mediation: process, advantages, Domains

The process

Mediation is an alternative method of conflict resolution, alongside conciliation or arbitration.

Mediation is a confidential and voluntary process for resolving disputes. The parties use an independent, impartial and neutral mediator.

The mediator guarantees a framework and facilitates the process leading the parties to find a lasting solution between them.

The mediation approach requires a common desire of the parties to create a sufficient space of trust.

We speak of judicial mediation when mediation has been requested by the judge. We speak of extra-judicial mediation when the parties decide between themselves to go to mediation rather than to court.

The benefits of mediation

• Speed and lower cost compared to legal litigation

• Win-win and sustainable solutions because they come from the parties themselves and can go beyond the purely legal dimension of resolving the dispute (provided that public policy provisions are respected)

• Confidentiality of what is said in mediation

• When the parties are truly involved in the process, the success rate is around 70%.

The certified mediator

The certified mediator is subject to the code of ethics provided for by law and is required to undergo ongoing training. Once certified, he or she may intervene in a judicial framework at the request of a judge.

It may also intervene outside the judicial framework, designated by mutual agreement of the parties. The mediator being certified, the agreement may be approved by the judge at the request of a party, giving it an enforceable character.

Co-mediation

Mediation is regularly done in the presence of 2 mediators. This is called co-mediation. This allows for more diversified listening and a dual perspective on the situation. Sometimes co-mediation is simply necessary (more than 2 parties, multilingual/multicultural mediation, mediation in a very specific field, remote mediation, etc.).

Concretely

One party contacts the mediator. When both parties agree to begin the mediation process, the mediator will then invite the parties to an initial meeting of approximately one hour to explain the framework and process of mediation. A protocol will then be signed setting out the framework and fees.

Typically, two to four three-hour sessions are required for mediation in social, civil or commercial matters. There are typically three phases: first, a phase of listening to each party in order to establish the list of subjects to be dealt with and the associated needs, then the creative phase of developing possible options and finally the phase of convergence towards an agreement.

For family mediation, the sessions are usually shorter (about 90 min) but the number of session is on average 3 to 6.

Since mediation is voluntary, either party may discontinue the process at any time.

Mediation in social, civil and commercial matters is very often carried out in the presence of the parties' lawyers who then act as advisors and participate in the process in a constructive spirit in the interest of the parties. The agreement that you will have reached together in the mediation will generally be drawn up by the lawyers.

The presence of the lawyers are less frequent in family mediation, but a review of the agreement with a lawyer is good practice.

Fields of application

Mediation can be applied in several areas:

- civil and commercial (matters relating to commercial disputes, relations between shareholders, directors, disputes between neighbors, etc.),

- social (matters relating to the world of work: end of contract, return to work after a long leave, conflicts within a team, conflicts between teams, interpersonal conflicts in the company, etc.).

- family (matters relating to family themes in the broad sense). More information on https://co-mediation-et-famille.be/

Links to the various brochures of the Federal Mediation Commission: https://fbc-cfm.be/documentation