The mediation process
How to start a mediation ?
It is never too early, and rarely too late, to consider mediation
The mediation process can start in various ways and at various times. Parties can choose mediation on their own initiative. In case of a conflict the choice may already have been made, right from the conclusion of the contract, in a dispute resolution clause that enshrines the preference for mediation
A judge may also direct the parties towards mediation if he or she believes that reconciliation between the parties is possible and at least one litigant does not oppose it. The considerations taken into account by a judge in this respect can be diverse: a strict application of the law may not really benefit any of the parties; the situation to be assessed is not black and white and may well be somewhere in the middle. A mediated solution may be reached much faster than a judicial decision; it could for example concern a long-term relationship (rental agreement, shareholder agreement, distribution agreement, cooperation agreement, ...) where each party has an interest in achieving a reconciliation.
Essentially, everything will then start with the designation of the mediator, whether chosen by the parties or appointed by the court.
Further course of the mediation process
Directions meeting
The mediator starts with a directions meeting with each party and/or their counsel. This will ensure the mediator is fully aware of whom the parties, their representatives and their counsel are and what the conflict is about. It also allows the mediator to evaluate his or her neutrality, objectivity and independence and the mediability of the conflict. The mediator explains his way of working and clarifies the mediation protocol which is a guide to process and will record the agreed rules for the conduct of the mediation including confidentiality and the mediator’s fees. The protocol will be presented to the parties for agreement and signature. Quite often the mediator asks each party for a very brief written summary of the dispute.
Mediation meetings
The subsequent mediation meeting(s) will in principle take place in the presence of the mediator, all the parties and their representatives and legal advisers. Those present who have not signed the mediation protocol and are not bound by professional secrecy, sign a confidentiality undertaking to ensure the details of the mediation stay confidential.
The actual conduct of the mediation meeting(s) can vary widely. However, a constant in the mediator's guidance is that the mediator will facilitate communication and information exchange between the parties and will shift the parties' focus from the past to the future. The mediator's interventions are aimed at assisting the parties to express their closed positions as interests which, after proper classification and clustering, form the basis for generating possible options from which the final solutions to the dispute can be distilled. These options are still working hypotheses that do not yet bind the parties. An overall agreement will be reached only when a solution is mutually agreed for each interest.
Caucus
One specific tool that the mediator may make use of during the mediation is the "caucus", a conversation that the mediator has with one of the parties separately and the content of which also remains undisclosed and confidential from the other party, unless the party concerned expressly agrees otherwise with the mediator. Either party may request such a caucus and the mediator will judge whether or not it is efficient to hold a caucus at that time. The mediator will use this tool at his or her own initiative if they consider that doing so will help move the mediation forward
Agreement and homologation
If the parties have come to an agreement on how to settle their dispute, they will, together with their counsel, record it in a written settlement agreement or in a mediation agreement which will be co-signed by the mediator and which, if the parties so wish, and if the mediator is an accredited mediator, can be submitted to the court for homologation so that it constitutes an enforceable instrument.
The Federal Mediation Commission's website sets forth the list of approved mediators: https://fbc-cfm.be/en
A mediation can also be conducted with a mediator who is not accredited. In that case, however, the mediation agreement cannot be subsequently homologated with a view to an enforcement of the mediation agreement.
Even when the mediator is appointed by the court, the parties may be able to offer their input about the choice of the mediator who is to be appointed.
CloseWhen classifying and clustering interests, the mediator may divide the interests into three categories: aligned interests, opposing interests and compatible interests. He or she will then divide them into clusters of interests that will be dealt with sequentially in an order that the mediator suggests to the parties.
CloseGenerating options is often done brainstorming about a cluster of interests. The mediator helps the parties to start generating possible solutions in a creative, unexamined way, the nature of which may vary widely. These are simply scenarios that have not yet been analysed for their feasibility or whether they are in fact acceptable. They do not in any way bind the parties, including the party that expressed them. The options expressed may be related to one’s own interest, to an interest of the other party or to a common interest.
Alternatively, the mediator could ask each of the parties to list its options, which can then be discussed at a subsequent plenary mediation meeting.
The mediator can also work in many other inventive ways to make this phase of the mediation process successful, for example by using the possibility of caucus, or even by suggesting that a third party is invited to a mediation meeting who will initiate the formulation of options from a totally different perspective, thereby sparking the parties’ own creative approach.
CloseThe mediator will try to facilitate an overall agreement, in which a settlement is found for each interest. However, in the context of mediation, the parties may only be able to agree on certain points and may wish to settle these definitively in a partial agreement. In that case, they will have to decide what will happen to the outstanding points of the dispute: submit to a binding third-party decision-maker, proceedings before the traditional courts, arbitration, further mediation, ...
Close‘Homologation’ (certification) involves a party making a unilateral application to the court to certify that the mediation agreement is enforceable. The court can only refuse homologation if the content of the mediation agreement would be contrary to public policy. After homologation, the mediation agreement will have the same legal consequences as a settlement order, which is not subject to appeal or judicial annulment by ‘cassation’ and is enforceable against the parties.
CloseThe mediator's independence includes that he or she has no economic link with any of the parties. The mediator is neutral towards the exact mechanism for resolution of the dispute which is left in the hands of the parties to freely decide. Impartiality signifies that the mediator has no emotional attachment to any party and has no bias for or against any of the parties.
CloseOne specific tool that the mediator may make use of during the mediation is the "caucus", a conversation that the mediator has with one of the parties separately and the content of which also remains undisclosed and confidential from the other party, unless the party concerned expressly agrees otherwise with the mediator. Either party may request such a caucus and the mediator will judge whether or not it is efficient to hold a caucus at that time. The mediator will use this tool at his or her own initiative if they consider that doing so will help move the mediation forward.
CloseIn binding third-party decision-making, the parties agree that a third party (who is not a judge or arbitrator) will decide in their place on a particular legal or factual aspect of their legal relationship and accept that this decision is binding on them. The decision made by the binding third-party decider has the same force for the parties as an agreement between them. In principle, the parties can only challenge the decision in case of manifest unreasonableness, conflict with public policy or any fraud committed during its preparation.
The matters left to the discretion of a binding third-party decider are very diverse in practice. For example, in the event of a dispute about a pre-purchase clause in the context of a shareholders' agreement, a binding third-party decider may be asked to determine how the clause should be interpreted; or exactly how much the rental damage at the end of a commercial lease amounts to; or whether or not certain actions of a distributor can be characterised as an urgent reason for terminating the distribution agreement.
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