Within employment law, mediation is a well-known intervention tool in conflicts and during illness. The mediation process has a number of characteristics such as voluntariness, confidentiality and impartiality. In labor conflicts, the question of whether voluntariness exists often arises. Voluntariness means that the parties agree to let the mediator guide them through the mediation process and that either party can terminate participation in the process if any party is no longer interested in mediation. This can also be called commitment, i.e., the parties must feel bound to reach a solution together in mediation.
The parties themselves can start mediation ad hoc. However, in employment law, mediation is often started on the advice of the company doctor or may be recommended by a judge. In such a case, the question can be asked whether there is commitment on the part of the parties, and if there is none, and mediation is not started, to what extent the noncooperation has an impact on a possible request for dissolution or the awarding of reasonable compensation. This question is particularly relevant because one of the core values of mediation is voluntariness. However, based on the standard of good employer, and good employeeship and the obligation to cooperate with reintegration obligations, there is an actual obligation to cooperate in mediation. Whether or not there is cooperation in mediation is taken into account by judges in their judgment. Based on case law, the following rules have been drawn up (also called the "Pel-vuistregels"):
- If, after unsuccessful mediation, one of the parties turns to the (subdistrict) court with a request to dissolve the employment contract, this request will be granted.
- An employer that refuses to accept a proposal for mediation or to attach conditions to it in advance, risks — if it is subsequently decided to terminate the contract — higher compensation on that ground.
- An employee who refuses to accept a proposal for mediation, risks — if it comes to that — termination of the employment contract and lower compensation.
- An employee who stalls over mediation or sets conditions for mediation risks losing their salary.
- An employer that obstructs mediation or sets conditions for mediation risks having to pay wages in a situation in which an employee does not perform work.
On the one hand, subdistrict courts dissolve employment relationships despite the absence of a disturbed working relationship, for example on the i-ground (a mix of reasons), taking into account whether the parties have invested in restoring trust through mediation.
It is also common for employees to call in sick when there is a conflict. If the parties subsequently fail to reach an agreement on settlement and the company doctor advises the parties to engage in talks with an independent third party, it is wise to do so. For example, the North Holland District Court ruled that an employer had to pay reasonable compensation of EUR 75,000 gross on top of the transition payment because it refused to initiate mediation even though the employee was willing to do so. In this situation, this amounted to approximately seven months' salary, whereas the transition payment was 1.5 months' salary.
On the other hand, employees cannot refuse mediation without consequence. The fourth rule above is confirmed in a judgment of the Rotterdam subdistrict court. The parties had a labor dispute. The employee reported sick and the company doctor subsequently advised the parties to start mediation. After a mediator was selected, the employee indicated that she was unable to start mediation due to her physical symptoms. The subdistrict court ruled that the employer was entitled to stop paying the salary as the employee could not demonstrate that she was unable to participate in mediation.
Based on case law, the legal standard of good employer and employee, and the obligation to cooperate with reintegration obligations, it can be concluded that not cooperating in mediation, showing initiative and showing willingness to mediate has consequences for parties in a conflict situation.
Mediation can, therefore, also be used strategically. This could have the effect that voluntariness and commitment are pushed into the background. In most cases, this will, however, not be an issue for a mediator. After all, a mediator notices quickly enough whether there is commitment and can, by means of interventions and questions, bring about a solution in a mediation where there is no commitment at the start.