Mediation is an informal, but structured settlement procedure in conflicts or in situations where there is a reasonable chance of a dispute, whereby a neutral expert, the lawyer-mediator, guides the negotiations between the parties in order to reach a joint solution based on both their interests.
Going through a mediation procedure is mandatory since 01.01.2018 for all claims arising from labor matters, with the exception of claims caused by an accident at work or an occupational disease. In other words, the plaintiff cannot take his claim to the court earlier, as long as he has not followed a mediation procedure.
The scope of mediation in employment disputes
All types of claims arising from disputes between the employee and the employer, which relationship arises from the law or individual or collective bargaining, are the subject of mandatory mediation. Just think of: unpaid transition payments, compensation for workplace bullying, unpaid overtime or because of unfounded dismissal. The determination of an employment relationship with the employer or a request to reassign the employee also falls within the scope of the mandatory mediation. However, the exception to the rule is that work-related claims for damages or the claims resulting from an accident at work or from an occupational disease and / or recourse claims are not subject to compulsory mediation.
The role of the mediator
The mediation process is confidential. Negotiations during this process cannot be made public without the consent of the parties. Negotiations and negotiating evidence cannot be used as evidence in court unless otherwise agreed. The mediator cannot be summoned or heard as a witness.
The process remains voluntary from begin to the end. It is possible to end the process if one of the parties wishes to end the negotiations during the mediation. A final report is drawn up for termination. The mediator acts as an impartial and independent observer at the meetings and will not pressure or judge the parties.
What does the mediation procedure look like
The employee concerned can choose any mediator personally or through the intervention of his lawyer, or apply to a mediation center where an independent mediator is assigned. The mediator must be specialized in labor-related matters.
The chosen or assigned mediator ensures that the request for mediation is transmitted to the opposing party, usually the employer, and invites both parties for a first meeting. This meeting can be realized over the phone or even online. The contact details of the parties are provided by the mediation office to the appointed mediator. The chosen mediator obtains the information from the person concerned or conducts his own research.
The parties are normally free to decide whether or not to participate in the first mediation meeting scheduled by the mediator. However, there are a number of financial consequences of not wanting to participate in the mandatory mediation meetings .
As a rule, whoever has refused to participate in the first mediation meeting with no valid reason will ultimately be sentenced to regular court costs regardless of whether that case is decided in his favor or not. If both parties fail to attend the meeting, they will ultimately bear their own legal costs.
Duration of mediation
The mediator will complete the application within 3 weeks after the date of the assignment. In mandatory cases, this term can be extended by a maximum of one week by the mediator.
When will the mediation procedure be ended?
The mediation procedure will end if the parties;
◦ cannot be contacted,
◦ not participating in the proposed meetings,
◦ have reached an amicable settlement,
◦ have not reached an amicable settlement.
The mediator makes a written report of the termination by means of a closing report. If the parties reach a settlement, a mediation agreement will also be drawn up and signed. If the parties have not reached a settlement, the requesting party can still proceed to regular dispute resolution on the basis of the final report.
Agreement between the parties
In the event that the parties reach an amicable settlement, the mediator will draw up an mediation agreement, which will be signed by all parties, including the mediator. This mediation deed has no enforceable title. If one of the parties does not fulfill this agreements, the other party can obtain a declaration of enforceability from the court based on the mediation agreement, prior to a debt collection procedure.
In case of no agreement
If no agreement is reached, the employee can use the mediator's final report to initiate a court case against the employer. The final report is a procedural condition for bringing an labor dispute to court.
The limitation period for monetary claims is 5 years. The limitation period for a request to reassign the employee to the workplace is 2 weeks, after termination of the contract. The information, documents and files of the mediator are confidential. This information cannot be used in a court case unless otherwise agreed.
Mediation costs
In the event of no agreement, the mediation fee will be reimbursed from the budget of the Ministry of Justice. The statutory mediation rates are decisive in this.
If the parties reach agreement through mediation, the mediator's fee, which is determined based on the agreed amount, will be divided equally unless the parties agree otherwise.
Advantages of mediation
Mediation is an alternative way of dispute solving that is worth trying. Because the low threshold and ease of negotiating immediately ensures that disputes in a mediation procedure, whether voluntary or compulsory, are resolved at lower costs and in a short term. Moreover, unlike the regular legal system, mediation offers a peaceful solution. Ultimately, it is more satisfying for both parties in short term.
Feel free to contact us if you have any labor-related problems or questions about mediation. There are more solutions than you think. We like to think along with you.
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