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Mediation does not declare you right

Updated: Jul 24, 2023

Photo by Lavinia Olimid

In Belgium, 700 000 new court cases, out of which 200 000 before the courts of first instance, are filed every year. The European Commission for the Efficiency of Justice* 2020 report (p. 112) cites Belgium as the European leader with an average of 6.8 incoming civil and commercial cases per 100 inhabitants. Romania follows with 6.4 cases. The average of the 45 countries surveyed is 2.4 cases, while France counts 2.2, Germany 1.5, the Netherlands and Luxemburg only 0.8. The sheer number of cases stretches the resources of the judicial system and pushes upwards the average length of a court case.

Family conflicts are too easily taken to court. Before engaging in legal proceedings, it's only prudent to count the potential cost of family conflict. Mediators Stewart Levine and Bruce Edwards have compiled a list of monetary and nonmonetary items adding up to amounts that are hard to accurately estimate.

  • Legal proceedings carry a high degree of uncertainty as to duration and amounts. Contrary to other services we buy, when seeking legal assistance, we know neither the duration nor the final outcome of the case.

  • The typical fees associated with court proceedings are: initial filing fees, legal counsel fees, various bailiff fees and experts' fees. VAT at 21% is not negligible and comes on top of the fees and expenses charged by legal professionals. In Belgium, family mediation is exempted from VAT.

  • The time taken away from work to participate and prepare for audiences translates into lost income and productivity.

  • When families split, family wealth diminishes. Difficult emotions may interfere with the pricing of assets and the timing of asset sales.

  • Relationship conflict seems to have a negative impact on our health. Negative exchanges predict lower self-rated health, greater functional limitations and a higher number of health conditions.

  • Loss of relationships comes as a package with family conflict. Family and friends choose their sides. Even those who would like to continue relationships with all parties will struggle to do it in the long run.

Professional justice is the most expensive conflict resolution mode as it carries with it the whole authority of the State. We appeal to it as it is one of the few places where an authority declares us right. I remember the story of a work colleague many years ago. We were organising a conference together and she was touched by the lecturer, a man of faith, who spoke warmly about his wife. We were young, she told me. And things started to go wrong between us. My friends and relatives were saying that I was right, his friends and relatives were saying that he was right. In the end we divorced. I could see tears in her eyes. If only I knew this then, she said.

Mediation provides a non-legal framework for much needed discussions and clarifications. The Federal Mediation Commission in Belgium estimates that roughly 7 000 mediations took place in 2020 and the provisional figure for 2021 is 10 000. 67% of all mediations concern family conflict. Committing to mediation is not easy. It is difficult and it takes courage. In conflict, we prefere to look for linear cause-and-effect chains, sort of "Who's the bad guy here?" We lose ourselves in debating content. Relationships are actually non-linear, giant feed-back loops, each person continually shaping the response of the other.

Mediation focuses on such a process. It does not force conflict resolution on people. It helps in the here and now on how to engage with each other. Once each participant perceives the issues at stake through the other's lens, negociation can start. Conflict resolution is just a point in time, the end of a process.

*The European Commission for the Efficiency of Justice (CEPEJ) was established by the Committee of Ministers of the Council of Europe in September 2002. It evaluates regularly the judicial systems of the Council of Europe member States and some observer States in the interest of their 850 million inhabitants.

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