1. Legal Frame of Mediation
There is no specific Mediation Act in Belgium. The basic general statute of mediation has been introduced through the general Code of Civil Procedure on Feb.21, 2005 /articles 1724 to 1737 of the Code of Civil Procedure/. These provisions have not been amended after the adoption of Directive 2008/52/EC, as they are considered to be in line with the requirements of the Directive and to provide sufficient regulation of mediation.
A statute of April 5, 2011, concerning divorce proceedings obliges the judge to inform the parties on the possibility of mediation and allows the judge on his own initiative to stay the proceedings so that the parties to consider mediation (new article 1254, §4/1, 1255, §6 and 1280 of the Code of civil procedure). For the rest, the existing procedure governed in articles 1724 - 1737 of the Code of Civil Procedure remains into force.
The Belgian mediation legislation does not distinguish internal and transnational mediation proceedings; hence the same provisions apply to both – domestic and crossborder mediations.
Code of Civil Procedure– Part 7-Mediation /text in English/: http://www.cepani.be/en/Default.aspx?PId=950
2. Court Referral to Mediation
Referral by a judge to mediation can be done at any stage of proceedings (with the exception of the proceedings before the Court of Cassation or a special court that handles jurisdiction issues). The mediation agreement concluded after a referral can be ratified by the judge upon a request of each of the parties. Such a request can only be rejected on narrow grounds.
As mentioned above, in divorce proceedings the judge is obliged to inform the parties on the possibility of mediation and has the right, on his own initiative, to stay the proceedings in order to allow the parties to consider mediation.
If a contract includes a clause for mediation in cases of possible conflict , and one of the parties directly sues the other party, the judge can stay the proceedings only if the interested party raises this exception (art.1725)(The judge can not stay the proceedings on his own initiative in these cases.)
3. Confidentiality of Mediation Proceedings
The confidentiality requirements concern not only the mediator but also the parties and the experts appointed during the mediation.
4. Enforceability of Mediation Agreements
The agreement made under supervision of an accredited mediator can be ratified by the court on request even of one of the parties and has the force of a judgement (court decision) when it is ratified. The judge can only reject the demand of ratification on grounds of public policy or in family matters when the agreement is contrary to the interests of the children
5. The Impact of Mediation on Statutes of Limitation
Entering into a conventional mediation entails legal effects: it has the effects of a formal notice (important for the interest due) and suspends the statute of limitations for one month (1730). Signing the mediation protocol suspends the prescription as long as the mediation proceedings last.
6. Requirements for Parties and Lawyers to Consider Mediation as a Dispute Resolution Option
Belgian law adheres to the concept that mediation is a fundamentally voluntary process. However, it is not excluded that a party –even a winning one- would have to pay part of the costs of the court proceedings if he or she has unreasonably refused to at least try a mediation (this might be considered as an abuse of rights).
7. Accreditation Requirements for Mediators
An accreditation system is provided, with the accreditation given to mediators and to training centers by a Federal commission on mediation. There is no provision concerning the recognition of mediators trained abroad or recognized elsewhere in the EU.
It is generally admitted that professional judges cannot be mediators.
Register of accredited mediators: http://www.juridat.be/mediation/
Web-site of the Ministry of Justice: http://justice.belgium.be/fr/themes_et_dossiers/mediation/
8. Duties of Legal Representatives and other Professional Mediation Participants
The parties may use legal assistance in mediation proceedings, as well as to appoint an expert /with the consent of the mediator/. The obligation to keep all the information obtained in the course of mediation proceedings as confidential applies to all participants /including legal representatives and experts/.
Mediation is appropriate when the parties need a decision and are willing to
Voluntary recourse, ability to take decisions (autonomy)
-Participation of a party in mediation is not forced (by threats or in any other way) by the other party or any third party;
General rule: Where parties are not ready to search for a solution, where they do not see the necessity to search for a solution or where at least one of the parties insist to resolve their conflict by asserting the position solely. The cases listed below could be seen as unsuitable only upon certain conditions and it has to be taken into account that in many of these cases the alleged obstacle may be surmounted in the course of mediation.
Information for mediators or mediation providers is available online, and often can be found in the chambers of commerce, embassies, or associations of mediators in the respective country. Usually this type of information is available on the Internet.
Useful criteria for choosing a mediator would be: