Mandatory Mediation from a European and Comparative Law Perspective

Summary

INTRODUCTION

Alternative dispute resolution (ADR) has gained a great amount of popularity over the past couple of decades, especially in family law and separation cases. Fairly recently, some countries have even introduced a form of (semi-)mandatory alternative dispute resolution in family law, mostly mediation. Belgium is one of those countries which has enacted a law, which (partly) entered into force on 12 July 2018. This law introduces a provision that allows the judge to refer a case to mediation on a (semi-)mandatory basis. This chapter aims at two things: (1) finding where the Belgian provisions fit within the larger framework/typology of existing legislation on mandatory mediation/ alternative dispute resolution in family law both in and outside of Europe; and (2) identifying what Belgium can learn from possible problems and successes that other countries have encountered on a legal basis, and secondarily on the basis of use, satisfaction, etc. First, the meaning of mediation, and why the mandatory feature seems to be contradictory at first sight, will be clarified. Subsequently, the European regulations, with a primary focus on the European Mediation Directive, and some cases of the European courts will be examined to see whether or not mandatory mediation is allowed by the EU. Then, a selection of other countries that have already implemented regulations concerning mandatory alternative dispute resolution in family law will be analysed to see which types already exist, how they work and if they have encountered any problems. Lastly, the relevant articles of the Belgian Act of 18 June 2018 will be discussed to determine where Belgium currently stands within the typology of mandatory alternative dispute resolution in family law and also what it can learn from other countries while further developing the concept.

WHAT IS MANDATORY MEDIATION?

Alternative dispute resolution and especially mediation have been the subject of many debates and papers over the past decades. Mediation has become a pretty popular form of alternative dispute resolution to use in family law cases, especially in separation cases and cases concerning child custody. But what does the notion of mandatory mediation mean? These two words contain a great amount of substance and can be explained in a number of different ways.