How about helping the parties to reach an agreement?

Interview published in HTag by Références, July 2024

Who ever decided that our legal system should be based on a third party taking the decision in place of the disputing parties? The question is worth asking in view of the results that mediation can achieve, including in a variety of employment law disputes.

Interview by Christophe Lo Giudice

Mediation received its first impetus in Belgium some twenty years ago, but at the time there was no real enthusiasm for it, either among lawyers or the courts - with the exception of family mediation. In employment law, the first reflex remains the court,’ notes Olivier Rijckaert. But for certain types of case, if the lawyers are looking for a quick and effective solution to the dispute, they will do more to encourage recourse to mediation. In 75% of cases, mediation leads to a solution and, above all, a solution that is acceptable to both parties, since it is constructed by them’. According to him, a substantial proportion of employment law disputes lend themselves to this. ‘We're thinking of cases involving discrimination, unreasonable dismissal, psychosocial burdens or harassment: issues where the human factor largely takes precedence over the financial aspects. Very often, complainants are not asking for money so much as to be listened to, recognised and respected’. What's more, when legal action is taken, the decision is usually taken two or three years after the fact, which is too late. Mediation makes it possible to act quickly, when a genuine substantive solution is still possible’.

A popular approach

Mediation is particularly well suited to situations of emotional tension,’ says Maureen Degueldre. It's in the employer's interest to use it as soon as they see that an interpersonal conflict is escalating, and to do so before it gets out of hand. The approach is often appreciated by workers, who see that the employer is taking the problem seriously and tackling it head-on’.

Isn't mediation counter-intuitive for lawyers? It's more a question of a state of mind,’ says Olivier Rijckaert. It doesn't matter whether you're a lawyer or in another profession, as long as you've been trained in mediation. As mediators, we never use legal tools. We have to deprogram ourselves, take off our lawyer's hat. One of the special features of the process is that the mediator does not look for the solution himself: it is the parties themselves who are led to create it. The mediator guides them towards the goal of re-establishing dialogue between them through a series of techniques - empathy, active listening, reformulation and non-violent communication’.

Several commitments

What are the ingredients in the recipe? First of all,’ observes Maureen Degueldre, ’the parties must be willing and able to agree to mediation. They must then appoint a mediator, taking care to avoid any conflict of interest. The mediator schedules an initial meeting to explain the process. The mediator and the parties then sign a mediation protocol that includes a number of commitments, including the essential obligation of confidentiality. The mediation then begins in earnest. It generally comprises three to six sessions, with varying degrees of turbulence. The agreements that are reached often contain original aspects that go beyond purely financial issues: recognition of the work done, a commitment not to denigrate the parties, and a commitment to respect the confidentiality. ‘All those things that are important, even crucial to the real resolution of the dispute, that a court can never “order”,’ concludes Olivier Rijckaert.