A new tool in the ADR arsenal: collaborative negotiations

Alternative methods for resolving disputes (i.e. outside of the courts) have been receiving increasing attention in recent years. Although for a long time the Belgian legal world had its reservations about ADR (Alternative Dispute Resolution), it appears that the tide is now turning. There is a growing understanding that a dispute must firstly be regarded from a solution-oriented perspective.  

The government Michel I and Minister of Justice K. Geens are also making a contribution in this framework by lending their support to a number of initiatives. That alternative dispute resolution also offers a way to reduce the pressure on overburdened courts is undoubtedly a welcome added benefit.

Besides the further promotion of mediation, with the announcement of a new mediation law one also wants to facilitate so-called "collaborative negotiations" as an additional possible method for resolving disputes.

This is a structured, voluntary and confidential method of negotiating where specifically trained lawyers closely accompany their clients during the negotiation process, in order to work towards a resolution for the dispute.

Naturally, it’s already a part of a lawyer´s normal job responsibilities to assist his client and give advice in negotiations. However, collaborative negotiations are more far-reaching. The objective is expressly not only to divide up the cake, but also to make it bigger (as in mediation), by watching out for the interests of all parties. If the negotiations lead to an agreement, then this agreement - just as with mediation - can be approved by the court.

In contrast to mediation, a third-party mediator does not have to be present: in principle, the process is steered in the right direction by the lawyers of the parties. These lawyers do not have to act neutrally like a mediator: they can always give advice to their clients. Nevertheless, the lawyer doesn’t participate in the collaborative negotiation without any obligations. If the negotiation doesn’t succeed, the lawyers involved must withdraw and they can no longer assist their clients in a possible later judicial proceeding. In this way, the confidentiality of the negotiations is guaranteed.

We are now waiting to see how this new concept will be further elaborated in legislative texts. We´ll keep you informed.

For more information about this subject, you can consult Nel Van Daele and Geert De Buyzer (the authors).