Originally from Dispute Resolution Journal

On Sept. 30, 2005, the Belgian Law on Mediation dated Feb. 21, 20051 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 court-instigated 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.