THE BELGIAN LAW ON MEDIATION: An Early Overview

Article excerpt

On Sept. 30, 2005, the Belgian Law on Mediation dated Feb. 21, 2005' came into force. This law adds part seven to the Belgian Judicial Code, headed "Mediation." Part six of the Belgian Judicial Code deals with arbitration.

The Belgian Law on Mediation distinguishes between two types of mediation: voluntary mediation and courtinstigated mediation. Voluntary mediation relates to mediation that is not linked to existing legal proceedings, whereas court-instigated mediation takes place within the framework of existing legal proceedings.

These two categories of mediation have the following characteristics: (1) the intervention of an accredited mediator, (2) the possibility of conferring the status of a court order on the agreement entered into as a result of the mediation, and (3) the limited suspension of the running of the limitation period.

The fact that two categories of mediation are regulated by the Belgian Law on Mediation does not preclude the existence of a third category, which may be described as "free mediation" in the sense that the freedom of contract (Article 1134 of the Belgian Civil Code) allows the parties to organize a mediation as they deem appropriate and within the limits of the ordre public. The mediator in a free mediation does not have to be accredited. The contract providing for free mediation is an enforceable contract under the Belgian Civil Code. However, it does not have the status of a court order.

I. Institutional Framework for Accrediting Mediators

The Belgian Parliament has created an institutional framework for the accreditation of mediators. There is a Federal Mediation Commission made up of a General Commission and three specific subcommissions. The General Commission has two notaries, two members of the Bar, and two representatives of mediators who are neither notaries nor members of the Bar. The General Commission has an equal number of Flemish speaking and French speaking members, as do the subcommissions.

The tasks of the General Commission include:2

1. accrediting institutes for mediation training and the courses they organize;

2. establishing criteria for the accreditation of mediators per category of mediation;

3. accrediting mediators as well as the temporary or definitive withdrawal of the accreditation of the mediators who no longer meet the legal criteria;

4. establishing the procedure for the accreditation and for the temporary or definitive withdrawal of the tide of mediator;

5. establishing and distributing the list of accredited mediators to the courts;

6. establishing a code of conduct; and

7. determining sanctions for violations of the code of conduct.

When deciding on the institutional framework for mediation in Belgium, the legislature examined other existing models. The Belgian Parliament resolutely opted for a Commission established by statute. The General Commission established by Parliament is not a professional body and it has no disciplinary powers. As noted above, its role is to accredit mediators, withdraw their accreditation, establish a code of conduct, and determine the sanction when this code is infringed.

The Belgian Law on Mediation does not expressly deal with the issue of appeal of decisions rendered by the General Commission. This suggests that the Council of State (Raad van State/Conseil d'Etat), Belgium's supreme administrative judicial court, would have jurisdiction over such matters, but the jurisdiction of civil State Courts is not excluded either.

It is not difficult to predict that, given the powers of the General Commission, that Commission is likely to come into conflict with other professional bodies, specifically disciplinary bodies of notaries and members of the Bar. Suppose a notary or member of the Bar is accredited as a mediator and then mediates a specific matter. Then suppose that the mediation gives rise to a claim against the mediator. …