Mediation in Labour Disputes in Europe: Basic Principles and Regulatory Framework

1. Mediation in Labour Disputes in Europe: Basic Principles and Regulatory Framework Dr Rimantas Simaitis CEPEJ mediation expert Ankara, 11 May 2016

2. Labour mediation: general remarks • Labour mediation – milestone of modern mediation development • General principles and standards of civil mediation apply • Internal or external mediators • Mediation can form a part of a Dispute resolution system in a workplace

3. Types of labour mediation • Individual labour disputes • Collective labour disputes

4. Labour disputes: some distinguishing features • Continuing business-like relationship, combining interests, and good psychological microclimate – premises of success in efficient labour relations • Prevention of conflicts and swift resolution of disagreements – essential elements • Significance of good-will and reputation • Hierarchy and imbalance of parties’ powers

5. International labour treaties and mediation (1) • ILO LabourRelations (PublicService) Convention, 1978 (No. 151) Art. 8 “The settlement of disputes arising in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved.”

6. International labour treaties and mediation (2) • ILO Collective Bargaining Convention, 1981 (No. 154) Art. 6 “The provisions of this Convention do not preclude the operation of industrial relations systems in which collective bargaining takes place within the framework of conciliation and/or arbitration machinery or institutions, in which machinery or institutions the parties to the collective bargaining process voluntarily participate.”

7. International labour treaties and mediation (3) • CoE European Social Charter, 1996 Art. 6(3) “With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: <…> 3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labourdisputes”

8. Mandatory mediation • Currently not widespread in Europe with some exceptions of Italy, France, Croatia (collective), Lithuania (collective), etc. • Discussions are going on to introduce more elements of mandatory mediation in other European countries • Possible compulsory elements in mediation: • Information session as a prerequisite for litigation • Mediation session/s as a prerequisite for litigation • Court referred mandatory mediation or information session

9. EU standards for mandatory mediation vs. access to justice The European Court of Justice 18 March 2010 judgement in the case Rosalba Alassini and Others: • it does not result in a binding on the parties decision • it does not cause a substantial delay • it suspends the period for the time-barring of claims • it does not give rise to costs or gives rise to very low costs for the parties • electronic means is not the only means by which the settlement procedure may be accessed • interim measures are possible in exceptional cases where the urgency of the situation so requires

10. Council of Europe Committee of Ministers Recommendations on Mediation (ADR) • Recommendation Rec(98)1 on family mediation • Recommendation Rec(99)19 concerning mediation in penal matters • Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties • Recommendation Rec(2002)10on mediation in civil matters

11. Rec(2002)10 on mediation in civil matters • Committee of Ministers recommended the Governments of Member States: • to facilitate mediation in civil matters whenever appropriate • to take or reinforce, as the case may be, all measures which they consider necessary with a view to the progressive implementation of the “Guiding Principles concerning mediation in civil matters” set out in the Recommendation

12. Rec(2002)10 on mediation in civil matters: guiding principles (1) • Organization of mediation: • public or private sector • within or outside court procedures • availability of access to court • balance between the needs for and the effects of limitation periods and the promotion of speedy and easily accessible mediation procedures • attention to the need to avoid (i) unnecessary delay and (ii) the use of mediation as a delaying tactic • setting up and providing wholly or partly free mediation or providing legal aid for mediation • reasonable and proportionate mediation costs

13. Rec(2002)10 on mediation in civil matters: guiding principles (2) • Mediation process: • defining the extent, if any, to which agreements to submit a dispute to mediation may restrict the parties' rights of action • mediators should act independently and impartially and should ensure that the principle of equality of arms be respected during the mediation process • mediators shall have no power to impose a solution on the parties • safeguarding confidentiality of information on the mediation process • sufficient time for parties to consider the issues at stake and any other possible settlement

14. Rec(2002)10 on mediation in civil matters: guiding principles (3) • Training and responsibility of mediators: • taking measures to promote the adoption of appropriate standards for the selection, responsibilities, training and qualification of mediators, including mediators dealing with international issues • Agreements reached in mediation: • written document should usually be drawn up at the end of every mediation procedure and cooling-off before signing • enforcement of agreements and no contradiction to public order

15. Rec(2002)10 on mediation in civil matters: guiding principles (4) • Information on mediation: • providing general information on mediation to the public (potential users) • collection and distribution of relevant statistics on mediation • networking of regional and/or local mediation centers and professionals • information on mediation to professionals involved in the functioning of justice

16. CEPEJ Guidelines • Approved by the European Commission for the Efficiency of Justice (CEPEJ) on 7 December 2007 • Concentration on specific measures for better development of mediation / better use of Council of Europe Committee of Ministers Recommendations • Concentrating on measures to ensure better accessibility and availability of mediation and raise awareness

17. EU Mediation Directive (1) Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters • Objectives: • facilitate access to ADR • promote amicable settlement of disputes by encouraging the use of mediation • ensure a balanced relationship between mediation and judicial proceedings • Restrictions: cross-border disputes (but in practice in many countries principles apply to national disputes as well) & soft law approach • Transposition by 21 May 2011

18. EU Mediation Directive (2) • Ensuring the quality of mediation: • voluntary codes of conduct & other effective quality control mechanisms • encouragement of the initial and further training of mediators to ensure effective, impartial and competent mediation • Recourse to mediation: • voluntary • judicial referrals • no prejudice to mediation (i) made compulsory or (ii) subject to incentives or sanctions, but should not prevent access to justice

19. EU Mediation Directive (3) • Enforcement of mediated agreements • Safeguarding confidentiality • Stay of limitation and prescription periods • Encouragement of provision of information on mediation

20. European Code of Conduct for Mediators (2004) • Non-binding, promulgated by group of experts, became very popular • Main principles of conduct for mediators: • competence and availability • up-front agreement on fees • promotion of services in a professional, truthful and dignified way • independence and impartiality • informed and fair procedure (with consent of the parties and respect for their free will) • right to caucuses • efficiency and legality of proceedings • right of parties to withdraw without justification • confidentiality

21. Thank you! Dr Rimantas SimaitisCEPEJ mediation expert, Associated Professor at Vilnius University, Attorney-at-Law, Arbitrator, Mediator, Partner and Head of Dispute Resolution and Arbitration Department at the Law Offices Cobalt Phone: +370 652 36 366 E-mail: rimantas.simaitis@cobalt.legal