Conflict mediation

Mediation is a confidential and structured process of voluntary discussion between parties, guided by an independent, neutral and impartial third party who does not impose a solution.

Article 1723/1 of the Belgian Judicial Code defines mediation as a confidential and structured process of voluntary discussion between conflicting parties, with the assistance of an independent, neutral and impartial third party who facilitates communication. The mediator therefore does not decide in the parties’ place. Article 1724 lets any dispute of a patrimonial nature go to mediation, including a cross-border dispute or one involving a public-law legal person.

A contract may include a mediation clause requiring the parties to try mediation first, before any other form of dispute resolution. Article 1725 then requires the court to suspend the case at a party’s request, provided that party raises this before any other defence. The same article still allows a request for an urgent or protective measure, even where a mediation clause applies.

A proposal for mediation sent by registered letter also suspends the limitation period of the claim for a month, where the proposal asserts a claim to a right. A party approaching a limitation deadline therefore gains time without having to go to court straight away.

Article 1728 of the Judicial Code makes the documents and communications of a mediation confidential and inadmissible as evidence in a later procedure, with the exception of the signed mediation agreement. What is said during mediation therefore cannot be used against a party if the mediation still fails.

Everest (anti)fraud acts as a party’s lawyer in a mediation file, or as the accredited mediator himself, depending on what the parties need.

Drawing on 25 years of experience in corporate criminal law and compliance, Mr Stijn De Meulenaer completed a training programme after which the Federal Mediation Commission accredited him as a mediator. That accreditation is not a formality: Article 1733 of the Judicial Code only allows a mediation agreement to be approved by the court, and so to become an enforceable title, where the mediator who led the mediation is accredited.

The parties set the rules and the duration of the mediation with the mediator in a mediation protocol, and normally bear the costs equally. Where the court orders a mediation itself, Article 1734 caps it at six months. Either party can end the mediation at any time without it working against her, which keeps the threshold to start low.

Where a fellow lawyer sends us a file in which mediation is an option, we first look together with you and your client at whether the matter suits it. The page for fellow lawyers sets out what we take over from such a file. Where the dispute also calls for guidance on a private investigation or touches on assistance before the criminal court, we move between those roles within the same file. Where the dispute already went through an in-house AML support engagement or a legal origin audit in which we were already involved, we already know the file.

A court can order mediation at any stage of a case, even in urgent proceedings, as long as the case has not been taken under advisement. Article 1734 of the Judicial Code forbids it, however, once every party objects. A court therefore never orders mediation against everyone’s will.

Yes, Article 1728 of the Judicial Code makes the documents and communications of a mediation confidential and inadmissible as evidence in a judicial, administrative or arbitral procedure. Only the mediation protocol, the signed agreement and the document recording a failure fall outside that confidentiality.

Yes, Article 1729 of the Judicial Code lets either party end the mediation at any time, without it working against her. No one can therefore keep you in a mediation that goes nowhere.

A proposal for mediation sent by registered letter also suspends the limitation period of the claim for a month, where the proposal asserts a claim to a right. A party approaching a limitation deadline therefore gains time without having to go to court straight away.