15.1 Commonalities and Differences Among Member States
Mediation and conciliation appear to be effective tools, both for the prevention and regulation of collective labor conflicts. Along this handbook the systems and the perceptions of users and mediators from 12 European countries (all EC member states) are presented. In this chapter we aim at a cross cultural analysis through the comparison of these various systems.
As discussed in Chap. 1, article 3 of the Directive 2008/52/EC of the European Parliament and the Council of the 21st of May of 2008 (European Union Directive on mediation) states: “Mediation means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State”. This mediation directive has as objective the facilitation of access to ADR and the promotion of the amicable settlement of disputes, by the promotion of the use of mediation as well as of a balanced relationship between mediation and judicial proceedings (European Commission, 2016). The EC recognizes member states have different traditions and systems, and implementation therefore takes different forms in the countries (Garriga, 2018). Given these, variety it will not come as a surprise that also mediation for collective labor conflicts is showing highly idiosyncratic practices and outcomes. With well-established practices and effective outcomes in some, and with clear challenges in other countries, many of whom having a short tradition in mediation in general, and in collective labor conflicts specifically. Despite the differences, there are fundamental rights that must be taken into account in all member states. These are established in the European Social Charter (1996). In its article 6 about the right to bargain collectively, the charter indicates: “With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake (…) the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes” (Council of Europe, 1996, p. 5). The EU Charter may have an impact on different normative systems of the member states (Eurofound, 2010).
This chapter first presents commonalities and differences in the legal and structural arrangements of the national systems when it comes to mediation in collective labor conflicts. Next, the perceptions of users and mediators are analyzed, and lastly the main challenges and recommendations for further developments in Europe are explored. Each country’s system is considered as a unique case. We followed methods of qualitative multi-case analyses (Yin, 2009).
15.2 Diversity in Regulations and Systems for Conciliation and Mediation in the EC
Characteristics of the mediation system in EC member statesa
BL | DK | ES | FR | GR | IT | NL | PL | PT | RO | SP | UK | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|
Is mediation mandatory before strike? | + | + | − | −/+ | − | + | + | + | − | −/+ | + | − |
Is mediation free of costs? | + | +/− | 0 | +/− | − | +/− | +/− | − | + | −/+ | + | + |
Is the Ministry or a public institution organizing the process? | + | − | −/+ | +/− | − | +/− | +/− | + | + | + | + | + |
Is the Ministry or a public institution selecting the mediator? | + | − | −/+ | +/− | − | +/− | − | + | + | + | + | + |
Are the mediators civil servants? | + | − | ? | +/− | − | + | − | − | + | + | − | + |
Do agents represent the conflictive parties? | + | + | + | +/− | +/− | + | +/− | + | +/− | + | +/− | +/− |
What type of conflicts are dealt with?b | 1 | 1,2,3 | 1,2,3 | 1,2,3 | 0 | 3 | 1,2,3 | 1,2,3 | 1,2,3 | 2 | 1,2 | 1,2,3 |
At what stage is the system activated?c | 2,3 | 1,2,3 | 3 | 2,3,4 | 3 | 3 | 3,4 | 3 | 2,3 | 3,4 | 3,4 | 1,2,3,4 |
- (a)
Obligation to conciliation or mediation
Model 1—Full Voluntary Mediation: the parties can engage a mediator to facilitate the resolution of any dispute that they have not been able to settle for themselves. In this case, a legal framework for mediation is not even required.
Model 2—Voluntary Mediation with Incentives and Sanctions: the parties are encouraged to have recourse to mediation, thus fostering the practice. This model requires a mediation law in place.
Model 3—Required Initial Mediation Session: the parties are required to attend an initial meeting with a mediator, free or at a moderate fee, to establish the suitability of mediation. This model, too, requires a legal framework regarding mediation.
Model 4—Full Mandatory Mediation: the parties must go through a full mediation procedure as a prerequisite to going to court, or to take actions such as strikes. The mandatory aspect applies only to attending the full procedure, while the decision to reach a settlement is always voluntary.
These four models have been applied differently throughout the EU for many different areas of mediation. Analysis of the four models in these other areas for mediation, shows that Model 3, the Required Initial Mediation Session, combines the most effective elements of both the voluntary and the mandatory models (De Palo & Trevor, 2016). The question remains to what extent this conclusion also holds for collective labor conflicts. That is, for example, the requirement to do an attempt for mediation, before a strike or lock-out is legitimate.
Table 15.1 indeed offers a spectrum of levels in which mediation (or conciliation) is mandatory. Please note, that in many countries a first step is defined as conciliation, followed by mediation. Conciliation is often more informal, and corresponding with Model 1 (voluntary). However, also the second step of mediation can still be voluntary. For example ACAS in the UK offers its conciliation and mediation services on a completely voluntary basis. As does the SER in the Netherlands. In both countries, employees can go on strike without further notice or attempt to previously mediate.
These practices differ largely from others with a more regulating framework. For example, Belgium, where conciliation (in fact mediation) is essentially mandatory, though not by law, however as an agreement among the social partners. And in the case of Spain, it is a full mandatory mediation. Or countries in which this process is voluntary but highly requested, such as Portugal where more and more parties are requesting conciliation and mediation to the competent public entity (DGERT).
In other countries the use of mediation is voluntary and mostly an exception (i.e. France, Germany). In some of these countries, mediation becomes mandatory only for certain sectors such as in case of a public transport strike (i.e. Italy). In these countries it has been found that mediation is culturally not internalized, and therefore, not a system that parties choose in cases of conflict. In Romania, conciliation is mandatory, however mediation is not. And while conciliation is relatively frequently used, in case this fails, few parties decide to go into mediation.
The issue of the mandatory mediation for collective labor issues continues being a debate in many countries. Parties recognize that ideally, the conciliation or mediation process starts with an authentic request of (one of) the parties, and the intention to negotiate an agreement, and not primarily because it is compulsory. This way, the parties show their engagement in the process and commitment to resolve the dispute using dialogue and cooperation (Foley & Cronin, 2015). And in countries where mediation is—either by law or social agreement—mandatory, parties do not always come to the table in good faith, however just to ‘follow the ritual’. Nevertheless, for example the experiences in Spain show that mandatory mediation in this context resulted in a substantial reduction of social conflicts, and improvement of social relations (Martinez-Pecino, Munduate, Medina, & Euwema, 2008). Finding a balance between mandatory and voluntary systems, such as the Model 3 (De Palo & Trevor, 2016), might indeed also be relevant for many EC member states when regulating collective labor conflicts.
- (b)
Providers of conciliation and mediation services and costs
Institutions organizing the collective mediation process in EC member states
Country | Institution |
|---|---|
Belgium | Ministry of Labor—Belgian Federal Public Service Employment, Labor and Social Dialogue |
Denmark | Statens Forligsinstitution |
Estonia | National Conciliator Institution |
France | – |
Germany | – |
Italy | Prefecture |
Netherlands | Joint Sectoral Committees (from the Social and Economic council), only for conflict between Works Councils and employer. |
Poland | Ministry of Family, Labor and Social Policy. Social Dialogue Council |
Portugal | Ministry of Work, Solidarity and Social Security. Directorate-General for Employment and Labor Relations DGERT |
Romania | Ministry of Labor |
Spain | SIMA for Spain, SERCLA for the region of Andalucia |
United Kingdom | ACAS |
Looking at the costs of conciliation and mediation services, we see that in most participating countries there is some form of public or collective funding, which promotes access and use of the services. These are regulated for specific phases in the conflict, and in some countries also to specific sectors.
- (c)
Who act as mediators
The role of a conciliator or a mediator can also be integrated in other public functions. For example in France, where the labor inspector does the conciliation work, even if this takes only 1% of the workload. And in Italy, the regional prefects often act in the capacity of mediator. In Romania, mediators are also civil servants, however not necessarily trained or specially qualified in that capacity.
The second model for the use of mediators is working with a list of potential qualified mediators, who act on a case by case base, and typically do this as a side job. This for example is the situation in Spain (region of Andalucia), where both social partners, unions and employer organizations, provide a list of their “own” mediators. Here, mediation teams are always composed of mediators from these both sides, while a public official offers administrative support. The allocation of mediators to specific cases is decided between the employer association and the main trade unions, not by the conflicting parties.
In Denmark the cooperation consulting units in charge of the mediation process also consist of a co-mediation team including members coming from the trade unions and of the employer associations.
Finally, another model is the free market model (the previous Model 1), where a variety of actors provide mediation services. In most countries this market is present, and conflicting parties can always hire such a mediator, if they agree to do so. In such cases, parties are free to select their mediator(s), and work as they prefer, also in preventive stages. Such practices are quite present in Germany and the Netherlands. In France there is a growing number of practitioners in the private sector, also offering training and coaching programs. In these countries, there is a very limited form of institutionalization.
In conclusion, in EC member states we can differentiate four basic profiles of mediators in collective conflicts. The first and most common profile is a public servant, who has part-time mediation functions, and is not specially trained in the conciliatory role. The second profile is the professional expert, who (almost) works full-time as conciliator and mediator, based in a national or regional mediation center. The third profile is the mediator who is representing employers’ associations or trade unions, who acts incidentally, however is officially registered. The fourth profile is the independent expert, who is hired directly by the conflicting parties, outside any regulatory system. These people can be experts in labor law, negotiations, industrial relations, retired judges, or university professors, and acting at different phases and in different third party roles.
- (d)
Conflict parties or representatives at the table
The advantages are evident, as professional negotiators are less personal and emotionally involved, and have a broader overview of options, and specific expertise and knowledge, for example on labor law. There is also a possible downside to this model. The parties are less engaged directly, and issues such as distrust, lack of communication and respect, which are often the root causes (see Chap. 2), are sometimes not dealt with in this format. Also, there is a potential agency problem, with the representatives having their own interests and agenda. Finally, representatives might experience strong pressures from their constituencies, who can literally ‘stay in their room’ (Munduate, Euwema, & Elgoibar, 2012).
Another complexity, is that in many conflicts, employees are represented by different unions, not necessarily with the same interests at the mediation/negotiation table, and also even different employers, as occurs in joint-venture organizations or in organizations where some activities are externalized by temporary employment organizations. Such conglomerates of parties and interests generate a multi-party mediation which sets high demands for the coordination of the process and reaching an agreement. Such complex situations and systems require more training and mediators with a high level of competences in orchestrating the process.
An additional issue noticed in several countries is that not all relevant stakeholders are present. Particularly when the conflict is initiated at other levels, for example in the case of multinational companies, national governments or headquarters, or shareholders, who are not at the table. This can be illustrated by the challenges in Poland, where the conflicting parties appear at first to be the management and employees, however the manager in fact represents the interests of the (foreign) owner.
In many countries there is a tendency to promote direct communication between the main parties in an open dialogue. In that sense, mediation moves towards more informal conciliation processes. And only when these informal processes are not resulting in an agreement, further steps are taken, and representatives come more into play.
- (e)
Mediating different types of conflict
From a technical point of view, disputes about interests have a greater potential to obtain integrative results, since the parties can create value in the negotiation and reach agreements that benefit both parties. Rights disputes are easier perceived by parties as a win-lose situation, and is about who is right and who is wrong. Parties have restrictions, given the fact that certain parameters are already agreed to in advance (Foley & Cronin, 2015). The judicial system also exerts a detrimental effect on the mediation agreement to be understood by the parties as a feasible alternative (or BATNA). Based on the limited data on types of conflict in relation to agreements, we conclude that the agreement rate for rights conflicts is lower if compared to conflicts of interest. This is in line with previous research (Martinez-Pecino et al., 2008). It is important for mediators to recognize the different dynamics in these conflicts, and act upon these (Foley & Cronin, 2015).
Disputes over rights and over interests are a very limited framing of the complex conflicts typically taking place. Throughout the studies in 12 countries, it is evident that when conflicts escalate, there are typically multiple issues at stake, and the underlying issues are usually driving the conflict. Issues over trust, communication, respect, insecurities, both in the relation between employees and the organization, and the employee representatives and (top) management, usually are more determinant for the conflict dynamics than the issue of ‘rights’ or ‘interests’ itself. Mediators therefore need the ability to address these underlying issues.
- (f)
Phase in which the system is activated
In Denmark and the United Kingdom, the system can be activated when the conflict of interests is still latent. The UK and Denmark have a fairly elaborated early conciliation system, aiming at direct support for parties in such early stages, working directly within the organizations. For example, such services are provided by SBI in the Netherlands (the expertise center for social dialogue), and by the Social Economic Counsel. Also, many private companies offer services for training and team development as preventive measures, however these are not part of a national public system.
- (g)
How to mediate: from evaluative to transformative mediation
Evaluative mediation, in which the mediator gives opinions and recommendations, is not congruent with the problem solving approach (Foley & Cronin, 2015), and certainly not with the transformative approach (Folger & Bush, 1996). The studies in each country presented in this volume suggest that mediators in quite some countries do use such an evaluative method of mediation. Here opinions and judgments on the positions and interests of the parties appear throughout the mediation. In some systems, evaluation by the mediators is considered a bias, and not recommended. Other systems have included proposals by the mediator team, generating a process similar to a non-binding mediation-arbitration procedure (MED-ARB). Here, the mediator offers a proposal to the parties, after a period of conciliation. A problem of evaluative mediation is that some of the parties may perceive that the impartiality has been lost, as in the case of Portugal, for example. In this sense, it would be interesting, as some systems do, (a) to regulate how and when it is appropriate to make recommendations, (b) how these recommendations should be, and (c) inform previously to the parties that they are participating in a process of mediation where the mediator might offer proposals, so that parties can give their consent to this.
Based on the evaluation of the systems, the recommendation is to use a problem-solving mediation for a medium-high intensity conflict level, whereas a more transformative mediation, based on improving communication, relations and understanding between the parties, could be more appropriate in the reconciliation phase. Evaluative mediation might be suitable when the conflict is at high-intensity level, with breakdown of communication and actions.
- (h)
Measuring effectiveness
15.3 How Is Mediation in Collective Labor Conflict Perceived by the Users?
Here we have to differentiate between the evaluation of the mediation system, how the formal rules are arranged, the mediation procedures, and the mediators.
- (a)
Evaluation of the system
Also in Denmark, users perceive that the mediation helps to change the approach: “It was certainly not high flying, but it was just a boost for us to realize how to do things differently” (employer representative, Denmark). As the mediators were involved in early stage, the objective of the intervention aims to promote understanding of different interests and recreate trust. In that, users have a high degree of satisfaction. In the UK, trade union users believe that mediation allows them flexibility and autonomy.
In other countries with a low tradition of collective bargaining and mediation, as Estonia, users consider that the system needs to improve. Main reasons given are the lack of training, poor organization and lack of trust in outsiders. A user expressed: “As far as I understand it is hardly organized and structured. Many of the mediators do not have any kind of formal training”. There exists also a lack of consolidated ADR culture and this process is mainly used in conflicts related to large sized organizations. In Poland, parties show ambivalence, in the sense that they see the potential as a value-creation activity, however question the current structures and quality. Also, users believe that mediation should be introduced at an earlier stage.
In Romania, users perceive that the system is dysfunctional and that the responsibilities are not clear, plus they consider that there is a lack of training in mediation—some recent training programs established aim to solve this view. However, they also share a general satisfaction with the conciliators—which is the mandatory step here—and with mediators—voluntary step. An employee representatives illustrates it the following way: “In Romania, trust and satisfaction with the conciliator and mediator exists when they are impartial and keep confidentiality”. However, social partners critic the system. “It would be bizarre to claim lack of satisfaction with the efficiency of a specialist (employee of the Ministry) in a process that he solves admirably, only because the logic of the process is faulty”.
The resistance towards the involvement of third parties is observed in many countries, such as France, Germany, Italy and the Netherlands. Larger organizations prefer to work often with an internal mediator, for example within the HR department. In Portugal users also prefer to negotiate directly without the intervention of third parties, however here parties appreciate the work and effort developed by DGERT. They also show a feeling of trust, given their neutrality.
- (b)
Trust in the mediators by parties
ACAS in the UK is highly valued by its users for the integrity and professionalism of conciliators. In that, the long term relationship of the stakeholders with ACAS facilitates trust. ACAS follows an engagement policy and maintains contact with the parties during and after the conflict. When parties are voluntary searching for a mediator, trust is key, and based mostly on the mediators’ reputation of competence, experience, benevolence and integrity, in line with literature (Elgoibar et al., 2016).
- (c)
Effectiveness of mediations
In the UK users perceive the system as effective, not only because it brings the parties back to the table, however also the process helps to manage the emotions of the parties involved. Managers and trade unions agree that the voluntarist approach is working and that this can be seen in the overall industrial relations climate. Apparently, organized (unionized) companies are perceived as more effective in terms of mediation process than the unorganized ones.
15.4 How Is Mediation in Collective Labor Conflicts Perceived by Mediators?
As we explain below the perception of the system changes considerably between mediators working (a) in cultures where the system is established and a tradition of mediation already exists and (b) in cultures where parties have difficulties to trust the system or where the benefits of using mediation is unknown by them. We focus on the satisfaction of the mediators with the system; the relation they build with the parties and their beliefs about effective behavior as mediators.
- (a)
Satisfaction with the system
In Portugal mediators are also satisfied with the legal structure and the fact that mediation is widely disseminated: “social partners are increasingly aware of the importance of DGERT and seeking our services more and more”. These requests are mostly coming from trade unions, given that is this party the one who is dissatisfied with the conditions. In the UK mediators show high level of satisfaction with the system and with their work: “The value of our service is phenomenal…research suggests that for every pound ACAS spends on the service the economy saves £80.” Acas Chief Conciliator UK.
This view differs in countries where the tradition of mediation is not existing. That is the case in France where there is no structured mediation system, and mediation is growing in the private sector but not as an institutionalize procedure. Also in Romania, even if the conflict resolution procedures available (conciliation, mediation and arbitration) are clearly defined and distinguished, mediators observe that parties confuse between them. Foley and Cronin (2015, p. 17) conclude that: “where there is no tradition (…) such a requirement may create, over time, an environment where parties come to understand the process and, in due course, to value it as a means to resolve disputes”.
- (b)
Relation with the parties
Therefore, mediators differ in their approach to the relation with the parties, with some keeping distance and others having a closer relations, this can also depend on the type of mediation that each mediators follow (more transformative or more evaluative).
- (c)
Effective behavior
Impartiality is seen as key to get trust “We jealously guard impartiality…because if we bias towards one side or the other our value goes out of the window” (Mediator, UK). Overall mediators as well as policy makers in the UK consider impartiality as the key for success. Also in Poland impartiality is relevant to be chosen by the parties to lead the mediation.
15.5 Challenges for Conciliation and Mediation in Collective Labor Conflicts in Europe
This paragraph explores the main challenges for conciliation and mediation that users and mediators have shared during the development of the project.
- 1.
Lack of professionalization
- 2.
Institutionalization is needed
Another challenge appears in those countries, such as Poland, where only a small part of the existing conflicts go to the mediation systems, which can generate enormous costs to the country’s economy.
Making a comparative analysis, those more developed, and those that have still a low level of development, it is certainly worrying that countries with more than 20 million of inhabitants have less than thirty non-professional mediators. There is a high potential of evolution in the majority of the existing systems.
In some countries in which mediation is culturally not highly accepted, parties generally don’t trust the system and therefore the promotion of mediation becomes really challenging.
- 3.
Restriction of time
- 4.
Measuring and evaluating effectiveness
- 5.
Flexibility in methods
- 6.
Mandatory nature of the system
- 7.
Use of representatives
15.6 Suggestions for a More Effective Collective Mediation System. What Can We Do?
- 1.
Establishing a formal way of evaluating the procedures
- 2.
More time for each mediation
- 3.
More mediators
- 4.
Formal and in-depth training
- 5.
Conflict prevention system
- 6.
Extend the use of mediation in different phases
- 7.
Taylor-made interventions and more flexibility in the system
- 8.
Promotion of the system
15.7 Conclusion
The mediation in collective conflict in Europe has generated heterogeneous systems explained by the regulatory framework of each country and by its social and political tradition in collective bargaining. The European Directive of mediation didn’t include the labor setting, because it is a sector protected in some EU members by National States constitutional laws. As a consequence, systems are beginners, with a few professionalized processes.
The Member States have been guaranteeing the existence of mediation systems and supporting them economically and technically, understanding them as completely necessary for the country’s economy and social peace. However, in order for the systems to fulfil their role in a more efficient way, the mediators must be further trained and professionalized, systems must be evaluated in order to learn and improve. An increase of the number of mediators is necessary. In the same way, greater emphasis is required on preventive mediation and on the reconstruction of relations between the parties when the conflict is over.
Acknowledgements
The authors thank the Fundación Obra Social La Caixa for supporting this research work.
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