Mediation

It is you only who determines what  happens in mediation. No one decides for you, tells you what to do or imposes the solution upon you. Its very different from being judged in court or arbitration or expert determination or even negotiation. No other form of dispute resolution gives you so much choice. You listen to yourself and what you really need, you listen to them and what they really need and the mediator guides you, challenges you, helps you, encourages and empowers you to find the solution. Because parties choose the outcome that works, it usually does, and well.

Mediation, unilateral representation or a legal counsel? You are wondering what would be best for you. Coming to an agreement together is the best way of dealing with a labour dispute or dismissal. This initiative to come to a solution will afford the best chance of a balanced and optimal result at lowest cost. The substantial interests and emotions involved make intervention by an experienced third party an intelligent choice.

Both ‘mediation’ and ‘unilateral representation’ have become increasingly popular over the years due to the surprisingly effective and good results. Otherwise, this also applies in the case of a legal battle, you will be confronted by an escalation resulting in a costly and often ‘bloody’ battle that you would rather avoid. Mediation or unilateral representation prevent the often difficult, costly and risky procedures. It would be best to initially seek the help of an experienced third party to come to a good understanding together and to reach an agreement. It is also often advisable for both employers as well as employees to suggest timely external intervention by experts if the discussions are in danger of reaching a deadlock or have reached a deadlock and the balance of the relationship is in danger of being upset. After all, a conflict, or potential conflict, starts once the interests differ to such an extent that the differences appear insurmountable.

Employees usually choose the unilateral representation method because being the representative’s only client makes them feel good. Mediation, on the other hand, has a bilateral assignment basis by employee and employer and has practically the same advantages. Both methods will assure you of expert assistance, also in the field of labour law and its application to your situation. On top of this mediation offers employees security in their awkward position. In both cases, your mediation initiative will be positively assessed by case law: you have, after all, attempted to prevent an escalation by your willingness to find a solution together.

Employers usually use mediation as this method is more effective than the legal approach. The effectiveness, the directness of the procedure, the control of the process and the strict regulation and predictable results make the difference. A meticulous course and balanced results, also with regard to legal aspects, is guaranteed for both parties on an impartial basis. Mediation has, in any case, significant cost advantages as the high costs of an escalation or legal escalation are avoided.

On average, 93 % of the mediation cases performed by Surplus are successful. Surplus mediators are qualified by and registered as ‘Registermediator’ with the MfN (Mediators Federation Netherlands).

Resigning oneself, discussion/negotiation or litigation

In our view and experience a dispute is always the worst choice. A dispute should be your last option. The ‘battle field’ is , after all, always ‘bloody’ and ‘expensive’, even if you win the dispute. The risk of losing is also the biggest and is dependent on the fighting spirit of your opponent.

Do not carry out your own negotiations

This is rarely successful due to the interests at stake, the emotions, subjectivity and the lack of necessary expertise.

Strategy

Your advisor will give you some understanding of the situation and will determine the correct strategy and approach for you. It is our experience that negotiation gives the best results. After all, the employer and employee are both interested in a solution resulting from good discussions, even when they oppose each other. An open dialogue means maintaining control of the possibilities created by your negotiation. You stay in control.

Legal counsel

Due to your emotional perception and lack of experience you will be inclined to look for a sense of security, i.e. your rights. This will usually fairly quickly bring to mind the idea of calling in the help of a lawyer or legal counsel. This obvious choice is the greatest pitfall. It is quite easy to identify your rights. The proceedings are known. By calling in a lawyer too soon matters immediately become a legal matter, i.e. black and white and polarized. Before you know it you will find yourself in a legal yes/no battle. In such circumstances, openings for negotiation are, from the start, out of the question. The unwanted but inevitable result will be that you end up in court. It is no longer about you or your problem but a matter of winning or losing ‘the case’. A technocratic weighing of the rights and obligations.

Negotiator

Calling in the help of an experienced negotiator whom you trust will bring the matter to the desired result. The employer is often only interested in the costs and proceeds while the employee wants justice and prospects. The negotiator is specialized in obtaining a balanced result. Experience has shown that this is the best way to guarantee this result. Instead of investing a lot in ‘bracing oneself’ for a legal conflict, the investment becomes ‘available’ to work towards a future freely chosen. This could be a continuation of employment if it is not expected that this would strengthen the conflict and thereby merely postponing the execution. Termination of the employment contract is often the best choice and then it is a matter of negotiating the best terms and conditions.

There are basically two different ways of negotiating:

1. unilateral representation
2. mediation

Unilateral representation

S/he is in fact the negotiator on your behalf. The difference lies in the assignment itself. Unilateral representation is one-sided. This has the determining advantage for the employee that the negotiator first of all eliminates the difference in power and the political tension in the existing relationship. This restores the respect and thereby also the willingness to listen during the discussions and negotiations. An evenly matched negotiation is started. In consultation with his/her negotiator, the employee himself/herself decides where compromises or concessions can be made. Discussions are held and arguments are put forward to come to a mutual understanding. Bargaining is avoided. Experience has taught us that unilateral representation leads to the best results for employees.

Mediation

Mediation is a process in which the mediator receives a bilateral assignment. S/he is then the neutral third party chairman who steers the negotiations in such a way that the parties come to a solution together. S/he counsels the parties in their communication in reaching a mutual understanding and responsibility to the issue as a whole and to a mutually attained solution. Mediation is based on strictly putting into practice the regulations and code of conduct of the professional organization of the MfN (Mediators federation Netherlands). Mediation sets the conditions, and thereby safeguarding confidentiality, to obtain a mutually agreed upon result. We believe this is the process for employers wishing to prevent a legal conflict.

No result

Should neither unilateral representation nor mediation lead to a result this is not insignificant for a possible follow-on legal proceeding. A judge will, in this case, look for possible culpability by the employer or employee in hindering a balanced outcome of the negotiation results. This often has important substantive effects on the verdict of the judge regarding the case.