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An Act To Amend The Judicial Code As Regards Mediation (1)

Original Language Title: Loi modifiant le Code judiciaire en ce qui concerne la médiation (1)

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21 FEBRUARY 2005. - An Act to amend the Judicial Code with respect to mediation (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. Section 665, 5°, of the Judicial Code, inserted by the law of 19 February 2001, is replaced by the following:
"5° to mediation procedures, voluntary or judicial, conducted by a mediator authorized by the commission referred to in 1727. »
Art. 3. Article 671, paragraph 1er, of the same Code, as amended by the Act of 19 February 2001, the words "Judicial assistance also covers costs in the context of the family mediation procedure" are replaced by the words "Judicial assistance also covers the costs and fees of the mediator in the course of a judicial or voluntary mediation procedure, conducted by a mediator authorized by the commission referred to in 1727. »
Art. 4. In section 692 of the same Code, as amended by the Act of 19 February 2001, the words "the fees and fees of the mediator in family matters designated in accordance with section 734bis" are replaced by the words "the fees and fees of the mediator in the course of a judicial or voluntary mediation procedure, conducted by a mediator authorized by the commission referred to in section 1727".
Art. 5. In section 696 of the same Code, amended by the Act of 19 February 2001, the words ", to the family mediator designated in accordance with section 734bis" are replaced by the words ", to mediators authorized by the commission referred to in section 1727".
Art. 6. In section 731 of the same Code, the words "Every principal request" are replaced by the words "Without prejudice to the provisions of sections 1724 to 1737, any principal request".
Art. 7. Article 1018, paragraph 1er, 7°, of the same Code, as amended by the Act of 19 February 2001, is replaced by the following:
"7° the fees, emoluments and expenses of the mediator designated in accordance with Article 1734. »
Art. 8. It is inserted in a seventh part of the same Code entitled "Mediation", under a chapter Ier " General principles " , article 1724, as follows:
"Art. 1724. Any dispute that may be settled by transaction may be the subject of mediation, as well as:
1° Disputes relating to the substances referred to in chapters V and VI of title V, chapter IV of title VI and title IX of book Ier Civil Code;
2° Disputes relating to the substances referred to in Book III of the same Code;
3° disputes brought in pursuance of sections Ire Chapter XI of Book IV of Part IV of this Code;
4° the disputes arising from de facto cohabitation.
Public legal persons may be parties to mediation in cases provided for by law or by royal decree deliberated in the Council of Ministers. »
Art. 9. In the same chapter, an article 1725 is inserted, as follows:
"Art. 1725. § 1er. Any contract may contain a mediation clause, whereby the parties undertake to resort to mediation in advance to any other way of resolution of any disputes that the validity, training, interpretation, execution or termination of the contract may result.
§ 2. The judge or arbitrator before a dispute that is the subject of a mediation clause shall suspend the consideration of the case at the request of a party, unless, in respect of this dispute, the clause is not valid or terminated. The exception must be proposed before any other defence and exception. The review of the case is continued as soon as the parties or one of them notified the Registry and other parties that the mediation has ended.
§ 3. The mediation clause does not impede requests for interim and interim measures. The introduction of such requests does not result in a waiver of mediation. »
Art. 10. In the same Chapter, an article 1726 is inserted, as follows:
"Art. 1726. § 1er. The mediators who meet at least the following conditions may be approved by the commission referred to in Article 1727:
1° possess, by the present or past year of an activity, the qualification required in respect of the nature of the dispute;
2° justify, as the case may be, training or experience adapted to the practice of mediation;
3° to present the guarantees of independence and impartiality necessary for the exercise of mediation;
4° having not been convicted in the criminal record and incompatible with the exercise of the function of an authorized mediator;
5° did not have a disciplinary or administrative penalty, incompatible with the exercise of the function of a registered mediator, or have been subject to withdrawal of approval.
§ 2. Authorized mediators are subject to ongoing training whose program is approved by the commission referred to in section 1727.
§ 3. This article also applies when appealing to a college of mediators. »
Art. 11. In the same Chapter, an article 1727 is inserted, as follows:
"Art. 1727. § 1er. A federal mediation commission is established, composed of a general commission and special commissions.
§ 2. The general commission is composed of six members specialized in mediation, namely: two notaries, two lawyers and two representatives of the mediators who do not practise the profession of lawyer or notary.
It is ensured, in the composition of the general commission, a balanced representation of areas of intervention.
The general commission has as many French-speaking members as Dutch-speaking members.
For each effective member it is designated an alternate member.
The terms of the publication of the holidays, the nomination of candidates and the presentation of the members shall be determined by ministerial order.
The actual and alternate members shall be appointed by the Minister of Justice on the basis of the following:
- of the Order of Francophone and German-speaking Bars for the lawyer belonging to this Order;
- Orde van Vlaamse balies for the lawyer belonging to this Order;
- the royal federation of notaries, for notaries;
- representative bodies for mediators who do not practise the profession of lawyer or notary.
The term of an effective member is four years and is renewable.
§ 3. The general commission shall designate its president and vice-president for a period of two years, who shall replace the president, if any, and a secretary, as alternately assigned to a francophone and a Dutch-speaking person. In addition, the Presidency and the Vice-President are alternately exercised by notaries, lawyers and mediators who do not practise the profession of lawyer or notary.
The General Committee shall establish its rules of procedure.
In order to deliberate properly, the majority of the members of the commission must be present. In the event of absence or incapacity of an effective member, the alternate shall replace the member. Decisions are made by a simple majority of votes. In the event of parity, the President's or Vice-President's voice is preponderant.
§ 4. Three special commissions are established to advise the General Committee.
- a special family commission;
- a special civil and commercial commission;
- a special social commission.
These special commissions are composed of specialists and practitioners of each of these types of mediation, namely:
two notaries, two lawyers and two representatives of mediators who do not practise the profession of lawyer or notary.
The special commissions include as many French-speaking members as Dutch-speaking members.
For each effective member it is designated an alternate member.
The terms and conditions for the publication of the holidays and the submission of applications shall be determined by ministerial order.
The actual and alternate members are appointed by the Minister of Justice on a reasoned presentation:
- of the Order of Francophone and German-speaking Bars for the lawyer belonging to this Order;
- Orde van Vlaamse balies for the lawyer belonging to this Order;
- the royal federation of notaries, for notaries;
- representative bodies for mediators who do not practise the profession of lawyer or notary.
The term of the effective member is four years and is renewable.
§ 5. Each special commission shall designate its president and vice-president for a period of two years, who shall replace the president, if any, and a secretary, as alternately assigned to a francophone and a Dutch-speaking person.
It establishes its rules of procedure.
In order to deliberate properly, the majority of members of the special commission must be present. In the event of absence or incapacity of an effective member, the alternate shall replace the member. Decisions are made by a simple majority of votes. In the event of parity, the President's or Vice-President's voice is preponderant.
§ 6. The functions of the General Committee are as follows:
1° Accrediting the mediator training bodies and the trainings they organize;
2° determine the accreditation criteria of mediators by type of mediation;
3° Accrediting mediators;
4° withdraw, temporarily or permanently, the approval granted to mediators who no longer meet the requirements of Article 1726;
5° fix the procedure for registration and withdrawal, temporary or final of the title of mediator;
6° prepare and disseminate the list of mediators to courts and tribunals;
7° establish a code of conduct and determine the penalties resulting from it.
The commission's decisions are motivated.
§ 7. The Minister of Justice shall make available to the Federal Mediation Commission the personnel and facilities necessary for its operation.
The King determines the presence token that may be allocated to members of the Federal Mediation Commission. »
Art. 12. In the same Chapter, an article 1728 is inserted, as follows:
"Art. 1728. § 1er. The documents and communications made during and for the purposes of mediation are confidential. They may not be used in judicial, administrative or arbitral proceedings or in any other dispute resolution proceedings and are not admissible as evidence, even as an extrajudicial confession. The obligation of secrecy can only be waived with the agreement of the parties to allow the judge to homologate mediation agreements.
In the event of a breach of this obligation of secrecy by one of the parties, the judge or arbitrator shall decide on the possible award of damages. Confidential documents that are, in spite of any disclosure or on which a party is based in violation of the obligation of secrecy are deviated from the proceedings.
Without prejudice to the obligations imposed by the law, the mediator cannot make public the facts of his or her office. He cannot be called as a witness by the parties in a civil or administrative procedure relating to the facts before him during the mediation. Section 458 of the Criminal Code applies to the mediator.
§ 2. As part of its mission and for the needs of the latter, the mediator may, with the agreement of the parties, hear the third parties consenting to it or when the complexity of the case so requires, use the services of an expert, specialist in the area under review. These are subject to the obligation of secrecy referred to in § 1erParagraph 1er. § 1erParagraph 3 applies to the expert. »
Art. 13. In the same Chapter, an article 1729 is inserted, as follows:
"Art. 1729. Each of the parties may at any time terminate mediation, without prejudice to it. »
Art. 14. It is inserted in the same part under a Chapter II entitled “Voluntary mediation”, an article 1730, which reads as follows:
"Art. 1730. § 1er. Any party may propose to the other parties, regardless of any judicial or arbitral proceedings, before, during or after the course of a judicial proceeding, to resort to the mediation process. The parties shall designate the joint mediator or charge a third of that designation.
§ 2. If the proposal is sent by registered mail and contains the claim of a right, it is considered to be the subject of article 1153 of the Civil Code.
§ 3. Under the same conditions, the proposal suspends the course of the limitation of action attached to this right for a month. »
Art. 15. In the same chapter, an article 1731 is inserted, as follows:
"Art. 1731. § 1er. The parties define, with the assistance of the mediator, the modalities for organizing mediation and the duration of the process. This agreement is recorded in writing in a mediation protocol signed by the parties and by the mediator. The costs and fees of the mediation shall be borne by the parties by equal shares, unless they decide otherwise.
§ 2. The mediation protocol contains:
1 the name and domicile of the parties and their counsels;
2° the name, quality and address of the mediator, and, where applicable, the mention that the mediator is approved by the commission referred to in 1727;
3° the recall of the voluntary principle of mediation;
4th a brief statement of the dispute;
5° a reminder of the principle of confidentiality of communications exchanged in the course of mediation;
6° the method of fixing and the fee rate of the mediator, as well as the terms of their payment;
7° the date;
8° the signature of the parties and the mediator.
§ 3. The signature of the protocol suspends the statute of limitations during mediation.
§ 4. Unless expressly agreed by the parties, the suspension of the limitation shall end one month after the notification made by either party or by the mediator to the other or other parties of their willingness to terminate the mediation. This notification shall be made by registered letter. »
Art. 16. In the same Chapter, an article 1732 is inserted, as follows:
"When the parties reach a mediation agreement, it is the subject of a written document dated and signed by them and the mediator. Where applicable, reference is made to the accreditation of the mediator.
This writing contains the specific commitments made by each of them. »
Art. 17. In the same Chapter, an article 1733 is inserted, as follows:
"Art. 1733. In the event of an agreement, and if the mediator who conducted the mediation is approved by the commission referred to in Article 1727, the parties or one of them may submit the mediation agreement obtained in accordance with Articles 1731 and 1732 for approval to the competent judge. It is carried out in accordance with articles 1025 to 1034. The request may, however, be signed by the parties themselves if it comes from all parties to the mediation. The mediation protocol is attached to the request.
The judge may refuse the approval of the agreement only if the agreement is contrary to public order or if the agreement reached after a family mediation is contrary to the interests of minor children.
The registration order has the effect of a judgment within the meaning of section 1043. »
Art. 18. It is inserted in the same section under Chapter III entitled “Judicial mediation”, an article 1734, which reads as follows:
"Art. 1734. § 1er. Except before the Court of Cassation and the District Court, in any case of the proceedings and as referred to, the judge already seized of a dispute may, at the joint request of the parties or on his own initiative, but with the agreement of the parties, order a mediation, as long as the case has not been deliberated. The parties agree on the name of the mediator, who must be approved by the commission referred to in Article 1727.
By derogation from the preceding paragraph, the parties may, jointly and in a reasoned manner, request the judge to designate an unauthorised mediator. Unless the ombudsman proposed by the parties clearly fails to meet the requirements of Article 1726, the judge is entitled to this request if the parties demonstrate that no accredited ombudsman with the skills required for the purposes of mediation is available.
§ 2. The decision that orders a mediation expressly mentions the agreement of the parties, the name, quality and address of the mediator, sets the initial duration of his or her mission, without the latter being able to exceed three months, and indicates the date on which the case is handed over, which is the first useful date after the expiry of that period.
§ 3. At the latest at the hearing referred to in § 2, the parties inform the judge of the outcome of the mediation. If they have not reached an agreement, they may request a new deadline or request that the proceedings be prosecuted.
§ 4. The parties may request a mediation either in the Introductory Act or at the hearing or by a written request filed or addressed to the Registry. In the latter case, the case is fixed within fifteen days of the application.
The Clerk summons the parties by judicial fold, and, where appropriate, their counsel by simple fold. If this is a joint request from the parties, the parties and, where appropriate, their counsel are summoned by simple fold.
§ 5. When the parties jointly request that a mediation be ordered, the procedural deadlines for the mediation are suspended as of the day on which they make the request.
Where applicable, the parties or any of them may request further time limits for the status of the case at the hearing referred to in § 2 or article 1735, § 5. »
Art. 19. In the same Chapter, an article 1735 is inserted, as follows:
"Art. 1735. § 1er. Within eight days of the decision, the Registry shall send a certified copy of the judgment to the mediator under judicial fold. Within eight days, the mediator shall notify the judge and the parties of the place, day and time when he begins his mission.
§ 2. Mediation may cover all or part of the dispute.
§ 3. The judge remains seized during the mediation and may, at any time, take any action that appears necessary to him. It may also, at the request of the mediator or one of the parties, terminate the mediation before the expiry of the time limit.
§ 4. The designated mediator may, at any time of the proceedings, be replaced by another authorized mediator. The agreement shall be signed by the parties and placed on the record of the proceedings.
§ 5. The case may be brought before the judge before the day fixed by a written statement filed or addressed to the court by the parties or any of them. The cause is fixed within fifteen days of the application.
The Clerk summons the parties by judicial fold, and, where appropriate, their counsel by simple fold. If this is a joint request from the parties, the parties and their advice, if any, are summoned by simple fold. »
Art. 20. In the same Chapter, an article 1736 is inserted, as follows:
"Art. 1736. Mediation is carried out in accordance with the provisions of articles 1731 and 1732.
Upon the expiry of his mission, the mediator shall in writing inform the judge of whether or not the parties have reached an agreement.
If the mediation has given rise to the conclusion of a mediation agreement, it may be partial, the parties or one of them may, pursuant to section 1043, request the judge of the homologer.
The judge may refuse the approval of the agreement only if the agreement is contrary to public order or if the agreement reached after a family mediation is contrary to the interests of minor children.
If the mediation did not result in the conclusion of a full mediation agreement, the procedure is continued on the day fixed, without prejudice to the ability of the judge, if he considers it appropriate and with the agreement of all parties, to extend the ombudsman's mission for a period that he determines. »
Art. 21. In the same chapter, an article 1737 is inserted, as follows:
"Art. 1737. The decision ordering, extending or ending mediation is not subject to appeal. »
Art. 22. Chapter Ierbis of Part II, Book II, Part IV, of the same Code, inserted by the Act of 19 February 2001, is repealed.
Art. 23. Section 1017, paragraph 4, of the same Code, inserted by the Act of 19 February 2001, is repealed.
Art. 24. Sections 4, paragraph 2, and 11 of the Act of 19 February 2001 on mediation in family matters under judicial proceedings are repealed.
Art. 25. § 1er. The King shall determine the effective date of this Act. This Act shall be held no later than the last day of the sixth month following the publication of this Act to the Belgian Monitor.
By derogation from the previous paragraph, sections 1er11 and 25 come into force on the day the law was published in the Belgian Monitor.
§ 2. For a period of one year from the date of the coming into force of the law, mediators may receive a temporary approval of the bodies recognized by the commission referred to in Article 11.
This temporary approval replaces the approval of the commission referred to in section 11 and is valid for a period of two years from the day it is granted.
As soon as it was established, the commission recognized the bodies that could grant temporary approval. Acknowledgment may be given to the bodies that solicit it and whose commission considers that they have sufficient guarantees to accept only mediators who meet the requirements of Article 10.
Promulgation of this law, let us order that it be clothed with the seal to the State and published by the Belgian Monitor.
Given in Brussels on 21 February 2005.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Parliamentary references:
House of Representatives.
Documents: Doc 51 0327/(2003/2004). - 001: Bill by Mr. Fournaux and Mr. Giet, Ms. Milquet, Mr. Van Parys and Mr. Wathelet. - 002: Opinion of the Superior Council of Justice. - 003 to 006: Amendments. - 007: Report of Mr. A. Courtois and Mrs. L. Van Der Auwera, Members. - 008: Text adopted by the commission. - 009: Text adopted in plenary and transmitted to the Senate.
Full report: 24 June 2004.
Senate.
Documents: 3-781 - 2003/2004. - No. 1: Bill referred to by the Senate. - 3-781 - 2004/2005. - nbones 2-6: Amendments. - No. 7: Report of Mr. L. Willems, Senator. - No. 8: Text amended by the commission. - No. 9: Text amended by the Senate and referred to the House of Representatives.
Annales: December 21, 2004.
House of Representatives.
Documents: Doc 51 0327/(2003/2004). - 010: Draft amended by the Senate. - 011: Amendments. - 012: Report of Mr. A. Courtois, Deputy. - 013: Text adopted by the commission. - 014: Text adopted in plenary and subject to Royal Assent.
Full report: 3 February 2005.