Expat Q&A: Mediation as an alternative for disputes

Perhaps you have already encountered one of the following situations: your landlord refuses to come and inspect damp issues in your rental property using the pretext that it is the result of poor maintenance on your part; you’re in the midst of a relationship breakdown and you believe that an amicable separation is the only way out; you have signed a contract to purchase a sofa that has been delivered in a colour that is different to what you had seen in the store.

When an individual is in dispute with a third party, either another individual or a company, often an attempt to settle matters amicably is sought and when the other party fails to respond, recourse is then made to a lawyer. However, there is an alternative to legal recourse and that is known as mediation. The Expat Welcome Desk is here to explain it all.

What is mediation?

The Belgian Judicial Code defines mediation as a confidential, structured, and voluntary consultation process between parties in dispute, which takes place with the support of an independent, neutral, and impartial third party who facilitates communication and attempts to guide the parties to find a solution to the issue themselves.

It’s an alternative to going to court, which you can always have recourse to if the mediation does not reach a successful conclusion.

The solution that successfully concludes the mediation process is not a decision imposed by the judge but rather, as stipulated by law, an agreement worked out by the parties themselves.

As this is a consensual procedure, above all it requires the shared desire of the parties to proceed with mediation. Nevertheless, it is also a completely free process: if after one or two meetings, one of the parties believes that the mediation will not succeed, or in any case not to where the party is willing to go, then that party is free to break off the negotiations at any time. Therefore, there are not many risks in attempting mediation, especially as it can be initiated very quickly and is limited to the amount of time that the parties can set themselves. Generally, two or three meetings of two or three hours suffice to reach an agreement.

By being in the presence of a third party, the mediator, the dispute is not a face-to-face confrontation between the parties and becomes a triangulation in which the parties explain the causes of the problem to the neutral, independent, and impartial third party. The mediator facilitates communication by following a framework, either strict or flexible, depending on their personality and those of the parties around the table, and stages (aims?) to bring the parties out of this confrontation of positions (“I demand this”, “I refuse that”).

Unlike a judge, who is bound by the terms of the contract or the law, the mediator may spark creativity between the parties to help them reach a successful solution that goes beyond the scope of the contract and to a certain extent the law (while still respecting public order and family law, the interest of children).

Process

The mediation process goes through the following phases which generally extend over two or three meetings lasting two to four hours depending on the complexity of the dispute (a simple dispute can be resolved in a single meeting):

After a listening phase where the “stories” of the parties are heard (narrative phase), the mediator listens to the statements and ensures they have fully understood all the ins and outs of the conflict. The mediator then invites the parties to make a list of areas to be addressed (like applications brought before a judge) and determines what seems important to them (lists of interests). These elements shall be considered in the resolution that the parties are seeking.

The parties then come up with the potential solutions, which aim to respond to the different areas listed and what is important to each of the parties. The parties then need to consider one or two offers which encompass the areas, and which are based on the quantified items in an objective way. In this way, the negotiation phase begins based on the offers, where the parties need to keep the interests of the other party in mind, as the solution must be acceptable to all participants in the mediation in order to be accepted. This solution will therefore, in all likelihood, be multifaceted, and more extensive than the legal solution that the judge would be able to find, as, let’s not forget, the parties can go outside the legal framework (such as the contract, general terms and conditions of sale, the law).

What advantages does mediation bring?

The flexibility of the process allows parties to meet very quickly around a table after having appointed the mediator (or after having a mediator appointed by a judge in the case of disagreement). Meetings take place at the times agreed by the participants and the mediator and usually in the mediator’s offices, or on “neutral ground.”

The language of the procedure is not restricted, whereas legal proceedings in Brussels must be conducted in French or Dutch. The parties can appoint a mediator with knowledge of the language or languages of the parties.

The process is essentially verbal and relies on few documents, as the mediator prefers to base proceedings on the narratives of the parties and possibly the lawyers and not on conclusions or written notes. Mediation can therefore be initiated without calling upon a lawyer provided that the balance between the parties is respected (a situation where one party does not have a lawyer while the other party is assisted by counsel is generally not advised by the mediator).

It is also important to know that the process is confidential, which means that whatever is said or negotiated in mediation cannot be used or repeated before the judge. This ensures that the parties can play all their cards on the table without being penalised if no solution is found. Each party can meet the mediator one-to-one, for example to explain the reasons behind their position, disclose information that they do not wish the other party to know…

When an agreement is reached, it is documented by the lawyers or the mediator. Generally, it is executed voluntarily as it has received the approval of both parties involved. However, it may be recognised by the court to make it an enforceable order. As this is an agreement, no appeal on this decision is possible, which limits the time of proceedings.

The success rate for mediation is in the region of 75-80%, sometimes higher, but only those who have accepted mediation can hope to benefit from such a satisfactory agreement!

Where do you find an experienced mediator?

In order to use the title “certified mediator”, it is necessary to follow a training programme, the content of which is established by law and it is also necessary to be recognised by the Federal Mediation Commission of the Belgian Ministry of Justice which holds the list of certified mediators. This stands as a guarantee of the mediator’s professionalism. As this is a service where human relationships are extremely important, it is often reassuring to be able to select someone who has been recommended to you or to be able to look at their website and their professional background. The mediator will generally specialise in civil, commercial or social matters, or family matters. Consequently, you will be able to select the right person according to the nature of your dispute and your affinities.

The mediator is selected by mutual agreement between both parties or by a judge if proceedings between the parties are already under way. Some mediation centres: notably Bmediation https://www.bmediation.eu/, Trialogues https://www.trialogues.be/, CEPANI https://www.cepani.be/ also assist parties and appoint a mediator from their default panel for parties unable to agree on a name.

This article was written in collaboration with Ms Françoise LEWALLE, certified mediator in civil, commercial and social matters.

The Expat Welcome Desk is hosting a mediation workshop on 26 March. If you’re interested in attending, please write to inscription@commissioner.brussels

The Expat Welcome Desk is a free service that advises internationals on the practicalities of daily life in the Belgian capital, from accommodation and residence permits to employment rights and taxation, among a number of topics.