To what extent is labor mediation enforceable? – Eva Schutte and Jacqueline Spierdijk

To what extent is labor mediation enforceable?

The voluntary participation of parties in mediation is considered a core element of mediation. However, individuals may still feel compelled to cooperate. In labor cases, the court often reprimands both employers and employees if they have not made a serious attempt to resolve their labor dispute through mediation. This was the case in a recent ruling by the Court of Appeals in The Hague.

In that case, the court ruled that the lower court correctly terminated the employment contract of an incapacitated employee because she had acted seriously blameworthy by not cooperating with her reintegration. The employee had repeatedly missed appointments with the company doctor and was frequently unreachable for the employer. When the company doctor recommended mediation, the employee expressed a lack of interest in mediation due to a previous bad experience and because she  already had several meetings with the employer. The court stated: “Engaging in discussions to bridge differences and participating in mediation can also be part of the reintegration obligations. If an employee refuses to fulfill their reintegration obligation, the employer can, after issuing a warning, suspend their pay. In case of persistent refusal, the employer can request the court to terminate the employment contract.”

The series of rulings in this context indicates that cooperation in labor mediation can often be practically compelled. However, does this mean that participation in labor mediation can also be legally enforced? Two recent rulings suggest that the core element of voluntariness stands in the way of this.

What can be done, as was the case in the conflict that led to the aforementioned ruling by the Court of Appeals in The Hague, is that one of the parties in a legal proceeding argues that the other party has not made sufficient efforts to restore the employment relationship. In such cases, an attorney would advise their client to cooperate in mediation if it is proposed by the other party (employer or employee). If mediation fails, it can be argued in court usually initiated by the employer, that everything has been tried to restore the employment relationship but it is no longer possible, justifying the request for termination of the employment relationship.

The risk with this approach is that mediation may be used as a checkbox in the legal process. If mediation fails because one of the parties completely lacks commitment, the mediator cannot report this due to the confidentiality agreement. The mediator’s termination message must remain completely neutral.

If a mediator notices that one of the parties lacks commitment before or during mediation, they will need to use their mediation techniques to encourage that party to actively participate in the mediation. Experience shows that even that party often has an interest in reaching a solution through mediation. For example, the desired departure of the employee by the employer could lead to dissatisfaction within the employee’s team, and a jointly agreed-upon solution could be helpful in restoring peace.

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