Arbitration is an alternative form of dispute resolution. The parties hand over the final decision regarding their dispute to one or more impartial arbitrators sitting as an arbitral tribunal. It is private justice arranged outside the government funded court system and is financed by the parties themselves. It may be managed according to the rules of an arbitration institute or ‘ad hoc’ where the parties make their own arrangements as to procedure and how the arbitrator(s) will be appointed. The Arbitration Act (Book 6 of the Belgian Judicial Code) provides certain procedural rules and control mechanisms that apply if the parties have not made specific agreements about arbitration. It defines the powers of arbitral tribunals.

A dispute will only be settled by arbitration if the parties mutually agree to it, often through an arbitration clause inserted in a contract.

The arbitrator(s) decision is called an arbitral award and is as binding on the parties as an award made by the traditional courts. The possibility of appeals is limited. In Belgium the arbitral award may only be appealed where the parties have provided for this possibility in their arbitration agreement.

To enforce the arbitral award, the successful party will apply to the Court of First Instance for a declaration of enforceability. In this "exequatur” procedure the merits of the case will not be reassessed, and the court will limit itself to a review of the formalities.

When parties no longer recognise that their real interests may lead to different solutions from those of the (rigid) positions they have adopted.

In binding third-party decision-making, the parties agree that a third party (who is not a judge or arbitrator) will decide in their place on a particular legal or factual aspect of their legal relationship and accept that this decision is binding on them. The decision made by the binding third-party decider has the same force for the parties as an agreement between them. In principle, the parties can only challenge the decision in case of manifest unreasonableness, conflict with public policy or any fraud committed during its preparation.

The binding third-party decision usually settles a specific aspect of the disagreement between parties.

The matters left to the discretion of a binding third-party decider are very diverse in practice. For example: in the event of a dispute about a pre-purchase clause in the context of a shareholders' agreement, a binding third-party decider may be asked to determine how the clause should be interpreted; or exactly how much the rental damage at the end of a commercial lease amounts to; or whether or not certain actions of a distributor can be characterised as an urgent reason for terminating the distribution agreement.

A conversation that the mediator has with one of the parties separately, the content of which also remains confidential from the other party, unless expressly agreed otherwise between the mediator and the party concerned in the caucus.

Collaborative negotiation is regulated by Article 1738 and following of the Judicial Code. It concerns a structured way of transparent and confidential negotiation in which a lawyer, recognised as "collaborative lawyer" after special training, assist their clients. If they reach a collaborative negotiation agreement, it can be submitted to the court for approval. If the collaborative negotiation fails, the collaborative lawyers are obliged to cease their intervention and may no longer intervene in the dispute between the parties.

An expert assists one party and has specific technical knowledge useful to resolve the dispute, e.g. lawyer, architect, auditor, accountant, consultant, physician, surveyor, notary, …). When assisting their client during the mediation the experts will help their client to test proposed options and solutions against reality and will contribute to the correct formulation and formalisation of the proposed mediation agreement.

‘Homologation’ (certification) involves a party making a unilateral application to the court to certify that the mediation agreement is enforceable. The court can only refuse homologation if the content of the mediation agreement would be contrary to public policy. After homologation, the mediation agreement will have the same legal consequences as a settlement order, which is not subject to appeal or judicial annulment by ‘cassation’ and is enforceable against the parties.

When the court decides to appoint a mediator. A mediation can be initiated at any stage of the proceedings, including in summary proceedings, if the court considers that reconciliation is possible between the parties and provided that a reasonable period of time for obtaining a judicial decision will not be exceeded.   The judge may order a mediation on his or her own initiative, at the joint request of the parties, or after a request from one of the parties and after hearing the parties. However, if all of the parties object, the judge cannot make a mediation order.

Judicial mediation is governed by Articles 1734 to 1737 of the Judicial Code.

Moment in the mediation when purely legal matters are discussed.

At a certain point in the mediation, the mediator may sit together with counsel for the parties, if desired, to allow them to present and weigh legal arguments against each other, or to facilitate the elaboration of legal solutions.

For example, a legal table may be a useful way to convert the agreement reached by the parties into a clear, unambiguous, and balanced written text of the mediation agreement.

Confidential and structured process of voluntary consultation between conflicting parties, with the participation of an independent, impartial and neutral third party (the mediator) who facilitates communication between the parties and facilitates the parties working out for themselves a stable and balanced solution that serves the interests of all concerned to the greatest possible extent.

Clause (e.g. in an agreement, in articles of association, in a code of conduct or charter ...) agreeing or announcing that any disputes shall be resolved by mediation in the first place.

Independent, impartial and neutral third party who guides conflicting parties to reach their own solution to a dispute, rather than having that solution imposed by a judge or arbitrator. To this end, the mediator structures the confidential discussions between the parties and breaks down existing negotiation barriers. When the mediator is recognised by the Federal Mediation Commission, the mediation agreement reached under his or her guidance can be submitted to the court for approval.

When parties themselves take the initiative to try to resolve their conflict through mediation. Any party may propose mediation independently of any court or arbitration proceedings, before, during or after a court hearing. Extra-judicial mediation is regulated by Articles 1730 to 1733 of the Belgian Judicial Code.

The liability one risks incurring by breaking off negotiations improperly. Article 5.17 of the Belgian Civil Code says the following in this regard (our informal translation):

’Pre-contractual liability’
Parties may incur extra-contractual liability towards each other during pre-contractual negotiations. (…) When negotiations are broken off incorrectly, the remedy for such liability involves putting the aggrieved person back in the situation he would have found himself in had negotiations not taken place. Where there was a legitimate expectation that the contract would certainly be concluded, such liability may include recovery of the loss of expected net benefits from the contract that was not concluded.

A negotiation method founded by Harvard professors Roger FISHER and Wiliam URY, built around 4 basic principles :
1. Separate the people from the problem
2. Focus on interests, not positions
3. Find options that yield mutual gains
4. Use objective criteria in case of conflicting interests

A settlement agreement is an agreement whereby the parties end a dispute that has arisen, or prevent a future dispute, by making mutual concessions. The settlement agreement provides for a final settlement to which the parties cannot subsequently object, except in very exceptional cases, inter alia of proven defects of intent (error as to person or concerning the object of the dispute, deceit, violence) or if it was entered into on the basis of documents subsequently found to be false.

Independent and neutral person specialising in insolvency law and corporate restructuring. A restructuring practitioner can help a company experiencing financial difficulties to reach an agreement with its creditors. He or she need not necessarily be an "accredited mediator". (The Corporate Mediator was previously recognised by old article XX.36 of the Belgian Code of Economic Law (BCEL) but they were rarely appointed in practice. Under the new insolvency legislation, (BCEL article Art. I.23. 7° /01) as of September 1, 2023, a restructuring practitioner may be appointed.)