Latest developments in Belgian mediation

21 September 2004

George Roox, Jan Decorte

On 24 June 2004, a bill relating to mediation was approved by the Belgian Chamber of Representatives. The Belgian Senate may still make amendments to this bill and it is not yet a statute. However, one can expect this bill to become a statute (whether amended or not) due to the increased attention that the Belgian legal society is paying to mediation, which is not currently regulated in Belgium.

At present, it is unclear whether a mediation clause in a contract which binds the parties to proceed to mediation before legal proceedings are issued, is enforceable under Belgian law. The recent bill fills this gap. The bill provides that if the contract between the parties contains mediation clause then the court must, at the request of either party, suspend legal proceedings until the court is informed that a mediation has taken place. The bill does, however, specify that a mediation clause does not prevent parties from requiring urgent assistance from the court, for example, injunctive relief.

The bill also enables either party to a contract to propose mediation even if the contract does not contain a mediation clause. Such a proposal will have various effects including a suspension of any limitation period ("verjaring/prescription") until conclusion of any mediation. The bill also encourages the courts to suggest that the parties mediate, although the courts cannot order mediation without the consent of both parties.

The bill specifies that information disclosed to the other party and the mediator during the mediation is confidential and can thus not be used in subsequent litigation. Moreover, the mediator is bound by professional secrecy.

It is hoped that giving mediation a legal basis in this way this will lead to a decrease in the workload of the Belgian courts and therefore a quicker, more cost-effective handling by the courts of those cases which are not capable of being resolved through mediation.