What is mediation in collective disputes?
Mediation in collective disputes is a stage necessary to be carried out after negotiations and before starting strike action. Mediation is conducted by a mediator.
Pursuant to the Act on Resolution of Collective Disputes, mediation proceedings are obligatory – they must be carried out after negotiations have reached a deadlock. Mediation is also a procedure that precedes other methods of settling collective disputes: strike action or, if the right to strike is not exercised, proceedings before a social arbitration board.
If the party that initiated the collective dispute maintains the demands made to the employer as the subject of the dispute and a report of discrepancies has been drawn up – with an indication of the parties’ positions, the dispute is conducted by the parties with the participation of a person who guarantees impartiality, i.e. a mediator. Drawing up a record of discrepancies is the formal basis for moving to the mediation stage.
The function of a mediator may be performed by any person whose participation in the mediation procedure is approved by both parties to the collective dispute. Such a person should enjoy general trust and guarantee neutrality.
The parties to the dispute may jointly determine (select) a mediator from the list kept by the minister competent for labor matters, in consultation with trade union organizations and employers’ organizations – representative within the meaning of the Act of 6 July 2001 on the Tripartite Commission for Socio-Economic and Voivodeship Affairs social dialogue committees.
By introducing the institution of a mediator, the Act does not specify any conditions relating to his qualifications – it only requires that he guarantee impartiality. The mediator’s job is to help the parties reach an agreement.
If the parties to a collective dispute fail to agree within 5 days on the selection of a mediator, he or she is indicated, at the request of one of the parties, by the minister responsible for labor issues from the list of mediators. The parties to the dispute are notified of the appointment of a mediator by the minister.
The mediator’s remuneration for conducting mediation proceedings is regulated in the Regulation of the Minister of Economy and Labor of December 8, 2004.
The date of commencement of mediation proceedings is set by the mediator directly with the parties to the dispute. These proceedings, in the majority of cases, are conducted on the premises of the workplace where the dispute is taking place. Participation in mediation proceedings is obligatory for the parties to the dispute.
The employer’s evasion of participation in the mediation process meets the premise of Art. 26 sec. 1 of the act on resolving collective disputes. The employer’s evasion of the statutory obligation to participate in mediation proceedings constitutes an unlawful action – preventing mediation – which entitles the trade union party to organize a strike without first exhausting the possibility of resolving the dispute according to the rules set out in the Act.
Pursuant to the Act, mediation consists in conducting a dispute with the participation of a mediator. The regulations do not explicitly define what this participation is to consist of. However, the act includes some of the mediator’s powers:
- if in the course of mediation proceedings the mediator finds that the resolution of a collective dispute requires detailed or additional arrangements related to the subject of the dispute, he notifies the parties thereof;
- if, in connection with the demand covered by the dispute, it is necessary to determine the economic and financial situation of the workplace, the mediator may propose an expert opinion on this matter (unless the parties agree otherwise, the costs of the expertise are charged to the workplace);
- if the parties decide to carry out the necessary analyzes and expert opinions, the mediator is entitled to apply to the trade union organization to postpone the date of the strike for the time necessary to carry them out.
However, the mediator’s suggestions are not binding on the parties – both those mentioned above and no others. The mediator, unlike the arbitrator, has no decision-making powers. The mediator is present when signing documents concluding the mediation stage in a collective dispute.
There are no obstacles for the parties to agree on the rules for conducting mediation proceedings. In the case of each mediation – regardless of whether the mediator was appointed by the parties themselves or was appointed by the Minister of Labor – the parties may agree on the scope of his services and the manner of conducting the proceedings. The methods of conduct of a mediator who helps the parties reach an agreement are not subject to legal regulation. The methods of influencing the parties are based on knowledge in the field of psychology, sociology, economics or law (knowledge in this field is passed on during trainings organized by the Ministry of Labor and Social Policy). According to mediators from the list of the Minister of Labor and Social Policy, in each case conducting mediation proceedings requires great flexibility and taking informal actions.
The scope of the agreement is decided solely by the parties to the collective dispute – the mediator may assist them in editing the document or suggest the use of clauses guaranteeing compliance with the concluded agreement.
The provisions on the resolution of collective disputes do not specify the duration of mediation proceedings, and therefore mediation should be conducted until the parties to the dispute and the mediator see a chance to reach an agreement.
In practice, it happens that the parties to a dispute lose trust in the mediator during mediation proceedings. Then, despite the lack of a statutory regulation in this respect, the mediator is withdrawn from further performance of his function and another mediator is appointed in his place – however, this situation occurs only when a request to change the mediator is submitted by both parties to the dispute.
However, if only one party requests a change of the person conducting the mediation proceedings, it is necessary to carry out „explanatory proceedings” with the participation of the other party to the dispute and the mediator. In most cases, mediators themselves resign from further participation in mediation, because – according to mediators – only the trust of both parties to the dispute guarantees the success of mediation proceedings.
The practice of resolving collective disputes also allows the mediator to withdraw from mediation proceedings if circumstances occur during the mediation that would influence such a mediator’s decision.
The solutions adopted in the Act suggest a model of one-person provision of mediation services. However, the provisions of the Act do not prohibit the parties from agreeing on a mediation commission to provide assistance in resolving the dispute. In 2006, one of the collective disputes was conducted with the participation of two mediators. In the past, in some cases, mediation proceedings were conducted by two people – this was the application of the „master-apprentice” method. The necessity of its application resulted from the fact that in Poland, before the transformation of the political system, there was no mention of the institution of professional mediators, hence those people who had some theoretical background and experience in conducting mediation proceedings introduced „into life” new adepts of the art of mediation.
Mediation proceedings end with the signing of an agreement by the parties, and if no agreement is reached, a report of discrepancies is drawn up with an indication of the positions of the parties. The agreement concluding the mediation proceedings may settle all the demands made by the trade union party, and it may also be a partial agreement.
Failure to reach an agreement resolving the collective dispute in mediation entitles the employer to take strike action.
Source: dialog.gov.pl
Supported by Norway through Norway Grants 2014-2021, in the frame of the Programme “Social Dialogue – Decent Work”.