If the mediation was contractually agreed, the mediation must be initiated according to the contractually agreed rules.

If mediation was not contractually agreed (which is most common), one party will have to make a mediation proposal to the other party. The latter is free to accept or reject the proposal. After acceptance, parties must reach an agreement on who they want to appoint as mediator. These principles apply equally well when mediation is ordered by the judge. This order does depend on the willingness of the parties to mediate.

Regardless of how the mediator was appointed, the mediator will invite the parties to draw up a mediation protocol. Only after signing this agreement can the negotiation in mediation begin. This mediation protocol is essential if the parties want to have their later agreement approved by the court.

The phases of mediation are explained below:

 

1. First contact.

 

In this phase, the parties are introduced to the mediator and the mediator explains what mediation is, how it works and how a normal mediation process works.

The mediator collects information about the dispute, gauges the parties' positions on the dispute and tries to gain insight into what is important to each person involved. By allowing parties to gain mutual insight into what is important to each of them, a climate of trust can be created in this first phase.

No duration can be placed on this phase because it depends on the attitude and expectations of the parties and how they wish to proceed in the process.

If the parties wish to effectively start the mediation, the parties and the mediator must sign the mediation protocol at the end of the introductory meeting or in a subsequent meeting.

The mediation protocol contains the details of the parties; the description of the dispute or disputes; its costs and distribution; the “game instructions” or principles of the mediation.

After signing, the mediation will effectively start.

 

2. The mediation conversations.

 

The mediator will then give each of the parties the opportunity to explain their vision and position on the dispute at hand. The mediator tries to restore an often clouded communication between the parties. After all, by eliminating any misconceptions and communication disorders, a clearer picture can be obtained of the actual stakes of the dispute. By clearly separating the content of the dispute from the noise caused by emotions, prejudices and apriorisms, parties will become aware of the real problem for which a solution must be found.

From the parties' perspectives, the mediator will clarify the needs and interests of each party based on the parties' submissions. It will almost automatically become clear whether all interests have come to the fore, or whether some of them still lead a dormant existence and could cause the negotiation to fail. The mediator will therefore question the parties about this until the parties formally confirm that there are no interests other than those listed.

Sometimes the need arises to hold separate conversations. This can happen because one party is reluctant to express itself in the presence of the other party. If this occurs, the mediator may propose to the parties to have a separate conversation with each of them. This is called a caucus. Everything said in such a caucus will remain confidential between the mediator and the party concerned, unless the latter expressly agrees to include certain elements in the debate. This equal treatment of parties and confidentiality is necessary to fully safeguard the neutrality of the mediator. The mediator's judicious use of it will often provide a breakthrough in the negotiation.

 

3. Options and negotiations.

 

The mediator explores options for possible solutions together with the parties and helps them to determine the solution that best meets their needs and interests.

Mediation is and remains a negotiation in which the best result for the client is desired. The only difference with a negotiation is that a third party is involved, who is the process monitor and guides the parties in finding a solution.

 

4. End of mediation with or without agreement.

 

It is always possible that the mediation is terminated without an agreement or with a (partial) agreement. In the event of agreement, this agreement will be put on paper and signed by the parties.

In the event of court-ordered mediation, the parties inform the judge of the outcome of the mediation. If they have not reached an agreement, they can request a new deadline or request that the procedure be continued.

When the parties reach an agreement with the help of the mediator - with or without (permanent) assistance of lawyers - what was agreed is written down and signed by the parties.

Article 1733 Judicial Code provides for the possibility of submitting the mediation agreement to the competent court for confirmation. This approval has the consequences of a judgment of approval. There is no obligation to do so and approval is usually requested (by one of the parties is sufficient) if the other party does not perform or comply with its obligations or commitments.

 

5. Further follow-up.

 

The mediator can only follow up the file further after the mediation process if the parties so wish. This may be the case when the implementation of the reached agreement or its evaluation needs to be monitored.