Advocom, Advocaten en bemiddelaars

16/00/10

"Asking a seasoned litigator to mediate, is like asking a warrior to work in a hospital"

 

You have had a dispute with your shareholder, your co-director, your contractor, your trading partner for years, your business partner and family member, your co-owner, your physician, your subsidiary company, your controlling company, your bank,…, or anyone else you can possibly have an argument with, but you realise at the same time that this relationship is too valuable and important to let it fall into pieces on a year-long lasting lawsuit.

You realise that such lawsuit will not only be expensive, long lasting and immobile-sating, but also that a favourable judgement is never guaranteed and that your relationship will be endangered by this lawsuit.

Conflict resolution, as until recently known, only aimed at imposing through the medium of a third party (a judge or an arbitrator) one party’s rights on the other party. Furthermore, you could never guarantee that the winner would be able to claim his profit at the end of the day. What if the loser is insolvent or goes bankrupt?

Besides this classic form of conflict resolution, Advocom is also active in integrative negotiating methods and in the mediation (A.D.R. 'alternative dispute resolution') of civil and commercial cases.

Advocom also offers - besides the traditional consultancy services and conflict resolution before the courts and arbitration colleges - services provided by its acknowledged mediators in civil and commercial cases.

The acknowledged mediators of Advocom offer their services as mediators in a conflict, at the request of all parties, or to assist one party in the framework of a mediation with another party.

Mediation is a method of conflict resolution where the parties together, hereby assisted by a schooled mediator, will try to solve their dispute in a creative way. Because he will take into consideration the positions of both parties, the mediator will seek reasonable and agreeable solutions for each party, thereby creating a win-win situation. Naming a winner and a loser, assessing who made a mistake and who didn’t, enforcing one party’s rights, all elements which characterize a normal lawsuit, will in the context of the mediation become totally irrelevant and unnecessary.

Throughout the creative process of mediation, the mediator tries at best to avoid having the parties to give up their demands. He will look for those issues which have a crucial importance for each of the parties and which often have been, just because of the mere existence of the conflict, ignored by the parties.

The mediator will, together with the parties, look for their legal and non-legal positions, and try to make parties understand where these positions are the most similar, opposed or. This method will bring a broader range of possibilities to a solution, while the actual negotiation will consist of exchanging of conciliating the most and least positions of each party in order to reach the most equal possible solution for each party.

This technique of resolution has been developed as a result of a research carried out by the HARVARD UNIVERSITY in the eighties ( URY & FISCHER, "getting to yes") and is still hardly known in Belgium, unlike in the Netherlands and the Anglo-Saxon countries.

Since the Belgian law on mediation came into force in 2007 and since the setting-up of the Federal Commission of Mediation, this method of conflict resolution has become more and more used amongst companies. Entrepreneurs can obviously avoid time-consuming , money-eating, energy costing, but especially unpredictable lawsuits.

Without any doubt, mediation presents some obvious and not to be underestimated benefits:

• research shows that 70 to 80 percent of the commenced mediations end in an agreement;
• conflict resolution throughmediation is often cheaper than a lawsuit;
• mediation has exceptional quick solutions in prospect;
• mediation preserves commercial relationships which are often irreparably damaged by judicial resolution;
• mediation is strictly confidential, which is guaranteed by the professional duty of secrecy which binds the mediator;
• documents and disclosure used in a mediation will therefore not be used in a lawsuit;
• lawsuits can be held in abeyance by judicial mediation;
• an agreement that is mediated by an acknowledged mediator can within 15 days be validated by the court which gives it the same enforceability than a court ruling.

Mediation methods are very useful in case of conflict resolution concerning the management of corporations, conflicts between business partners, in family enterprises, between prime contractor and building contractor, between investors, between contractor and subcontractor, … in other words in any relationships which still have a future and which parties are not prepared to give up.

Of course parties can be assisted by a lawyer in the mediation process, who then won’t act as a professional troublemaker, but as a wise counsel which guides the party to the effective realization and preservation of its position, the search for acceptable solutions and the finalization of the achieved agreement.

A mediator, acknowledged by the Federal Commission of Mediation in civil and commercial cases, has followed a special education to guide the parties to an agreement which is for both parties as good and satisfying as possible.

In this field, Advocom has had a leading role in Limburg and has been frequently asked to give lectures, among others by employers’ associations and courts, as well as in the framework of professional training for lawyers ("Onbekend is onbemiddeld").