A conflict in the workplace can have far-reaching consequences – for the employee, for the employer and for the team or organisation. What often begins as a difference of opinion or a difficult working relationship can escalate into a strained working relationship, absenteeism due to illness and, all too often, ultimately legal proceedings.

It is precisely in the case of workplace disputes that mediation can be an effective way to break this cycle. Not because legal rights and obligations are irrelevant, but because the aim should be to find a sustainable solution – and that requires more than simply determining who is legally in the right.

What makes employment mediation different?

In legal proceedings, the legal position of the parties is central. A judge assesses the dispute and ultimately makes a decision. In mediation, the parties themselves remain in control of the solution.

Under the guidance of an independent mediator, the parties explore what is really at stake. This involves not only their stated positions, but above all the underlying interests.

In employment disputes, for example, recognition, trust, appreciation, financial security, clarity and peace of mind often prove to be at least as important as the formal legal position. By bringing these interests into the open, space is created for solutions.

First, explore whether reconciliation is possible

Employment mediation does not have to be aimed at terminating the employment contract. On the contrary, mediation can also be used to explore whether the employment relationship can be restored.

This may be relevant, for example, when communication between employer and employee has broken down, tensions have arisen within a team, or the parties have differing views on performance, collaboration or reintegration.

At the start of mediation, therefore, the outcome does not need to be predetermined. The parties can explore, in a confidential setting, what has happened, what is needed to move forward, and what solutions are conceivable.

This can lead to the restoration of cooperation and concrete agreements about the future. However, it sometimes becomes apparent during the process that continuing the employment relationship is no longer desirable or feasible for one or both parties.

Mediation in cases of illness and reintegration

Employment mediation frequently plays a role when an employment dispute is accompanied by illness or incapacity for work. An occupational health doctor may recommend mediation where a dispute is hindering reintegration or where a restoration of communication is needed to enable a return to work.

This gives rise to an interesting tension. Mediation is, in principle, voluntary, whilst at the same time the employer and employee have obligations in the context of return to work and may expect each other to act reasonably in seeking a solution.

Ignoring a recommendation for mediation without good reason is therefore not always without consequences. Furthermore, the way in which the parties have behaved towards mediation may play a role later on if the employment dispute is ultimately brought before the court.

This makes it important to assess a proposal for mediation seriously and, if necessary, to seek legal advice on the matter.

If restoring the employment relationship proves impossible: exit mediation

Sometimes, during mediation, the parties come to the conclusion that parting ways is the best solution. In such cases, the process may move on to ‘exit mediation’, as it is often called.

Even then, mediation offers significant advantages. The employer and employee can negotiate confidentially on the terms under which the employment contract will be terminated. This is not solely a matter of the amount of any compensation.

Issues such as the end date, exemption from work, annual leave, bonuses or variable remuneration, pension, non-competition and non-solicitation clauses, legal costs, a reference, communication within and outside the organisation, and the manner in which the parties part ways may also form part of the agreements.

It is precisely because the parties negotiate themselves that a bespoke solution can be achieved.

Negotiating ‘in the shadow of the law’

The fact that mediation is not about proving a legal point does not mean that employment law is completely left out of the equation.

On the contrary. A good solution can only be assessed when the parties know what their alternatives are. What happens if no agreement is reached? How strong is the legal position? What risks, costs and uncertainties does legal proceedings entail?

Mediation therefore often takes place ‘in the shadow of the law’. 

The legal position forms the framework within which the parties negotiate, without the mediation turning into a courtroom.

Legal guidance can therefore be important, particularly when discussions concern the termination of an employment contract.

The lawyer’s role changes at the mediation table

A lawyer plays a different role during mediation than in legal proceedings.

At the mediation table, the primary aim is not to convince the mediator or the other party that the client is legally in the right. After all, the mediator does not decide who is right.

The solicitor naturally safeguards the client’s legal position, but also helps to determine the scope for negotiation and to assess possible solutions. A good solicitor discusses in advance not only what might be legally achievable, but also what is truly important to the client.

Sometimes, for example, it turns out that gaining clarity quickly or the ability to move forward whilst preserving one’s reputation is more important than maximising the financial outcome.

This requires a different approach to advising and negotiating than litigation does. It also requires an awareness of the underlying relationships and the broader context.

Confidentiality creates space

A key feature of mediation is confidentiality. Parties must be able to speak freely and explore potential solutions without constantly fearing that any proposal might later be used against them.

This makes it possible to explore options without immediately making definitive concessions. Even in employment disputes, where emotions, reputation and interpersonal relationships can play a major role, this confidential setting can make all the difference.

When is employment mediation appropriate?

Mediation can be appropriate, amongst other things, when communication has broken down, a conflict is threatening to escalate, illness and a workplace dispute are intertwined, the parties wish to restore their working relationship, or, conversely, wish to part ways in a considerate manner.

The most important thing is that there is sufficient willingness on the part of the parties to actually engage in dialogue with one another and seek possible solutions.

In cases of incapacity for work where an issue in the workplace plays (at least) a part, the company doctor will often advise entering into a mediation process.

Mediation does not, of course, guarantee an agreement. If the parties cannot reach a resolution, other options – including legal proceedings – naturally remain available.

Employment law and mediation under one roof

At SPEE Advocaten & Mediation, we combine specialist knowledge of employment law with extensive experience in the field of mediation.

We facilitate employment mediations as independent mediators and also advise employers and employees who are themselves participating in mediation. These roles are, of course, strictly kept separate.

In our experience, it is precisely the combination of knowledge of employment law, insight into conflict patterns and attention to the interests underlying the legal positions that can contribute to solutions which are not only legally sound but also work in practice.

Are you facing an employment dispute and would you like to know whether mediation might be a suitable option in your situation? Please do not hesitate to contact us.

Monique Spee LLM, lawyer and MfN-registered mediator