Mediation is a method of conflict resolution in which a neutral third party, known as a mediator, facilitates communication and negotiation between 2 or more parties in order to help them reach a mutually acceptable agreement.
The mediator does not make decisions for the parties, but rather assists them in understanding each other's positions, exploring options for resolution, and finding a solution that meets the needs and interests of all parties involved. You can use mediation in a variety of contexts, such as family disputes, workplace conflicts, commercial disputes, and community conflicts.
The Belgian judicial code defines and regulates the mediation process.
‘It is a confidential and structured process of voluntary consultation between parties in conflict, which takes place with the assistance of an independent, impartial and neutral third party, the mediator, who will facilitate the communication and attempts to lead the parties to find, to work out a solution themselves.’
Key characteristics and advantages of mediation
- Voluntary: Parties can choose to start or stop mediation at any time.
- Structured: Unlike a judge, the mediator does not render any decision. The mediator is neutral and acts as a facilitator, helping parties communicate and reach a mutually beneficial solution. The mediator guides parties through the various phases of the process, culminating in final negotiations.
- Confidential: Everything discussed, and any document presented in the context of mediation, remains confidential, even if the mediation process fails.
- Fast: Mediation is faster than court proceedings, typically requiring only a few meetings over a few months compared to the years that court proceedings can take.
- Cost-effective: In general, mediation is more cost-effective than traditional litigation due to its shorter duration and equally shared mediator fees.
- Flexible: Mediation allows for the involvement of multiple stakeholders and can address broader issues to find creative solutions beyond the legal framework.
- Relationship-focused: Mediation promotes solutions that preserve business relationships and ensure continuity of operations.
On average, mediation boasts around a 75% success rate in commercial and civil matters in Belgium.
Where to start?
Parties can initiate mediation at any time in the life of a relationship by signing a specific agreement. They can also anticipate mediation via contractual mediation clauses, which are provisions included in contracts that commit parties to attempt mediation before resorting to judicial proceedings.
These clauses encourage communication and negotiation, helping to prevent conflictual litigation and fostering amicable settlements. Finally, a judge can submit the resolution of disputes to mediation by appointing a mediator, either at the request of the parties or, its own initiative unless all parties object (judicial mediation).
The mediator helps the parties negotiate and reach a voluntary agreement, aiming to resolve disputes amicably and efficiently outside the traditional court process. This approach reduces the time, cost, and adversarial nature of litigation, allowing for more satisfactory and mutually beneficial outcomes.