Accredited mediator
Member of the Special Construction Commission at the CFM
Board Member of the Belgian Construction Law Association
Mediation is, above all, a forum for dialogue, designed to help parties transcend their conflict and build a mutually acceptable solution. It rests on a simple yet demanding principle: the genuine willingness of the parties to reach an agreement. That willingness is expressed through good faith — an essential element that ensures the integrity of exchanges and the sincerity of the process. Without it, mediation loses its very purpose and becomes an artificial exercise devoid of meaning.
Bad faith is the most significant obstacle to mediation. It rarely appears in an obvious form. More often, it manifests itself in a subtle manner: systematic challenges, repeated shifts in position, refusal to produce documents, or an attitude aimed at gathering information rather than seeking resolution. Such opportunistic conduct diverts mediation from its intended purpose and turns it into a strategic tool, undermining trust and efficiency.
It is crucial to recall that mediation is a voluntary process. Each party is free to participate in and may withdraw at any time. However, choosing to remain in mediation implies a commitment to engage sincerely and constructively. This prerogative also extends to the mediator, who bears an ethical duty to safeguard the quality and integrity of the process. While good faith is not explicitly mentioned in Article 11, §2 of the deontological code, it is clearly reflected in several of the listed criteria - such as misuse of the process, incompatible behavior, or the absence of any legitimate purpose. When the necessary conditions—chief among them good faith—are no longer present, the mediator may terminate the mediation. Before taking such a step, however, the mediator can – and should – remind the concerned party or parties of the need to behave appropriately and uphold the spirit of the mediation process. Continuing under such circumstances would compromise neutrality and undermine the credibility of the mechanism.
Similarly, the use of caucuses—private sessions with one party—may clarify intentions and refocus dialogue. However, when bad faith persists, the only course consistent with professional ethics and the mediator’s mandate is to bring the process to an end.
The presence of legal counsel can help structure discussions and limit opportunistic behavior. Legal counsels prepare clients to adopt a collaborative mindset and reduce adversarial attitudes. During mediation sessions, lawyers can ensure transparency and discourage tactics such as withholding information. Their presence helps to build trust and keeps negotiations focused on fair, workable solutions.
As a mediator, I encountered a case that illustrates these challenges: a dispute between two construction companies, partners in a joint venture, concerning final account settlements. At first glance, mediation seemed to be a viable option. In reality, it was undermined from the outset by several factors: cultural differences (Wallonia vs. Flanders), language barriers (French/Dutch), absence of legal counsel, and informational asymmetry between representatives. These obstacles were not insurmountable, but the decisive factor that torpedoed the mediation process was one party’s bad faith. That party systematically contested decisions made during the project, demanded proof without ever producing documents itself, and repeatedly shifted its position, forcing the other party to produce extensive documentation to refute each new position. The objective was not negotiation, but information gathering.
Once I identified this behavior, I had to terminate the mediation. Continuing would have risked unnecessary delays, increased costs, and further escalation, while potentially obstructing the opportunity to resolve the dispute through judicial proceedings. Confidentiality rules protect the information exchanged, yet it would be naïve to assume that the party acting in bad faith gained no advantage. This reality underscores the importance of vigilance and swift intervention by the mediator.
Mediation can transform conflict into opportunity, but it rests on an intangible yet fragile foundation: the good faith of the participants. Without it, the process becomes not only futile but potentially harmful. The mediator must remain alert and act decisively to preserve the integrity of the procedure. For in mediation, one principle stands firm: when trust collapses, mediation disappears.