This page is now obsolete. The update is currently being prepared and will be available in the European e-Justice Portal.
Preliminary remark: this survey is of the legal position prior to the entry into force of the new legislation on mediation, which is expected be in force by 30 September 2005.
Apart from arbitration and ombudsmen, the main form of alternative dispute resolution (ADR) is mediation in civil and commercial matters.
Mediation is a mechanism that is designed to resolve disputes that have arisen or are to be expected, by getting the parties to discuss and negotiate their positions and come to an agreement. Mediation means that a third party, the mediator, helps the parties seek a compromise solution to their dispute.
Mediation requires the parties’ full cooperation and their willingness to engage in open and constructive discussion to solve their problem so that mandatory procedures can be avoided.
Mediation is possible in civil and commercial matters, including industrial and consumer disputes. Mediation is also available in relation to debts and criminal matters.
The parties are basically free to decide whether or not to go to mediation. But there are exceptions. For example: where a court orders an expert report, the expert must seek to secure a reconciliation between the parties; in divorce cases, the court informs the parties of the considerations which it believes might help to achieve a reconciliation.
At the time of writing (June 2005) there are no general rules in Belgian law on mediation. But the Belgian Official Gazette has published the Judicial Code (Amendment) (Mediation) Act of 21 February 2005. The entire Act is to be in force no later than 30 September 2005. Pending the adoption and entry into force of the Mediation Act, all we have is a number of specific piecemeal provisions. The Act of 19 February 2001 introduced mediation in family matters into the Judicial Code (Part Four, Book II, Title II, Chapter I bis). And there are a number of non-judicial tribunals for matters such as consumer contracts (e.g. second-hand vehicles) and the public corporations (Post Office, Railways).
On the basis of the general law of contract, valid clauses in a contract are binding on the parties, and failure to comply with them exposes the defaulting party to the risk of court action.
Pending the entry into force of the new Mediation Act, mediation is governed solely by mediation bodies’ own regulations, except in family matters.
Advocates and expert witnesses are often involved in mediation proceedings, but this is not compulsory.
This will depend on the mediation body (see below).
Is this type of ADR free of charge? If not, how are expenses distributed? Is it possible to be granted legal aid? (see the theme Legal aid - general information)
This will depend on the mediation body (see below).
It is always possible to go to arbitration or the courts if the mediation fails to yield the desired result. They have the exclusive power under the Constitution to settle disputes about rights in civil matters and issue enforceable orders (article 144 of the Constitution).
The result of successful mediation is an amicable settlement, which is in effect a new contract. If the settlement is not complied with by one of the parties, the party that is disadvantaged cannot have it enforced like an arbitration order or a court judgment but must first begin arbitration or court proceedings.
(source: VERBIST, H., DE VUYST, B, Arbitrage en alternative dispute resolution in België: een overzicht van de in België aanwezige arbitrage- en mediatie-instellingen en ombudsdiensten, Arbitrage et modes alternatifs de règlement des conflits en Belgique: une étude des institutions d'arbitrage et de médiation et des services d'ombudsman présents en Belgique, Brugge, Die Keure, 2002, 536 p.)
The list below does not claim to be complete. Some of the organisations are purely private. Some receive public support without losing their private-sector status. Others are official bodies (e.g. the ombudsmen).
CEPINA is a independent national body covering all industries and consisting of business managers, business lawyers, advocates and university teachers pursuing the following goals:
Type of disputes: Civil and commercial
Mediation procedure - CEPINA itself is not a mediator and does not accredit mediators. CEPINA endeavours to designate the most suitable person possible as mediator, having regard to the specific nature of the case. Mediators are paid at flat rates on CEPINA scales.
The Brussels Business Mediation Center pursues the following goals:
Type of disputes: Commercial matters
Mediation procedure – Preparation of a list of BBMC recognised mediators from which the parties can select a mediator for their dispute. Mediators’ services are remunerated at hourly rates.
Rules – Mediation rules
Function - Organisation of mediation
Type of disputes - Commercial matters
Mediation procedure – Preparation of a list of AKaBA recognised mediators from which the parties can select a mediator for their dispute. Mediators are entitled to fees and reimbursement of expenses.
Function - ECODIR helps consumers and businesses prevent or resolve their complaints and disputes online using a quick, efficient and affordable service.
ECODIR benefits consumers by providing them with an effective means of solving their complaints online. ECODIR uses a structured process of negotiation and (if required) mediation - all in a private and secure online environment. The system is easy to use, no matter where the parties are located.
ECODIR benefits businesses too, because consumer complaints and claims are presented to them in a packaged format - allowing them to manage customer relations more efficiently. And customers prefer to deal with businesses that have effective complaint and dispute management procedures.
Type of disputes - The dispute arose out of an online transaction. The dispute involves at least one consumer. The dispute does not concern illicit content, corporal damages, family, taxation and intellectual property issues.
Mediation procedure - ECODIR provides a secure private web-space in which the parties to a dispute can negotiate a mutually acceptable solution using ECODIR's negotiation process. The parties can call for the help of a qualified ECODIR mediator to assist them in solving their dispute if they both wish. The service is free to both consumers and businesses.
Function – The goal pursued by the Chamber of Arbitration and Mediation is to bring together lawyers specialising in one or more areas of the law who, by their training, experience and reputation, are bound to exercise their profession in a competent manner and with a human touch.
Type of disputes – Civil and commercial matters and construction
Mediation - The Chamber consists of mediators.
Rules of the mediation procedure
Function – Provision of mediation services
Type of disputes - Commercial matters
Mediation procedure - ABI recognises mediators but does not issue lists. Mediators’ remuneration is arranged through ABI.
Rules - “Rules of procedure”
Function – Settling disputes between individual clients (not companies) and their contractor and architect.
Type of disputes – Construction disputes
Mediation procedure – Preparation of a list of experts from which the parties may select an expert to settle their dispute. Experts’ fees are paid by the parties; the Commission makes no charge.
Rules – Procedurereglement van de verzoeningscommissie “Bouw” (pdf)
Function – Providing assistance in settling disputes between dealers and buyers, who use the standard contract proposed by “Federauto-Test-Aankoop / Federautoâ€‘Testâ€‘Achats ” for second-hand cars.
Type of disputes – Disputes relating to transactions in motor vehicles: second-hand cars, repairs, sales by professional dealers and private individuals .
Mediation procedure – Parties can select a mediator from a list. There is no provision for remuneration of mediators, unless they are official experts.
Rules – “Rules of mediation procedure concerning second-hand vehicles”
Function - Promoting, using and developing all forms of out-of-court dispute settlement in family matters, providing a variety of forms of mediation services and training in the use of these forms of alternative dispute resolution.
Type of disputes – Family disputes
Mediation procedure – Parties are free to choose a recognised mediation advocate. There is provision for remuneration.
Function – Promoting and organising family mediation and drafting rules of professional ethics in this field.
Type of disputes - Family disputes
Mediation procedure - Parties are free to choose a recognised mediation advocate. The mediator is remunerated by the parties.
Function - The Ombudsman for the banking industry is an impartial mediator who helps private individuals solve their problems with their bank, stock-broker, asset manager, investment adviser or credit establishment.
Type of disputes - Financial
Mediation procedure - The Ombudsman issues a non-binding opinion on the problem put to him. There is no charge.
Function - The Ombudsman’s function is to investigate disputes and provide mediation between a consumer (in whatever capacity) and an insurance company, an intermediary or Datassur .
Type of disputes - Consumer disputes in the insurance industry
Mediation procedure - The Ombudsman must be approached in writing. He produces a reasoned written opinion at the earliest opportunity and in all cases within six months. There is no charge.
Rules - Charter - Bevoegdheden
Where - Federal Government, Flemish & Walloon Regional Governments, French Community & certain cities and towns in Belgium
§ 1. The Royal Prosecutor may, without prejudice to the powers conferred on him by article 216bis, summon an offender and, if the nature of the offence is such that he believes that the offender should incur a principal penalty of more than two years’ imprisonment or a more severe penalty, call on him to repair the loss sustained as a result of his offence and supply proof that he has done so. In such case he shall also summon the victim to and arbitrate as to the amount of compensation to be paid and the manner thereof.…Top
Last update: 30-07-2007