Since 2005 mediation has been recognised by law as a method of settling of disputes.
In the same year the Brussels Bar adopted a regulation that compels lawyers to properly investigate whether or not the conflict presented to them would be better or more quickly resolved by a mediation than by traditional proceedings.
Mter Bruno-Henri VINCENT and Mter Vincent CHIAVETTA are both certified mediators in social affairs and active members of the non-profit organisation ‘Sociale Bemiddeling en Verzoening’ of which Mter Bruno-Henri VINCENT is one of the founders.
But what exactly is mediation? What are its advantages and disadvantages? Can all conflicts be resolved in this way? Is a lawyer compelled to proceed with mediation?
A true story may clarify better than a long theoretical explanation.
Jacques Dinam against Big Press (fictitious names)
Jacques Dinam has created an original website in the multimedia sector. He creates a small company for the enterprise. The idea is clever and appealing but Jacques does not have the resources needed to develop it. He discusses the matter a large press group which wishes to develop a multimedia arm. The deal is sealed: Jacques sells his company to Big Press and Big Press takes Jacques on as multimedia director. It is decided that the price of the sale would be established on the basis of the profits achieved over the first years. OK, but the relationships soon became tense: Jacques is very independent and when he does not agree with a decision of the general management he says it straight away. The tension increases and a crisis starts to loom. There is talk of Jacques being dismissed. Jacques is not too concerned about being dismissed because he has other projects. Nevertheless, he does fear for the future of his product: the conflict started too early, if he is dismissed now no one at Big Press will have had enough time to acquire the necessary skills to further manage and develop the project. Jacques will be disadvantaged here because he will not receive the selling price he was hoping. On the other hand Big Press is not happy that no transfer of know-how at the time of the sale has been organised. What now?
This dispute could have ended very badly: two law courts are authorised (the employment tribunal and the commercial law court) to judge complementary aspects of one and the same problem. Big Press was entitled to dismiss Jacques, but at the same time they were shooting themselves in the foot. Jacques would not stay but did not want to leave “his child” behind and be morally and financially disadvantaged as a result. Legal proceedings were prepared on both sides. In a nutshell: a war was being prepared which would only have losers.
The dispute was subjected to mediation. A solution was found within two weeks. Thanks to clarification of the interests and a just and non-aggressive exchanging of thoughts, the protagonists came to an agreement concerning the basics: the know-how would be validly transferred while a certain price would be guaranteed. Jacques would also commit himself to be available in the event of great urgency.
No judge would have been able to rule this. The conflict was resolved ‘in real time’. The lawyers made their clients aware, they informed them. The parties together chose a mediator before taking part in the process of mediation. In the end they also drew up a text of the final agreement. The interests of everyone were actually safeguarded.
This true story of cooperation seems like plain sailing. Or possibly when looking back. It did not seem so at the time of the origination of the conflict. The work of the lawyer authorised for mediation also consists of quickly identifying the essential interests, while reasoning in a way other than during legal proceedings.
Yes, but in the ‘Jacques Dinam versus Big Press’ case each party was aware of the risks of the conflict – there was a clear interest in peace that is not always the case, you will say. You are right: it is not always the case, but nevertheless it is more often the case than one may think. To succeed here one must first consider the perception of the case and subsequently make the ‘other party’ aware of the importance of the other way of seeing things.
With the clarification of the situation beforehand and with the will to listen to each other, the mediation resolved the misunderstandings in a natural way. The legitimate interests of everyone being respected brings trust. Because they are allowed to express their emotions, sustainable peace is encouraged. Any situation can be changed with original solutions being offered. And because the parties themselves seek the solution, this also has a healing effect.
There are many cases suitable for mediation: bullying at work, dismissal for urgent reasons, the origination of a collective conflict at work, a discussion concerning the payment of overtime, a conflict about refused promotion, a change of commercial sector, etc. Both employers and employees enjoy the benefits.
Would you like to know more about the role of lawyer/advisor concerning mediation or the benefits of mediation and its procedural and financial conditions? Surf to www.mcsociale.be and visit the different information pages.