Question 1

What is mediation?

Accepted Answer

Mediation belongs to the family of Alternative (i.e. non-judicial) Dispute Resolution Modes, in short: ADRs. Among the ADRs are mainly 
- direct negotiation between the parties (or through the intervention of their lawyers) without the intervention of an independent, neutral and impartial third party;
- conciliation, which involves the intervention of a third party - the conciliator or ombudsman - who attempts to bring the parties closer together by proposing scenarios for resolving the disagreement himself or herself. He therefore has a relatively directive role in the debate by advocating this or that solution with the hope that the parties will adopt it.

What fundamentally distinguishes mediation from other ADR and justice :
-	The strictly voluntary and non-binding nature of the process: even when "ordered" by a judge, each party and the mediator himself or herself remain entirely free to remain at the table or leave it at any time;
-	The fundamental facilitating role of the mediator: in addition to his or her independence and impartiality, the mediator's neutrality discourages him or her from making proposals for a solution himself or herself: the mediator's main concern is to reconnect the parties to the dialogue, helping them to negotiate in a reasoned manner based on the interests of all parties, without remaining stuck on positions of principle or law. In this respect, mediation brings real added value compared to direct negotiation without the help of a third party. Often, its intervention, based on trust, helps to revive constructive collaboration between former enemies: thanks to it, the "cake" to be shared has a real chance to grow.   
-	Strict confidentiality: as long as the parties are in negotiations under the aegis of a certified mediator - who is bound by professional secrecy - they know that if the mediation fails (but of course also if it is successful) nothing that has been said or written can be used later on and certainly not in court: this therefore guarantees that none of the parties to a mediation will be weakened if it is subsequently the judge who has to decide the dispute;
-	Mediation is quick and inexpensive: experience shows that most conflicts (+/- 80%) can be resolved in one to a few sessions of a few hours over a few months maximum. Even if the parties are accompanied by their lawyers, whom they pay and who also share the mediator's fees, the total cost is significantly lower than that of legal proceedings. In most cases, the latter breaks the relationship between the protagonists forever, even if it was not necessary

Question 2

What is a "accredited mediator" and what is his or her role?

Accepted Answer

The accredited mediator is a professional whose rights and obligations are defined by law, whose title is protected under penalty of criminal sanction for anyone who avails himself of it without authorization, who is included on the official list of the Federal Mediation Commission for having been accepted by it after having been trained under its supervision and who is subject to a code of ethics

This strict framework is important for two reasons:
-	It guarantees to the "mediated" (the persons or companies calling upon a mediator) total confidentiality and respect for a rigorous operation from the signing of the mediation protocol (which sets the rules of the "game") to the mediation agreement that enshrines the agreement reached;
-	the mediation agreement can be homologated by the judge if one of the parties requests it in order to give it the same enforceability as any judgment. In practice this happens only quite rarely and only if one of the parties evades the obligations to which he or she has agreed in the mediation agreement. In other words, if a party to the mediation is in bad faith, the judge will order the execution of the agreement without any other verification than the respect of public order (for example: the judge will not homologate a mediation agreement which implies that an offence has been committed)
 
But more importantly, the certified mediator is a man or woman trained to help the parties break the impasse in their relationship, to help them re-engage in dialogue and negotiate in a reasoned - and therefore as dispassionate as possible - manner a solution that is desirable to all parties.

The law requires the accredited mediator to be
-	independent : nothing, not even the fact that he is otherwise engaged in another profession (lawyer, expert, etc.), can distract him from his ability to act as a neutral and impartial facilitator in the mediation
-	impartial : the mediator has no acquaintance or appearance of acquaintance with one of the parties. He or she is equidistant from them
-	neutral : in carrying out his or her mission, the mediator shall never support - or give the appearance of supporting - the position of one of the parties.

This threefold requirement of righteousness is important, so that the mediator always invites the parties to react immediately to any signal they perceive might endanger it

Question 3

What types of conflict particularly benefit from mediation?

Accepted Answer

One would be tempted to answer: almost all of them. The law has indeed considerably extended the scope of mediation, including for example to legal persons governed by public law. A simple way of answering is to remember that everything that is permitted to be concluded by agreements or transactions can in principle also be the subject of mediation.

Most often, three types of mediations are distinguished according to the issues at stake
-	family mediation: as its name suggests, many disputes arising from family difficulties and breakdowns are settled through mediation. Often at the express request of the judge;
-	social mediation, in which an agreement is sought in disputes arising in the context of labour relations;
-	civil and commercial mediation, which deals with all conflicts between individuals and/or companies, whether it concerns neighbourhood law, company law, lease contracts, debt collection, intellectual property, relations between shareholders, etc. This is the broadest field of mediation which, let us not forget, also concerns cross-border relations.

Question 4

How much does a mediation cost?

Accepted Answer

Everything will depend essentially on the duration of the mediation. As we have already seen that the process is quick and short (compared to the judicial route), it is reasonable to conclude that this solution is by far preferable to the judicial route on the basis of the economic criterion alone

As a general rule, the parties bear the fees of their respective lawyers in the case - which is not obligatory - where the latter accompany them in mediation. In addition, and unless they agree otherwise, they shall share the mediator's fees in half. These fees must be explicitly and imperatively detailed and the manner in which they will be shared in the mediation protocol that the parties (otherwise known as the "mediated") and the mediator sign prior to the commencement of the mediation

Mediators usually advertise their fees on their website. They are generally between 50 and 250 euros per hour (to be shared between the parties, unless otherwise agreed).

It is also important to mention that "legal defence" type insurance often requires prior recourse to mediation before agreeing to bear the costs of legal proceedings. If you have a policy otherwise known as "legal protection", check with your insurance company or broker

Similarly, the costs of mediation may be covered by "2nd line legal aid", i.e. they may be paid by the State, through the various bar associations, when the means of existence of the litigant make him or her eligible for this aid

Consult your local legal aid office: [https://avocats.be/fr/bureaux-daide-juridique-baj](https://avocats.be/fr/bureaux-daide-juridique-baj)

Question 5

How long does a mediation last?

Accepted Answer

There are no really reliable statistics because of the confidential nature of mediation
But all the mediators and lawyers involved agree that the vast majority of mediations take place in one or even a few sessions so close together that, except in complex cases, it is usually a matter of weeks or even months. Never years as, alas, more and more often in court.

Question 6

Is mediation confidential?

Accepted Answer

It is the law itself that guarantees the confidentiality of the entire mediation process.

Broadly speaking, unless the parties also called "mediated" agree otherwise, everything that happens between the start of the mediation as enshrined in the signing of the "mediation protocol" and the end recorded in the mediation agreement (or the minutes recording the failure of the mediation) is confidential. This applies both to what is said during the session and to any written documents or expert interventions

Therefore, unless the parties decide otherwise, the protocol and the mediation agreement are not confidential, which is understandable:
-	the protocol is essentially limited to setting the rules that will be respected during the process but without revealing the respective positions of the parties. The official existence of this protocol is particularly important because it makes it possible to prove in court, when the law or the judge requires it, that an attempt at an amicable resolution has been made but without revealing anything about the reasons for the failure or about the party responsible for the breakdown of the negotiations
-	the mediation agreement, without revealing anything about the respective positions and rights of the parties, formally enshrines the decision they have reached by mutual agreement following their discussions assisted by the mediator. The agreement has become the law of the parties. It is therefore binding on them and it must be possible to continue its enforcement if one of the parties does not respect it. For this reason, an agreement concluded under the aegis of an approved mediator may be homologated by the court.

The confidentiality of the mediation is imposed on the parties by the signature of the mediation protocol and on any third parties (company lawyers, experts, etc.) invited to the mediation by a confidentiality undertaking that the mediator will see to it that they sign

As far as lawyers accompanying their clients in mediation are concerned, their signature is not necessary because - just like the mediator - the Judicial Code and the Criminal Code regulate their obligations and rights related to professional secrecy.

Question 7

If the mediation agreement is not respected, what happens?

Accepted Answer

It is often said that a mediated agreement has become the law of the parties. But the law can be respected. This is the case with State judgments: we say that judgments confer an enforceable title, i.e. they allow the enforcement of a court decision to continue - for example by seizure - if one of the parties does not respect it. The law has provided that a mediation agreement may also constitute an enforceable title through a procedure of simple homologation of the mediation agreement by the court: the judge (except in family matters where he will check that the interests of the children are respected) simply verifies that the mediation agreement submitted for homologation does not contravene public policy. Only agreements under the aegis of accredited mediators can be homologated and therefore benefit from enforcement.  Public order is defined as the set of mandatory rules affecting the organisation of the Nation, the economy, morals, health, security, public peace, and the essential rights and freedoms of each individual. It would thus be contrary to public order for a mediation agreement to require that an offence be committed or to infringe the fundamental rights of a party. Accredited mediators and lawyers are expected to be familiar with the limits of public policy.

Question 8

Can mediation be initiated during a trial?

Accepted Answer

Yes, as a general rule, as long as a case is not under consideration (i.e., as long as there is a succession of hearings and the parties are exchanging submissions through legal representation), the judge may order mediation or the parties may so order and notify the judge. The Judicial Code sets out the conditions to be met in certain cases, but the main point to remember is that the law intends to promote negotiated resolutions, including mediation, as far as possible and therefore even during the course of the trial.

It should also be noted that a request for mediation made by a party BEFORE legal proceedings are initiated and in compliance with certain formal requirements temporarily suspends the possibility of going before a judge. Here too, as we can see, the law gives mediation a chance before going to court

Question 9

What's judicial mediation?

Accepted Answer

The law distinguishes between two types of mediation
1. Out-of-court mediation is set up by individuals and/or companies who have disagreements between them. This disagreement - also known as a conflict or dispute - is submitted, by the very will of the parties, to a confidential process for resolving the disagreement, with the help of the accredited mediator they jointly designate. No judge intervenes in this type of mediation to organize it. The conflicool has been specially designed to facilitate and develop extra-judicial mediation, without the need to consult a lawyer beforehand.
2. Judicial mediation is decided by a judge, most often at the request of a party during legal proceedings. Once the decision is made to go to mediation, it takes place in exactly the same way as out-of-court mediation. It is therefore fundamentally the fact that a judge intervenes or not in the decision to go to mediation that determines the difference in category. The conflicool can therefore also help to set up an extra-judicial mediation if the judge wishes to do so.

Although it is not essential to have a lawyer to submit any dispute to mediation, experience shows that in complex cases or cases requiring the involvement of lawyers in the drafting of the mediation agreement, it is advisable to be assisted, at least partially, by a lawyer. The mediator will not hesitate to encourage the parties to be assisted if he or she considers it to be in their interest to do so.

Question 10

Is mediation compulsary?

Accepted Answer

The honest answer is no. For, even if the judge may under certain conditions order mediation, or if he or she can ensure - if necessary by compelling the parties to appear in person and not by proxy lawyers - that efforts have been made to try to resolve a dispute amicably before referring it to the court, the strictly voluntary nature of the process enshrines the freedom of the parties and of the mediator himself or herself to interrupt the mediation at any time, without any consequences other than the loss of a little time
There are countries where amicable conflict resolution, including mediation, is a condition for the admissibility of a legal action: the claimant can only refer the matter to the judge if he proves that a serious attempt at amicable resolution has failed. The Belgian legislator did not want to go that far but nevertheless equipped judges with "sticks and carrots" to achieve a similar result in the name of the principle "to try it (mediation) is to adopt it"

It should also be noted that the new law requires lawyers to inform all clients of the existence of amicable dispute resolution methods: if they fail to do so, the lawyer contravenes not only the code of ethics of his or her Bar, but also the law

The pragmatic answer to the question is that mediation will gradually impose itself not as a strict obligation but as an unavoidable step in the resolution of disputes

Question 11

If I accept mediation, do I lose my right to a fair trial in court?

Accepted Answer

Absolutely not. As we have seen elsewhere, mediation is a completely voluntary and confidential process, so no party can be penalized in any way whatsoever if a mediation has been initiated and has not been successful. Some will see it as a guarantee of fundamental rights, including the right to a trial by an independent and impartial judiciary. Others will see it as an imbalance to the detriment of the person who tried - without success - to negotiate an amicable settlement. To each his own point of view

However, if the mediation is concluded and an agreement to mediate is reached, this agreement becomes the law of the parties, so that if one of them does not respect it, the other can continue its enforcement (after homologation by the court). It would therefore not be possible to disregard the mediated agreement that has been subscribed to and then ask the judge to take a different decision from the one contained in the agreement.

Question 12

Can the judge punish me for refusing or failing a mediation?

Accepted Answer

No. And in any case he will not know because, even if he has ordered mediation, the only information he will have is that the parties have not been able to reach an agreement. And even supposing he even guesses who obstructed an agreement, his independence and impartiality require him to judge in law, not in sympathy. Justice may be slow, but it is impartial and of high quality. Moreover, with rare exceptions, appeals to the second level of jurisdiction are always possible.

That being said, lawyers most often advise their clients not to do anything that might displease the judge. For, however professional and impartial they may be, judges are also human beings with their values and emotions. However, since the recent law of 2018, there has been a very strong propensity for judges to send parties to mediation: many of them believe that for certain types of conflicts mediation is more effective than the judicial route.

Question 13

What is the role of the lawyer in a mediation? Is a lawyer necessary?

Accepted Answer

There is no obligation to be assisted by a lawyer in mediation

In some cases, it is even felt that the mediator does not wish to do so, so convinced is he or she that the more directly he or she can contact the parties themselves to have them speak freely and confidentially about their interests, the better the process goes. It is also frequent that the parties' lawyers do not take part in the mediation itself but intervene in a second stage to advise their clients before reaching an agreement or to draft the agreement with the other party's lawyer

When lawyers are involved in mediation, the mediator usually defines the scope of their involvement beforehand, again to maximize the likelihood that it is the parties themselves who are involved in resolving their conflict

The lawyer - also called "mediation counsel" - is particularly effective when he or she has himself or herself understood the strengths of this amicable mode of conflict resolution, when he or she understands that we are no longer there to fight like gladiators, but to help the parties find a solution on their own. Moreover, the best mediation counsels are often lawyers who have completed the necessary training to become certified mediators, since many mediators are also lawyers

Finally, every lawyer - even the one who is least convinced by mediation - has a legal obligation to clearly inform his or her client about alternative dispute resolution methods before taking legal action on his or her client's behalf or defending him or her in court.

Although it is not essential to have a lawyer to submit any dispute to mediation, the mediator will not hesitate to encourage the parties to be assisted if he or she believes it is in their best interest.

Question 14

And conflicool in all of this?

Accepted Answer

conflicool helps you to find an accredited mediator who is perfectly suited to the nature of the conflict between you and another party while taking into account the location of both parties.  The appointment of the accredited mediator is the first step in the resolution of the conflict and experience shows that it is crucial that this step be managed flawlessly to maximize the chances of success of a mediation.

Question 15

If I initiate a mediation, does that penalize me for making the first move?

Accepted Answer

No, absolutely not.

First of all, since the process is confidential, no one - not even a judge - will be informed. And it would not weigh in the balance, since the only question that would be of interest to him or her, if any, is whether or not the parties have - yes or no - attempted a friendly settlement, without any consideration for the party that took the initiative.

Some lawyers consider that by showing a willingness to negotiate, a party may become psychologically weakened. This view is likely to disappear as soon as the law, since 2018, clearly obliges lawyers to actively promote the amicable settlement of disputes.

On the other hand, simply offering mediation instead of attacking one's counterpart in court (or defending oneself because the other party is suing), does not reveal anything about the negotiating positions. It is simply a matter of proposing to the opponent one way rather than another, and it happens that in the majority of cases, this other party also has an interest in trying, at least initially, to resolve the conflict amicably.

Question 16

Is mediation new?

Accepted Answer

Yes and no.

No: Since the dawn of time, how many wise men have been called to the rescue to try to prevent a conflict from degenerating between individuals, companies, countries? Or even to pacify the parties?

Yes: mediation as regulated by the law is quite recent. It started, as far as Belgium is concerned, in 2001 with family mediation. Mediation in civil and commercial matters arrived in 2005. And a new law of June 2018, which came into force on 1 January 2019, has considerably reinforced the weight of alternative dispute resolution methods, mainly mediation.
It should be noted that in other parts of the world and in particular in the USA and Great Britain, mediation has been very much in vogue since the 1970s and 1980s. This is as much due to the differences between the judicial systems of continental Europe and the Anglo-Saxon world as to cultural differences.

Question 17

Is mediation Belgian?

Accepted Answer

Unfortunately not. One would almost be tempted to say "on the contrary". Belgium ranks second in the European Union in terms of the number of judicial bodies per inhabitant. However, a 2008 directive requires member states to legislate to promote alternative dispute resolution methods. The avowed objective is to achieve that one day there will be as many amicable agreements as there are court decisions. We are still a long way from this and the aim of the new legislation is to make a significant contribution to this balance.

The conflicool obviously supports this objective of growth in the mediation market

Question 18

How does mediation fit into the Justice system?

Accepted Answer

Usually good. But with nuances.

Mediation has been regulated by the Belgian Judicial Code for almost 20 years but a new law of 18 June 2018, which came into force on 1 January 2019, upsets the habits of the actors of justice (lawyers, judges, bailiffs) in that it so strongly promotes mediation that some specialists have concluded that the law relegates the traditional legal procedure to an emergency exit when the amicable modes of conflict resolution fail: from an alternative mode (to justice) mediation is bound to become a preferred mode of dispute resolution. This is the new course of history.
Also, the Judicial Code requires lawyers and judges in certain circumstances to push the dispute out of the courtroom with the guarantee that they can always return to the judge if only one of the parties wishes to do so, in the name of the fundamental right of every citizen to have an independent and impartial court decide the dispute, as stipulated in Article 6 of the European Convention on Human Rights

Finally, it should be noted that this same law of 2018 reminds us that it is part of the mission of judges to try to reconcile the parties, as is often observed in Justice of the Peace.

The interest - or even enthusiasm - of many (sometimes high-ranking) magistrates for alternative methods of conflict resolution could not be understood as a flight on their part, although objectively speaking, the generalisation of mediation would contribute greatly to relieving congestion in a justice system that is said to be completely saturated. Their vision is that as long as the fundamental right of every citizen to have a dispute decided by an independent and impartial tribunal is not called into question, it is in society's interest that alternative solutions coexist alongside State justice, which in many cases prove to be even more appropriate for resolving conflicts.

Question 19

Is mediation the beginning of the privatization of Justice?

Accepted Answer

Let us remember that every citizen has the right to have his or her dispute decided by an independent and impartial tribunal. And that tribunal is, in essence, public or state-run. The point deserves to be put into perspective: most of the costs inherent in justice are of a private nature, such as lawyers' fees, and the public nature of a service does not mean that it is free of charge (costs of bailiffs, notaries, procedural acts, etc.)

Alternative (i.e. non-judicial) Dispute Resolution (ADR) is a private initiative even though it is governed by the Judicial Code, and therefore the State. Thus, the resolution of a dispute through mediation or arbitration (i.e. a decision taken by private "judges" paid by the parties to decide a dispute as a state judge would do) can be understood as a form of privatization of Justice, which fuels the political debate on the desired level of state interventionism in the administration of society at large. So much for the political aspect.

From an economic or financial point of view, the situation can be analysed in a different way: taking a diversionary route, such as mediation, from the almost blocked route that has become the judicial route makes it possible to avoid years of proceedings and lawyers' fees to obtain a decision to which, by definition, the litigant agrees because of the voluntary nature of mediation. This may seem surprising, but the decision - albeit of a private nature because it is wanted by the parties - is better accepted, faster and less costly than most decisions made by our judges, whose professionalism, impartiality and independence are recognized by everyone. The fact that they themselves are often strong advocates of ADR only adds to the effectiveness of the method. In summary, then, mediation is a "private" detour that is highly desired by the "public" and economically desirable

Questions and answers about mediation

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