What is mediation?
Some of the most important mediation principles are these:
Mediation is a voluntary process. No one can be constraint to participate in mediation.
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. In separations or successions or in any situation where decisions entail financial consequences, It is in the best interest of participants to seek legal advice early. This will help participants 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. Parents make together important decisions regarding the child's health, upbringing, education, leisure activities or the child's religion. Sometimes agreeing on such decisions can be challenging. This is why the Civil Code states that "in the absence of agreement, the father or mother may refer the matter to the Youth Court" (art. 373). This mention concerns parents who live together, married or not, and the judge "may authorize the father or mother to act alone for one or more specific acts." The mediation alternative is quicker, restorative and cost effective.
Parents who separate will continue to exercise parental authority jointly. The type of child residency they choose or is imposed by the Court (shared residence or primary residence with one parent and secondary with the other) does not affect the exercise of parental authority. Mediation offers a space for parents to decide together where the child will live during school term and school holidays, what extracurricular activities the child will attend, who will be responsible for transportation between residences and activities, share information about school reports and medical concerns, how to consult each other about a parenting decision, how to spend family events and religious festivals etc.
Other mediation topics may concern financial matters, such as child support allowance, spousal support and division of family assets and debts. Mediation ensures that the interests of both parties are respected and encourages creative solutions.
Inheritance disputes and other family conflicts, e.g. between parents and their adult children, between brothers and sisters or related to the right to personal relationships (of grandparents, aunts, uncles, step-parents, godparents...) with minor children also benefit from the calming effects of mediation.
Duration and cost
In general, 3 to 5 sessions are necessary to reach an agreement when participants are well informed of their options ( by seeking legal and tax advice). Mediation is a process and with any process, regularity is key. Once you decide to start mediation, meeting in weekly or bi-monthly sessions builds the dialogue up and works towards finding an agreement much better than holding emergency meetings.
A mediation session
The Agreement to Mediate (Protocole de médiation) is a document about one or two pages long. It includes the participants' names, the topics that they 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 concerning a separation or minor children concluded in the presence of a family mediator accredited by the Federal Mediation Commission can in principle be declared authentic and enforceable by the Brussels Family Court. Its content will not be called into question unless it is contrary to the interest of the child. 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 the other participants on their own, the participants together or their counsels may seek approval of a mediation accord concerning a separation or minor children 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 return in mediation to adapt or change provisions, e.g. as children get older and their needs change or parents' circumstances change.