Disputes between employees and employers arise almost every time an employment relationship ends. Often, the parties to an employment contract are unable to reach an agreement earlier, during the employment relationship. In such cases, the employee or employer most often resort to court resolution. However, this situation is not the only possibility for reaching an agreement between the parties.
Mediation
The first option—by far the most popular during the process—is mediation. It involves using the assistance of an external person—a mediator—who will help the parties reach a satisfactory resolution to the conflict. This will save the time and money otherwise spent on litigation, and the resolution of the dispute will be entirely within our control. In the case of a court case, we won't know the outcome until almost the end of the case.
What is mediation?
Mediation itself involves an independent entity, i.e., a mediator, organizing meetings between the parties to a dispute, with the goal of reaching a resolution. According to the regulations, mediation is confidential, meaning its proceedings will not be made available to the court or other parties to the proceedings who are not directly participating in the mediation meeting.
Mediation and negotiation – differences and similarities
Both mediation and negotiation can be initiated by the parties or initiated by the court during the course of the proceedings. Parties often believe that mediation is the same as negotiation – this should be strongly denied. Negotiations do not involve a third party acting as a "wall" between the parties in dispute. In negotiations, the parties present their positions and interact with each other to reach a binding agreement. In labor law, the institution of negotiation can be used, for example, to negotiate the termination of an employment relationship – by mutual consent or by notice, with or without severance pay, etc.
Despite all this, it remains difficult to achieve a mutually satisfactory agreement between the parties. However, if negotiations are used, it's worth remembering the possibility of later filing a lawsuit and the parties using evidence related to the negotiations.
What are the consequences of a settlement?
Both mediation and negotiation culminate in an agreement. In the legal process, such a document is called a settlement. However, the effectiveness of the agreement varies in each case of conciliatory resolution of the dispute.
In mediation, the court may approve the settlement. This can be done either by issuing a ruling or issuing an enforceability clause. This allows for immediate enforcement of the debt based on the settlement by a bailiff. It's worth noting that the court may refuse to approve the settlement if it violates the law, violates principles of social coexistence, seeks to circumvent the law, is incomprehensible, or is internally contradictory.
The pre-trial negotiations themselves culminate in an agreement, which—at most—may constitute an acknowledgment of the debt by the contracting party. This will allow for a faster conclusion of the court proceedings, but it will not allow for immediate enforcement proceedings—the creditor will then (after all) have to conduct court proceedings. If an agreement is reached before the court (during the proceedings), the court will generally record the agreement in the court transcript. This will allow for the immediate application for a writ of execution, which will authorize enforcement.
As an aside, it should be noted that if the case goes to trial and the parties are referred to mediation, or the parties reach a position in another manner (including concluding a settlement before the court), the trial will be concluded.
In conclusion, it's clear that conciliatory dispute resolution methods offer a significantly faster resolution to conflict situations. They also allow for a satisfactory resolution for both parties. Therefore, it's definitely worth considering.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of June 27, 2024
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