Who ever decided that our judicial system should be based on a third party making decisions on behalf of the parties in conflict? The question is worth asking in light of the results that mediation can achieve, including in a variety of labor law disputes.
An interview with Olivier Rijckaert and Maureen Degueldre on the importance of mediation in the world of work
Mediation first emerged in Belgium about twenty years ago, without generating any real enthusiasm at the time, either from lawyers or from the courts - except for family mediation. "In employment law, the first reflex remains the court notes Olivier Rijckaert. But, for certain types of cases, if lawyers have in mind a rapid and effective solution to the dispute, they will encourage more recourse to mediation. In 75% of cases, it actually results in a solution and, above all, a solution that suits both parties since it is constructed by them." According to him, a substantial proportion of disputes in employment law lend themselves to it." We think of cases of discrimination, unreasonable dismissal, psychosocial burden or harassment: issues where the human aspect largely takes precedence over the financial aspects. Very often, the complainants are not asking for money so much as to be listened to, recognized and respected . In addition, when legal proceedings are initiated, the decision is generally made two to three years after the facts, that is to say too late. Mediation allows us to act quickly, when a real substantive solution is still possible."
Approach appreciated
"Mediation is particularly suited to situations of emotional tension," says Maureen Degueldre." The employer has every interest in using it as soon as they see that an interpersonal conflict is escalating and before it degenerates. The approach is often appreciated by employees who see that the employer is taking the problem seriously and tackling it head on." Isn't practicing mediation counterintuitive for lawyers? " It's more a state of mind," says Olivier Rijckaert . "Being a lawyer or practicing another profession has no impact, as long as you are trained in mediation. As mediators, we never use legal tools. We have to deprogram ourselves, take off our lawyer hat. One of the particularities of the process is that the mediator does not seek the solution himself: it is the parties who are led to create it. The mediator guides them towards this objective of re-establishing dialogue between them through a series of techniques - empathy, active listening, reformulation or even non-violent communication.
Several commitments
What are the ingredients of the recipe?" First, the parties must be willing and agree to resort to mediation," observes Maureen Degueldre. They must then appoint a mediator, taking care to avoid any conflict of interest. The mediator plans an initial meeting to explain the process. The mediator and the parties then sign a mediation protocol that includes several commitments, including the essential obligation of confidentiality. Then, the mediation itself begins. It generally includes three to six sessions, more or less accompanied by some turmoil." The agreements that are reached often contain original aspects, aside from purely financial questions: recognition of the work accomplished, commitment of non-denigration, etc." All these important things, even crucial for the real solution of the dispute, that a court can never order" concludes Olivier Rijckaert.
Interview by Christophe Lo Giudice