On 19 October 2017 the TMD editorial board organised a workshop fully devoted to the (ir)relevance of best practices in mediation. The workshop, which took place in Brussels in the framework of the Belgian annual Mediation Week, was chaired by Annie de Roo and Herman Verbist who addressed the invited workshop speakers with various questions, starting with the basic, but fundamental question: ‘Is there a need for best practices in mediation?’ Followed by the question: ‘Is there a practice of mediation best practices in Belgium and the Netherlands, and if so, by whom, what are these best practices drawn up? Another question focussed on the possible link between best practices and mediation rules. Judith Simon-Emaus, director of the Mediator Federation Netherlands bureau, pointed out how best practices can contribute to furtherance of the mediator profession, which is also emphasised in her contribution ‘The MfN-register: a quality mark partly due to best practices’. Christine Jacobs, accredited mediator to the Belgian Federal Mediation Committee, approached the theme out of the perspective of the parties. She emphasised that it is essential that the mediator always takes the needs of the parties in dispute as the starting point for how to proceed in mediation. In other words, there is no such thing as a best mediation practice. She returns to this viewpoint in her contribution ‘Best prac­tices in Vlaanderen?’ A more radical stance was taken by Helena De Backer, accredited mediator to inter alia the Belgian Federal Mediation Committee and the International Mediation Institute. She is of the opinion that if mediation (profession) has a statutory basis, there is no need for best practices. Marc Simon Thomas, stresses that the purpose of introducing best prac­tices must be clear. Thus what purpose and who are served by best mediation prac­tices? In his contribution ‘The purpose and necessity of best practices in mediation based on the findings of the study ‘Peer Review and MfN accredited Mediators’ this is further reflected upon.

On 16 October 2017 the Ghent Court of Appeal, the Court of First Instance East Flanders, House of Justice Ghent, Centre for Welfare Work East Flanders, House of Mediation, Mediationlink, Mediation-at-Work.be organised a paneldiscussion titled ‘Mediation: only for the happy few?’ as part of the Belgian FBC Mediation Week 2017. Central in the discussion was how and to what extent the access to mediation inside and outside the courts in Belgium can be improved. This question was addressed by the seven members of the panel, representing the various stakeholders involved in mediation. A view that was shared by all was that from a very early age human beings should be educated in how to deal with disputes.

This article provides a preliminary analysis of the 622 responses to a questionnaire conducted in the context of Maryam Salehijam’s PhD research which focuses on commercial parties’ agreement to mediate/conciliate. The questionnaire targeted ADR professionals and experts with experience in drafting, inserting, or enforcing dispute resolution clauses that provide for non-binding ADR mechanisms. Some of the key findings include that it is still not very common for commercial contracts to conclude agreements to mediate/conciliate. This begs the question of why the parties and/or their legal advisors do not conclude such agreements as regularly as agreements to arbitrate. Moreover, the questionnaire confirmed that there is widespread practice in contract drafting to copy and paste dispute resolution clauses. This practice is shocking in light of the rising number of cases in which the parties dis­agree regarding the binding nature of their dispute resolution clause.

In this article authors discuss (possible) legal means and methods aimed at making mediation clauses effective and/or enforceable. In particular Belgian and Dutch law are examined. In part attention is also paid to English, French and Italian law. Against the background of recent EU-legislation the validity of mediation clauses is discussed as well, with a focus on consumer related disputes. By reviewing US case law with regard to the duty to participate in good faith in the mediation process, the authors also outline the limits of this concept for the effectiveness of mediation clauses. The central theme of the enforceability of mediation clauses has been looked at both from a procedural as from a financial angle. Substantial differences can be noted between the Belgian and the Dutch approach towards what courts should do when dealing with a dispute in which parties have previously agreed to mediation. Belgian law provides in art. 1725 § 2 Judicial Code that the court, if so requested by the defendant, is in principle obliged to suspend the examination of the case until the mediation has taken place. According to current case law, the situation in the Netherlands is that mediation clauses are in principle not enforceable (Supreme Court 2006). Following the most recent legislative proposal regarding mediation (July 2016) the court should examine whether mediation can still have an added value in case one party refuses to take part in a mediation as provided for in a clause invoked by the other party, prior to (possibly) proposing mediation. Based on the plans repeatedly announced by the Belgian Minister of Justice, it is likely that there will soon be an amendment to the mediation provisions in the Judicial Code that will allow courts to ‘force’ mediation upon the parties, even in the absence of a mediation clause. If this becomes the rule, judges would be well advised to exercise this power with due care. In the authors’ opinion the Dutch approach (as suggested in the most recent legislative proposal) in connection with mediation clauses, consisting in having the court examine whether mediation may (still) have an added value for the parties, could serve as a good guideline for the Belgian judges to use.

Dispute Boards are an alternative ‘real time’ method to avoid disputes. If no settlement can be reached the board will issue a decision which is contractually binding for all parties involved. This way costly arbitrations or court procedures, which generally only start at the end of projects with negative effects for both employer and contractor, are avoided. DBs are especially suited for construction sites and longterm contracts. They have a positive effect on the total cost of the project and avoid delays in the handing over at the end of the project. FIDIC, ICC are already using a special DB-article in their general contract conditions. The Worldbank, JICA, the EIB and MDBs are also using this method when financing international investment projects. Setting up a DB with three members right from the start of a project seldom costs more than 1% of the contract price of the project.