gives that approval decision the same effect as a judgment, so the agreement between the shareholders becomes immediately enforceable without a separate procedure.