What is mediation?
Some of the most important mediation principles are these:
Mediation is a voluntary process and any participant may terminate it at any time.
All oral and written information shared in mediation is confidential and cannot be used in legal proceedings. The mediator cannot be called to bear witness in court.
The mediator is neutral and will not advise or make decisions for the participants. It is in the best interest of participants to seek legal advice early as this will help a participant to better understand and appreciate the fairness of any proposal made by the other/s participant/s.
Topics of discussion
In Belgium, parents jointly exercise parental authority over the child under 18 whether the parents live together or not and whether they are married or not. Parents make together important decisions regarding the child's health, upbringing, education, leisure activities and the child's religion. Sometimes such decisions can be challenging.
Parents who separate will continue to jointly exercise parental authority, and need to discuss issues relating to contact with the child, child residence, the weekly schedule of their child during school term and holidays, what extra-curricular activities the child will follow, how they will take care of transportation between residences and to activities, etc. If getting to an greement is problematic, mediation might be an alternative to a court decision.
Other mediation topics may concern financial matters, such as child support allowance, spousal support and division of family assets and debts.
Emotionally and financially charged inheritance disputes are also suitable for family mediation. Other wider family disputes, e.g. between parents and their adult children, between siblings or those related to the contact between minor children and their extended family make also family mediation topics.
Duration and cost
The number of sessions required to reach an agreement varies according to the complexity of the dispute. Less time is needed if the participants are well informed of their options, for example by seeking legal and accounting advice.
A mediation session
The Agreement to Mediate (Protocole de médiation) is a document about one or two pages long. It identifies the participants, summarises the topics that the participants wish to discuss, the principles of mediation, the role of the mediator, the conduct in mediation and the mediator's fees. The Agreement to Mediate is signed by the participants and the mediator.
The Mediation Accord
A Mediation Accord concluded in the presence of a mediator accredited by the Federal Mediation Committee can in principle be declared authentic and enforceable by the Brussels Family Court, without its content being called into question. It is therefore most important that parties send the draft accord to their lawyers and receive counsel before the signature of the final accord.
Since the mediator cannot give advice to participants and given that financial provisions in the accord have tax consequences, participants are strongly encouraged to seek tax/accounting advice before the signature of the final accord.
One or other of the parties on their own, the parties together or their lawyers may seek approval of the mediation accord from the Brussels Family Court in order to give it the strength of a judgement. In certain situations, such as divorce, lawyers convert the terms of the mediation accord in a form acceptable to the court.
Mediation accords are the sum of participants' decisions and therefore are expected to be implemented and function smoothly. In the event that one party does not observe a court approved mediation accord, it still retains the strength of a judgement and it is enforceable. Participants can (and should) return in mediation to adapt or change provisions, e.g. as children get older and their circumstances change over time.