Role of the mediator
The business mediator acts officially as an intermediary, certainly alongside the company director, but in the eyes of third parties he has an official mission with the objective of getting the company to think about mediation and long-term solutions that will work towards the company's recovery. Its role is to provide confidential support to the company's directors, thereby facilitating the reorganisation of all or part of the company's assets, debts or activities.
The mediator's mission is to bring the parties together and try to reach a legal agreement. The parties to the mediation agree who will pay the business mediator's fees. This is very often the company itself, as third parties sometimes agree to make major concessions, but not to pay the business mediator's fees. It is not uncommon for previous negotiations to have ended in a heated, conflictual or violent atmosphere. The mediator's role is to bring calm to the discussions, firmness without authoritarianism and organisation without rigidity. It is in this sense that the business mediator is appointed by the Commercial Tribunal, possibly on the proposal of the company requesting mediation.
The business proposes the mission of the business mediator to the Tribunal, which very often approves it and appoints the person proposed.
It is also the Tribunal that determines the scope and duration of the mediator's assignment. If a dispute arises, the Tribunal will arbitrate the business mediator's fees. The business mediator's remit is therefore official pursuant to articles XX.36 to XX.39 of the Code of Economic Law. It can be adapted to any situation and the company may decide that the assignment should end, even before the end of the period set by the Tribunal. There is therefore considerable flexibility. Proposal for the appointment of a business mediator When the company does not know any mediators, associations active in Brussels represent and propose experts approved as business mediators (e.g. Bmediation or Belgian Senior Consultants).
Under the system set up by the Brussels-Capital Region, where part of the business mediator's fees are paid by the public authorities, it may be very useful to ask the Tribunal to appoint two mediators: a chartered accountant, who will diagnose the causes and circumstances of the company's difficulties and present a sound financial recovery plan, including cash flow projections; - a lawyer, who will analyse current contracts with third parties concerned by the mediation, including employees, and draft out-of-court agreements to be submitted, once signed, for approval by the company's Tribunal.
Differences with other mediators
There are also common law mediators covered by articles 1724 to 1737 of the Judicial Code. They are appointed by the Tribunal to carry out other tasks, but are not business mediators in the sense that they do not assist the company with reorganisation.
These traditional mediators are not covered by the Brussels-Capital Region Government's measure, but they can sometimes be a significant alternative. Whatever his title, the mediator's mission is to facilitate the reorganisation of the company and to reach agreements with two or more of the company's debtors or creditors, in order to unblock the situation and enable the company to make a healthy start.
Examples of business mediation
For example, the business mediator will negotiate with the NSSO, which grants out-of-court payment plans lasting up to 24 months for the settlement of all contributions and sums due for the year 2020. The employee will try to obtain a longer period by presenting a solid case together with a cash-flow plan. The objective of mediation may also be to close the company cleanly, without JRP or bankruptcy.
The FPS Finance is also granting support measures until 31 December 2021, such as the exemption of compensation awarded by the regions, communities, provinces or communes following the pandemic. Business mediation is supported by the Brussels-Capital Region and the fees of the business mediator appointed by the Commercial Tribunal are included in the aid granted by the Brussels Regional Government.
