Commercial mediation is an alternative dispute resolution method that is increasingly popular in Belgium. Governed by articles 1723/1 to 1737 of the Judicial Code, it allows businesses to resolve their disputes quickly, confidentially and affordably, without going to trial. This article details the legal framework, the procedure, the costs and the benefits of mediation for Belgian entrepreneurs.
Legal framework for mediation in Belgium
The founding texts
| Text | Content |
|---|---|
| Judicial Code, articles 1723/1 to 1737 | The general framework for mediation (amended by the law of 18 June 2018) |
| Law of 21 February 2005 | Introduced mediation into the Judicial Code |
| Law of 18 June 2018 | A major reform promoting the use of mediation |
| European Directive 2008/52/EC | Mediation in civil and commercial matters (cross-border) |
| European ODR Regulation (524/2013) | Online resolution of consumer disputes |
The law of 18 June 2018: a turning point
This law significantly reformed mediation in Belgium by:
- Widening the scope of mediation
- Strengthening the judge's role in promoting mediation
- Creating a renewed Federal Mediation Commission (CFM)
- Requiring judges to inform parties of the option to use mediation
- Allowing judges to order mediation (with the parties' agreement) at any stage of proceedings
What is commercial mediation?
Definition
Mediation is a voluntary, confidential and structured process in which a neutral, impartial third party (the mediator) helps the parties in conflict find their own solution to their dispute.
Mediation vs other dispute resolution methods
| Method | Decision-maker | Binding | Confidential | Average duration | Average cost |
|---|---|---|---|---|---|
| Mediation | The parties themselves | No (unless a signed agreement) | Yes | 1 to 3 months | EUR 2,000 – 10,000 |
| Arbitration | The arbitrator | Yes (enforceable award) | Yes | 6 to 18 months | EUR 10,000 – 100,000 |
| Conciliation | The conciliator proposes | No | Variable | 1 to 3 months | EUR 1,000 – 5,000 |
| Court proceedings | The judge | Yes (judgment) | No (public hearing) | 12 to 36 months | EUR 5,000 – 50,000+ |
The difference between voluntary and judicial mediation
Voluntary mediation (article 1730 of the Judicial Code):
- The parties freely decide to use a mediator
- Can take place before or entirely outside any court proceedings
- The mediator is chosen by the parties
Judicial mediation (article 1734 of the Judicial Code):
- The judge proposes (or the parties request) mediation during proceedings
- Court proceedings are suspended during the mediation
- The mediator is appointed by the judge or chosen by the parties
- If mediation fails, court proceedings resume
The accredited mediator
The Federal Mediation Commission (CFM)
The CFM is the body that accredits mediators in Belgium. It is made up of representatives of the bar associations, chambers of notaries, professional organisations and mediation experts.
Accreditation requirements
To be accredited, a mediator must:
- Have specific training in mediation (at least 60 hours of theoretical training plus practical training)
- Demonstrate experience suited to the field of mediation
- Provide guarantees of independence and impartiality
- Take out professional civil liability insurance
- Comply with a code of ethics approved by the CFM
- Undertake ongoing continuing education
Finding an accredited mediator
The list of accredited mediators can be consulted on the CFM's website (cfm-fbc.be). You can search by:
- Area of expertise (commercial, civil, social, family)
- Language (French, Dutch, German, English)
- Region (Brussels, Wallonia, Flanders)
Commercial mediation organisations
Several organisations offer commercial mediation services in Belgium:
- CEPANI (Belgian Centre for Arbitration and Mediation): arbitration and mediation for commercial disputes
- bMediation: a business mediation platform
- Chambre de médiation de Belgique
- Mediationenbelgique.be: an information portal
The commercial mediation procedure
Step 1: Initiating mediation
Mediation can be initiated:
- By one of the parties contacting a mediator
- Jointly by both parties
- By the judge, who proposes mediation during proceedings
- Under a mediation clause included in the contract
Step 2: The mediation protocol
The parties and the mediator sign a mediation protocol (article 1731 of the Judicial Code), which sets out:
- The identity of the parties and the mediator
- The subject of the dispute
- The voluntary and confidential nature of the mediation
- The mediator's fees and how costs are shared
- The location and schedule of sessions
- The procedural rules (deadlines, exchange of documents)
Step 3: Mediation sessions
A typical process:
- Opening session: the mediator explains the framework, the confidentiality rules and each party's role
- Parties' statements: each party presents its version of events and its expectations
- Identifying interests: the mediator helps identify the real interests behind the stated positions
- Separate sessions (caucus): the mediator meets each party individually to explore solutions
- Negotiation: the parties look for mutually acceptable solutions
- Agreement: if an agreement is reached, it is put in writing
Step 4: The mediation agreement
If the parties reach an agreement, it is recorded in a written document signed by all the parties and the mediator. This agreement can be:
- A simple contractual agreement between the parties (contractually binding)
- Ratified by the court to obtain enforceable status (article 1733 of the Judicial Code): the judge checks that the agreement does not breach public policy
Step 5: In the event of failure
If mediation fails:
- The parties keep all their rights to take legal action
- The discussions and information exchanged during the mediation remain confidential and cannot be used as evidence before the court
- Limitation periods are suspended for the duration of the mediation (article 1735 of the Judicial Code)
Confidentiality: a major advantage
The principle
Article 1728 of the Judicial Code imposes an absolute confidentiality obligation:
- Documents exchanged during mediation are confidential
- Statements made by the parties cannot be used as evidence in court
- The mediator cannot testify in court about the content of the sessions
- The parties undertake not to disclose the information exchanged
Exceptions to confidentiality
Confidentiality does not apply:
- To information the parties agree to make public
- Where disclosure is necessary to carry out the agreement
- To situations involving serious criminal offences
- To information a party was entitled to disclose independently of the mediation
The mediation clause in contracts
Recommended wording
It is strongly recommended to include a prior mediation clause in commercial contracts. Example clause:
"In the event of a dispute relating to the validity, interpretation or performance of this contract, the parties undertake to first attempt mediation in accordance with articles 1723/1 et seq. of the Judicial Code, before taking any legal action. Mediation will be conducted by a mediator accredited by the Federal Mediation Commission, chosen by mutual agreement or, failing that, appointed by CEPANI. If mediation does not succeed within [60/90] days, the parties regain full freedom of action."
Validity of the clause
Belgian case law recognises the validity of prior mediation clauses. If a party goes to court without first attempting mediation, the judge may:
- Stay proceedings and refer the parties to mediation
- However, a mediation clause cannot prevent access to a judge (a fundamental right)
Costs of commercial mediation
Mediator's fees
| Type of mediator | Hourly rate | Flat fee per session (3-4 hours) |
|---|---|---|
| Accredited mediator (non-lawyer) | EUR 100 – 200/h | EUR 400 – 800 |
| Lawyer-mediator | EUR 150 – 350/h | EUR 600 – 1,400 |
| CEPANI (institutional mediation) | Per fee schedule | Administration fees: EUR 500 – 2,500 + fees |
Average total cost of commercial mediation
| Item | Estimated amount |
|---|---|
| Mediator's fees (3 to 5 sessions) | EUR 2,000 – 7,000 |
| Administrative costs (CEPANI, room hire) | EUR 500 – 2,000 |
| Legal counsel fees (optional) | EUR 1,000 – 5,000 |
| Total | EUR 3,500 – 14,000 |
Comparison with commercial court proceedings
| Item | Mediation | Court proceedings (Enterprise Court) |
|---|---|---|
| Duration | 1 to 3 months | 12 to 36 months |
| Lawyer's fees | EUR 1,000 – 5,000 | EUR 5,000 – 30,000+ |
| Court costs (filing fees, expert reports) | EUR 0 | EUR 1,000 – 10,000+ |
| Mediator/judge | EUR 2,000 – 7,000 | Included in court costs |
| Publicity | Confidential | Public (public hearings) |
| Business relationship | Preserved | Often destroyed |
| Estimated total cost | EUR 3,500 – 14,000 | EUR 10,000 – 50,000+ |
Types of commercial disputes suited to mediation
Disputes ideal for mediation
- Conflicts between partners or shareholders (strategic disagreements, share valuation)
- Disputes between suppliers and clients (late payment, quality of services)
- Conflicts between franchisor and franchisee (contract interpretation, territory)
- Intellectual property disputes (unauthorised use, small-scale infringement)
- Commercial neighbourhood conflicts (nuisance, unfair competition)
- Post-contractual disputes (termination indemnity, non-compete)
- International conflicts between companies from different countries
Disputes less suited to mediation
- Situations involving clear bad faith by one party
- Disputes requiring a ruling on a point of principle (case law)
- Cases of fraud or criminal conduct
- Emergencies requiring immediate interim measures
- Situations where one party categorically refuses mediation
Success rates and statistics
According to data from the Federal Mediation Commission and CEPANI:
- Success rate for commercial mediation in Belgium: about 70 to 75%
- Average duration: 2 to 3 sessions over a period of 4 to 8 weeks
- Party satisfaction: more than 80% report being satisfied with the process, even where it fails
- Compliance with agreements: more than 90% of mediation agreements are honoured voluntarily (against about 60% for judgments)
Mediation and legal aid
People eligible for second-line legal aid (formerly "pro Deo") can access mediation free of charge. The accredited mediator can be paid by the court's Legal Aid Office (BAJ).
Conclusion
Commercial mediation is a powerful tool that is underused by Belgian businesses. It offers a fast (1 to 3 months versus 12 to 36 months for a trial), affordable (3 to 5 times cheaper) and confidential alternative to judicial dispute resolution. With a success rate of 70 to 75%, it deserves to be systematically considered before any court proceedings. Consider including a prior mediation clause in your commercial contracts and check the list of accredited mediators on the Federal Mediation Commission's website (cfm-fbc.be).
