Employment mediation when work relations collide

Clashing interests

Wherever an employment relationship is at stake and parties are unable or unwilling to cooperate with each other, there is a labour dispute. It happens when the relationship between an employer and employee has become dysfunctional, a supervisor constantly clashes with one or more employees, colleagues continuosly make each other feel bad or members of the same partnership can no longer get along together anymore. Mutual problems and irritations can then affect the functioning of people, departments and even entire organisations and cause rising absenteeism and burnouts. It is neither good nor fun for any of the parties involved. If labour conflicts have been going on for some time, escalate further and the parties cannot resolve the matter, mediation can help. The initiative for this can come from employers, employees themselves and from company doctors or occupational health and safety services that identify the conflict.

Numerous causes

Labour disputes come in many shapes and sizes and have a broad variety of causes. They range from disputes over tasks and responsibilities, disagreements about working conditions or working conditions and dysfunction to clashing characters, lack of appreciation, bullying and discrimination. Labour disputes can revolve around both individual and groups of employees. When working relationships are disturbed, people can become ill or report sick because they no longer feel able to carry out their work, a situation that is referred to as ‘situational disability’. As a rule, the duration of incapacity for work increases the more labour relations escalate.

Shared resonsibility

In most countries, employer must make every effort to get an employee who has called in sick back to work. In the Netherlands, the Gatekeeper Improvement Act (in Dutch, Wet Verbetering Poortwachter) plays a central role in this process. The employer and employee draw up a Plan of Action together to ensure that the employee can reintegrate in an appropriate manner at the old workplace, elswhere within the company or possibly with another employer. In joint consultation, parties can also adjust the employee’s ange of tasks, improve working conditions or select additional training courses. The employee must also make the best effort to return to employment. In the Netherlands, the governmental Employee Insurance Agency (in Dutch, Uitvoeringsinstituut Werknemersverzekeringen) act as a gatekeeper and at regular intervals checks whether both parties make sufficient efforts and, if not so, can impose wage sanctions to employers or reduce the right of employees to future benefits.

Support by mediation

If mutual relations are so disturbed that the parties involved fail in properly tackling their labour conflict together, employee mediation can help them to succeed in doing so. Hiring an employment mediator is often part of the advice issued by a company doctor or occupational health and safety service (in the Netherlands this is part of the mandatory Problem Analysis that must take place in the first 6 weeks of each sick report). Many employers, by the way, engage a mediator in an earlier stage, sometimes at the request of an employee, to reduce the personal and financial consequences of labour disputes as much and as quickly as possible. In most cases, the employer is also the formal client who pays the mediator’s invoice, although the costs can incidentally be divided differently in consultation. Note that who pays is not the piper who calls the tune in mediation: an employtment mediator plays an independent role and, in accordance with the principles of mediation, explicitly does not report substantively to the client, personnel department, company doctor or occupational health service.

From start to finish

The objective of employment mediation is to restore mutual dialogue to jointly create the best solution for all parties. Usually, the mediator first conducts individual intake interviews with all those directly involved in order to gain insight into the labor dispute and invite the right parties to the mediation table. In consultation, the mediator then draws up a Mediation Agreement, which all parties sign before the mediation talks start. Mediation can play a role in fully restoring an employment relationship, making agreements about reintegration, whether or not via temporary secondment elsewhere, or separating in (good) consultation. As with any mediation, voluntariness and confidentiality play an important role while the parties are not bound by what they promise during mediation until they sign a final Settlement Agreement together. If necessary, the parties involved first submit this agreement to their legal adviser(s). In those cases where employment mediation is unsuccessful, the mediator reports this only in neutral terms to the client and company doctor.

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