**Industrial Relations & Conflict Management**

Martin C. Euwema Francisco J. Medina Ana Belén García Erica Romero Pender Editors

# Mediation in Collective Labor Conflicts

# Industrial Relations & Conflict Management

#### Series Editors

Martin C. Euwema, Faculty of Psychology and Educational Sciences, KU Leuven, Leuven, Belgium Lourdes Munduate, Faculty of Psychology and Educational Sciences, University of Seville, Seville, Spain

Disseminating cutting edge theories and empirical research in the field of industrial relations and conflict management, from an interdisciplinary approach, and firmly based in theories on human behaviour in relation to work and organizations. Formally the series will publish monographs and contributed or edited volumes from leading psychology and other social sciences scholars. Specifically, the series integrates theories and research from industrial relations (sociology, business, law and psychology), with those on conflict management, mediation and more generally well-being and productive behaviour in the workplace. Volumes in this series respond to the demands of policymakers and the public, remaining relevant and applicable for science, industry and society. Delivering relevant research and conclusions from local, regional, national and international perspectives. The aim of the series is to contribute to cooperative and constructive relations in organizations at three levels: organizational level, team level and interpersonal level. The series will contribute to the existing academic research and literature by providing an advanced publication platform for improving the science of understanding industrial relations and conflict management. Publishing volumes which deliver valuable contributions from the range of developing perspectives on this subject.

More information about this series at http://www.springer.com/series/13458

Martin C. Euwema • Francisco J. Medina • Ana Belén García • Erica Romero Pender Editors

# Mediation in Collective Labor Conflicts

Editors Martin C. Euwema Faculty of Psychology KU Leuven Leuven, Belgium

Ana Belén García Department of Social Psychology University of Sevilla Seville, Spain

Francisco J. Medina Faculty of Psychology University of Sevilla Seville, Spain

Erica Romero Pender Department of Social Psychology University of Sevilla Seville, Spain

ISSN 2199-4544 ISSN 2199-4552 (electronic) Industrial Relations & Conflict Management ISBN 978-3-319-92530-1 ISBN 978-3-319-92531-8 (eBook) https://doi.org/10.1007/978-3-319-92531-8

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© The Editor(s) (if applicable) and The Author(s) 2019. This book is an open access publication.

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# Contents

## Introduction

Conflict is an inevitable part of working life in all its relations. Conflicts appear between individual colleagues, as well as between teams, departments, or between professional units. Of old, conflicts in the relation between employers and employees have received extensive attention and are at the basis of what is called 'industrial relations' or 'labor relations'. Particularly, with the rise of large-scale industrialization in the nineteenth century, conflict between 'capital' and 'labor' has been a central theme, and according to many is of a fundamental nature. Others argue that not conflict, however, cooperation is at the core of industrial relations. Employers and employees negotiate freely an agreement, meeting each other's interests. Negotiations can be made between individual workers and the employer (the so-called i-deals) and between collectives of workers (collective labor agreements). The negotiations can, however, get stuck and the conflicts of interest between employer and employees—or their representatives—can escalate. Power relations, more than mutual interests, might determine the conflict dynamics, resulting in deadlock, strikes, or layoffs. The tough negotiations, for example, in the case of Ryanair for several years, illustrate this. Strikes at different locations are countered by transferring airplanes and flights to other European countries. Collective conflicts also can occur when parties do not feel the agreement which is made, is kept. Such conflicts of rights (the perceived violation of one parties' rights) have also received considerable attention, and many cases are brought to the labor courts, or to alternative forms of dispute resolution, such as mediation, arbitration, or conciliation. Here we are at the central topic of this volume. In academic literature mediation, or other forms of third-party intervention in collective labor conflicts have received surprisingly little attention. Surprising, for at least two reasons. First, the societal impact of escalating collective labor conflicts is large, with often serious 'collateral damage' for others than the primary parties. Second, the field of mediation and third-party intervention is developing rapidly in many domains, and receives more and more also academic attention. Mediation in collective labor conflicts, however, has been neglected mostly and has many different features compared to mediation in other domains, such as divorce mediation or mediation in individual labor conflicts. Mediation in collective labor conflict has a long and also institutionalized tradition. In most societies, the terminology is different, and is referred to this process as conciliation in labor disputes, as a relative informal process of facilitated negotiation. Alternatively, most societies have long traditions in forms of mediation/arbitration, where a committee of 'wise persons' organizes a hearing, investigates the case, and comes with recommendations to the conflicting parties on the content of the case. Such recommendations can, however not need to be, be binding for the parties. A large variety of third-party regulations and practices have emerged all around the globe. The ILO has done a great job in providing information on many such arrangements.

This handbook aims to provide an up to date and insight view of global regulations, practices, and recommendations for the further development of third-party assistance in collective labor conflicts.

The handbook consists of four parts.

Part I. Chapters 1 and 2 give an extensive introduction of the concepts and current literature. To this aim Chap. 1 offers a new model for the structural analysis of mediation in collective labor conflicts, while Chap. 2 offers a new model for the process analysis of the conflict and related third-party interventions.

Part II. In this part, the procedures and practices in 12 EC member states are presented. This part is the result of an EU-sponsored project investigating the state of the art in the EC. For that purpose, multi-method studies were conducted in each of these 12 countries, and the results condensate in the present volume. The cross-country comparison for these 12 chapters is presented in Chap. 15.

Part III. In this part, five societies are presented with a rich tradition in mediation in labor relations and a highly dynamic and different tradition in industrial relations. With new studies from Australia, China, India, South-Africa, and the USA, this book covers most of the industrialized world.

Part IV consists of an integrative chapter, taking stock of the wide variety of practices and noting good practices and global trends. The chapter makes clear that mediation in collective labor conflicts is a widely used practice, with a need for further professionalization in many societies, to meet the needs of a changing labor force, changing organizations, and changing industrial relations.

We wish this book contributes to that professionalization, and thereby to the cooperative and innovative management of collective labor conflicts.

> Martin C. Euwema Francisco J. Medina Ana Belén García Erica Romero Pender

# Part I General Framework for Interventions in Collective Labor Conflict

# **Chapter 1 Mediation and Conciliation in Collective Labor Conflicts**

**Ana Belén García, Erica Romero Pender, Francisco J. Medina and Martin C. Euwema**

A BBC news headline on April 12th 2018 reads: "*Lufthansa and Air France flights grounded by strikes. Two of Europe's biggest airlines have been hit by strike action, grounding hundreds of flights and affecting tens of thousands of passengers. Lufthansa has been forced to cancel 800 of its 1600 scheduled flights because of a walkout by public sector workers. At the same time, Air France has cancelled one in four of its flights as airline staff takes action in support of a 6% pay claim*."1

KLM-Air France was confronted with actions by their own staff. The conflict continued and escalated further. The CEO tried to force a way out, by making a poll among the employees. On May 7th: "*KLM*-*Air France shares plunged after its chief executive pledged to resign because he had failed to quell labor unrest, throwing the company's strategy into question. The French president Macron is expected to appoint a mediator now."*2

Lufthansa was here facing major losses due to actions of civil servants who went on strike, as part of their negotiations with the government. Lufthansa was not a party in this conflict. "*It is completely unacceptable for the union to impose this conflict on uninvolved passengers" said Bettina Volkens (Lufthansa's head of human resources)*. This however was different one week later.

1 https://www.bbc.com/news/business-43709807.

2 https://www.bloomberg.com/news/articles/2018-05-07/air-france-tumbles-as-ceo-departurestrikes-spook-investors.

A. B. García · E. R. Pender (B) · F. J. Medina University of Seville, Seville, Spain e-mail<EMAIL_ADDRESS>
M. C. Euwema KU Leuven, Leuven, Belgium e-mail<EMAIL_ADDRESS>
April 18th, Munich: "*Today pilots went on strike at Lufthansa, knocking out 3200 flights according to the company's skeleton timetable. The four*-*day work stoppage will be the biggest stoppage labor disruption in the German airline's history. More than 4000 of Lufthansa's 4500 pilots are members of the Cockpit Association, which in May demanded pay hikes of 6.4%, a no*-*layoffs promise and commitments from the airline not to outsource operations to lowerpay subsidiaries. With a deadlock after months of talks, Cockpit Association members voted last week to authorize an all*-*out stoppage*. 3"

Also in January 2018, media worldwide reported on the public transport in Sydney, which came to a stop. Actions by the drivers—due to changes, quality issues, increasing workload, and for the drivers an unacceptable wage offer- —created a deadlock in the negotiations between workers and management. A new strike was blocked by the Fair Work commission. In response the national secretary of the Rail, Tram and Bus Union, Bob Nanva, said "*this decision marks the death of the right to strike in Australia*".4

This last case clearly points to the third party in the conflict. The Fair Work commission playing a mediating role, however also ruling against the right to strike in the Sydney case. In each case an important question is: which third party is there to help the conflicting parties to come to a negotiated agreement? And were there third parties available earlier in the negotiations that could have prevented this escalation? Mediators, conciliators, facilitators and arbitrators all might play a role in preventing and ending collective conflicts.

Collective conflicts between employers and employees regularly escalate at high costs, and therefore most countries worldwide offer different third party interventions and mediation services to solve these conflicts. Also, preventive forms of third party training, facilitation, and conciliation are growing in many countries. In Europe, the EC actively promotes such initiatives under the legal framework of social dialogue. Different studies show the need among social partners, employers, unions and other stakeholders, to innovate industrial relations and social dialogue (Cutcher-Gershenfeld, Kochan, & Calhoun Wells, 2001; Euwema, Munduate, Elgoibar, Garcia, & Pender, 2015; Munduate, Euwema, & Elgoibar, 2012; Weltz, 2008). One of the essential components in this innovation is supporting social partners, especially when negotiations are stuck, agreements cannot be reached, or rights are not respected, and conflict escalation might occur. Traditions differ among countries in this sense, having different approaches in providing such mediation assistance. However, there's a lack of knowledge on how these conflict resolution systems work and how to further promote development. This book focuses on the analysis of mediation systems in collective labor conflict, offering ways to prevent and manage these conflicts, bringing some light over the current knowledge gap about: (a) the actual functioning of

3https://themunicheye.com/news/Lufthansa-Strike-Update-331.

4https://www.theguardian.com/australia-news/2018/jan/25/sydney-train-strike-stopped-fair-workblocks-union-action.

these services; (b) the conditions to promote the use of mediation; (c) good practices of effective mediation interventions.

## **1.1 Collective Labor Conflicts**

Collective labor conflicts are an inevitable part of organizational life. Tensions between the interests and rights of employees, management and owners, being shareholders or public agents, can easily escalate into destructive levels. For that reason, societies develop legal frameworks to regulate these conflicts. An important element in these regulations is the role of third parties in managing the conflict. In the traditional approach, parties go to court and make a claim towards the other, and the labor court has the final ruling. In the Australian case, the specific labor court decided that the Sydney transport's announced strike was illegal. This leads to important considerations regarding the ongoing negotiations and the high societal costs, among others. Indeed, collective conflicts are frequently costly for organizations as well as for employees, but not less importantly, they can be costly for clients, users and society in general. The example of Lufthansa shows the impact of collective conflicts, not only for travelers, but also for other companies. Patients, students, clients or customers are not served, and communities can be disrupted. In that sense, labor conflicts can further escalate into societal conflicts. Although violence against people is less usual in most industrialized societies, injured and even dead people are not uncommon in labor and social conflicts in countries with a conflictive history and great power distance between companies and employees, for example in many South-American and African countries, including South-Africa (Medina, 2016).

Collective conflict management is a highly regulated process around the world. Most countries have labor laws, that defend the association of workers in unions, and in works councils, representing the employees in the organization. Furthermore, in a majority of countries around the world employees have the right to strike to defend mutual interests. However, in many countries, for example in France, the right to strike is limited or even absent for specific jobs which have high societal impact (such as the police or the military). As strikes and other collective actions have high costs, in many countries these actions are only legal when organized by official recognized organizations, such as unions. Furthermore, in some contexts strikes are only legitimate after serious attempts to negotiate and solve the conflict. Such attempts include negotiations and meetings guided by facilitators or mediators. Usually, parties have the option to go to court, however the judicial system is collapsed in some western countries, is costly for parties and government, and their decision might not solve the underlying issues. For this reason, states facilitate the use of mediation for managing labor conflicts.

The court in Sydney declared the strike by the train drivers illegitimate. The response from the union's side was that the ruling marked "*the death of the right to strike in Australia*". A rather dramatic statement, demonstrating that rhetoric is a key element in escalated conflict. It however also signals a global trend, where the role

**Fig. 1.1** Average amount of days not worked between 2000–2016 in European countries. *Source* https://www.etui.org/Services/Strikes-Map-of-Europe (At the Etui website following this link more detailed information for each country and year is available.)

of unions is shifting (Euwema et al., 2015), and the amount of strikes is decreasing. Brown (2014) reports a strong decline in union membership in most countries over the past 30 years as well as a reduction of strikes. This can be explained by three major trends: the reduced power position of unions; new and more cooperative models of industrial relations; and new models of third party assistance, also aiming at the prevention of strikes. This is clearly demonstrated for example in the UK (Dix, & Barber, 2015; Dix, & Oxenbridge, 2004). In Spain some mediation systems were introduced during 1990's decade as a mandatory procedure for collective conflicts, preemptive to strike announcements or the initiation of a court demand. This substantially reduced costs related to strikes (Martinez-Pecino, Munduate, Medina, & Euwema, 2008; Warneck, 2007) (Fig. 1.1).5

In most countries nowadays, also arbitration, conciliation and mediation are part of national conflict management systems, previous to the judicial court. According to Brown (2014), there is a global trend towards greater use of Alternative Dispute

5The International Labor Organization (ILO) works to protect labor rights, including the right to strike and the right to freely associate. The "Resolution concerning the Abolition of Anti-Trade Union Legislation in the States Members of the International Labour Organisation", adopted in 1957, called for the adoption of "laws ensuring the effective and unrestricted exercise of trade union rights, including the right to strike, by the workers". Similarly, the "Resolution concerning Trade Union Rights and Their Relation to Civil Liberties", adopted in 1970, invited the Governing Body to instruct the Director-General to take action in a number of ways "with a view to considering further action to ensure full and universal respect for trade union rights in their broadest sense", with particular attention to be paid, inter alia, to the "right to strike" (ILO, 1970, pp. 735–736).

Resolution systems (ADR), where parties are assisted to come to an agreement, as alternative to the judicial system.

Brown (2014) argues that governments—inside and outside of the European Union—have promoted the creation of quasi-judicial processes, by the mean of institutions that offer conciliation or mediation which facilitate the resolution of these collective conflicts previous to strike. The most notable differences refer to the extent to which they can be considered judiciary as opposed to carried out by non-legal specialists. Despite the different economic and political backgrounds of each country, there are some important commonalities, especially during recent years (Valdés Dal-Ré, 2003). For example, countries which were at some point in time very judicial, such as Spain, are becoming less so. Likewise, systems which relied more on voluntary approaches such as Britain are increasing the regulation of collective disputes. A notable trend in European countries is the preference for voluntary approaches, as encouraged also by the European Commission in the year 2000. We can see a spread of voluntary conciliation, mediation and arbitration procedures for dispute resolution, due in part to the lower costs and fast resolutions that these practices often achieve, and the building, restoration and maintenance of relations between the parties on the long run.

Indeed, third parties in collective conflicts can have many different roles. And all over the globe, we find a large variety of such actors. There is a whole array of arbitrators, mediators and facilitators who might be acting as third parties. When the stakes are high, and the conflict is escalated, often public persons, politicians, religious leaders, or mayors, act as third parties. However, there are also often institutional third parties, professional mediators and facilitators.

Given the high stakes, it is worth to reflect on the design of conflict management systems in relation to these collective conflicts, and to explore how these third parties act and their effectiveness. This indeed is the aim of this book. Initiated by the EC, recognizing the importance of social dialogue and prevention of conflict escalation in labor relations, this book considers third party assistance in different stages of conflicts and aims to learn from good practices across countries and systems.

## **1.2 Collective Conflicts in Organizations**

Conflict is a reality at many levels at work; between individuals, teams, departments and organizations. We define conflict between two or more parties (individuals or groups), if at least one of the parties is offended, or is hindered by the other (Elgoibar, Euwema, & Munduate, 2017). Collective labor conflicts traditionally are focusing on the relation between management and groups of employees (mainly unions). According to the ILO, the topic of these conflicts is often focused on the rights or interests of theses groups. This differs from individual labor disputes, which are those that arise within the relationship between an individual employee and his or her employer. Labor conflicts can take place at different levels within organizations, however also at sectorial level, or even national and international level. The ILO's definition of labor conflict is essentially referring to only one type of relation within organizations: the relation between employer and employee. The organizational reality evidently presents many other forms of conflicts, such as interpersonal conflicts between colleagues, also at different hierarchical levels. For example, when a schoolteacher has a conflict with a school team leader over how to elaborate a syllabus, this is not a conflict with the employer. In the same school, the department of natural sciences might be in conflict with the department of arts over allocation of resources. Such conflicts between groups of employees also are conflicts where groups participate, but the conflict issues and conflict dynamics are not related to the employer-employee relation. However, when teachers negotiate about an increase of salary with the school owner, this is traditionally seen as a "collective labor conflict", because the conflict parties are employer and employees, and the issue has an impact on a larger group of employees.

There is substantial literature focusing on handling interpersonal and intragroup conflicts in organizations (e.g. De Dreu & Gelfand, 2008; Rahim, 2017; Roche, Teague, & Colvin, 2014). This literature is mostly separate from the literature on intergroup conflicts that try to understand conflicts between groups and also separate from the 'labor conflict' literature, rooted in the employer-employee relationships. This literature is often more related to the legal analysis, formal regulations, social structures, collective bargaining and the influence and role of unions.

## *1.2.1 Collective Labor Conflicts Over Interests and Rights*

In this volume we focus on collective labor conflict, that is focusing indeed on the relation between employees and employer. Many authors differentiate two types of collective labor conflicts: either over interests or over rights (Foley & Cronin, 2015; Martinez-Pecino et al., 2008). Disputes over interests are those in which parties attempt the modification or substitution of existing agreement terms, for instance, the negotiation of a collective agreement. Disputes over rights are those which deal with the interpretation and application of existent rules such as laws or collective agreements. There are differences in the effectiveness of negotiation in both types of conflict, with conflicts of interest easier to resolve than legal disputes (Medina, Vilches, & Otero, 2014). In the same way, third party interventions also differ in effectiveness and strategies in both types of conflict (Martinez-Pecino et al., 2008). Surprisingly, the scarce studies investigating collective conflicts, are limited to conflicts of interest. The social impact of these conflicts for society makes it necessary to gain a deep comprehension of them (Macneil & Bray, 2013). In this book, we certainly stretch beyond collective bargaining, as many conflicts in organizations occur related to different interpretation of rights. For example in the case of the Sydney train drivers, who are forced to work overtime, which in fact is an issue of rights.

## *1.2.2 Conflicting Parties*

The conflicting parties and conflict issues in collective labor conflicts can be highly divers. This can be a first line supervisor in conflict with his or her team over the working hours; the director of a school in conflict with the sport teachers over the sports facilities at the school; management of a bank in conflict with the works council over payment of bonuses; or the top management of a mining company in conflict with unions over working conditions. Conflicting parties can also be at sectoral or national levels. For example primary school teachers went on strike in 2018 for better working conditions in the Netherlands.6 Conflicts at sectoral and national levels bring usually other actors to the scene. Typically, from both sides, professional agents represent the interests of the primary parties, negotiating on behalf of employers, including governments, and employees.*In this book we primarily focus on conflicts at organizational level*. That is conflict between one employer and a group of employees. These conflicts can be at different levels within the organization, including site or departmental level.

## *1.2.3 Representing Employees: Unions and Works Councils*

When we focus on representatives, in most countries world wide, and certainly within Europe, there are two basic institutional actors on the side of employees: inside the organization we find works councils and health and safety committees, and outside the organization we find unions representing the interests of workers. These bodies are usually involved in different types of conflict.

*Unions, strikes and mediation* Within the EU, usually unions have the only right to call for a strike. Before going into social action there has to be in many countries an attempt to solve the conflict through conciliation or mediation. Such is for example the case in Spain, Portugal, and Belgium.

*Works councils, deadlock in decision making and mediation* Works councils are the formal bodies of dialogue between management and elected employee representatives. Organizations in most EC member states have to inform, consult and even need the approval of the works council when it comes to decisions impacting the employees, such as restructuring. For example a Dutch health care organization facing financial losses proposed to restructure. The works council did not approve, which make progress impossible. Organized and free third party assistance to unfreeze these conflicts are offered for example in the Netherlands and Denmark.

6https://nltimes.nl/2018/02/14/strike-northern-netherlands-primary-school-teachers-picket-line.

## **1.3 Mediation and Other Third Party Interventions**

The title of this book refers to 'mediation'. Mediation is defined here as '*any third party assistance to help parties preventing escalation of conflicts, helping to end their conflict, and find negotiated solutions to their conflict*.' The third parties in this definition can have different roles and positions, related to the society, culture, as well as level of escalation and specific parties involved. There is a wide array of terminologies used, which contribute to some confusion. In several countries we observe that what is officially called 'mediation', has mostly characteristics of arbitration, and often is a very formal process where representatives of the conflicting parties are negotiating for solutions, and the third party often acts in an evaluative way. This approach differs largely from the ILO promoted form of conciliation. Foley and Cronin (2015), updating the ILO instructions, refer to conciliation and consider this also as mediation, and promote clearly a non-evaluative approach, mentioning the conciliator should not offer opinions (2015; p 59).

Mediating between CEO and works councils

In the fall of 2017, in Germany the conflict between the union IG Metall and ThyssenKrupp over the planned steel merger with Tata Steel is escalating. Oliver Burkhard is asked as mediator and arbitrator.7

*Trade unionist Oliver Burkhard has demonstrated his negotiating skills during the recent events, and for this reason, the HR director is just the man for the job.*

*With the assistance of deputy Supervisory Board member and IG Metall secretary Markus Grolms, it is planned that Oliver Burkhard will head a task force, ThyssenKrupp reported on Saturday during a meeting. This task force will then decide for or against the merger. Heinrich Hiesinger's plan is for the two steel companies to join forces, becoming the second*-*largest steel group in Europe. Thousands of steelworkers demonstrated last Friday against the merger of the two steel businesses. Whether the two steel groups will merge to form a giant still remains to be seen. "I feel cheated, betrayed, but still defiant," said Director of the Works Council for the Steel Division, Günter Back.*

The Supervisory Board now has the task of discussing this in depth and providing advice. Alongside Burkhard and Grolms, the task force represents the Management Boards of the two corporations, as well as the employee representatives from the various steel locations.

7https://steel.shop/en/blog/steel-merger-causes-conflict-between-ig-metall-and-thyssenkrupp/.

#### Mediation between employees and the corporation

As mediator, Oliver Burkhard is right in the middle. Now he has to mediate between ThyssenKrupp CEO Hiesinger and the employee representatives. However, he is under particular pressure to prove his skills this time. The mood of the 27,000 steel employees is understandably at rock bottom over the merger plans. If the steel merger goes ahead, this would mean up to 4000 jobs being cut, and thus also 4000 people seeing the ground crumble beneath their feet. Works councils and IG Metall are concerned that the 200-year-old traditional company could now be totally devastated. In early 2018, the Supervisory Board will again discuss further plans, but the whole transaction is expected to take until the end of 2018. If the employee representatives continue to vote "No" to the planned steel division, the Supervisory Board Chairman Ulrich Lehner will have to force the project through using a double voting right—absolutely taboo under normal circumstances!

"The Management Board has ignored all the warnings and bet everything on a single card. This does not mean we are going to endorse their decision," criticises Günter Back, Director of the Works Council for ThyssenKrupp's Steel Division.

According to Back, the Works Council is now obliged to help shape this decision. Back tells us that this should now take place in such a way that "the worst" is prevented. At the same time, he sees by no means just 2000 jobs eliminated in Germany, but far more—a catastrophe for many of those involved.

## **1.4 Regulations, Roles and Relations: 3-R Model of Mediation in Collective Conflicts**

Inspired by Budd and Colvin's (2008) 'geometry of disputes resolution procedures', Bollen, Euwema, and Munduate (2016) developed the 3-R model of workplace mediation. This model has been adapted to fit the analysis of mediation in collective conflicts. The 3-R model refers to three different dimensions that are important to consider when deciding for mediating and what form mediation takes: Regulations, Roles and Relations (Fig. 1.2). The three dimensions together create a three-dimensional pyramid that is built upon different layers, going from the broader context at the bottom, to specific third party tactics at the top.

At the bottom of the pyramid, we find more general characteristics of the context that determine the availability and use of mediation for a specific collective workplace conflict: (a) the wider context of conflict management and conflict in sector and society, (b) the organizational conflict culture and (c) the availability of different

**Fig. 1.2** The 3-R model of mediation

third parties. An important feature for example is the right to strike for employees, the position of unions, the role of works councils at organizational and local plant level, and the differences in legislation and practices between public and private sector.

The top of the pyramid represents first (d) the structuring of mediation, (e) mediation styles, (f) strategies and (g) tactics used, that result in a specific mediation outcome.

Structuring of mediation focuses on who acts as mediators; is there a regulated team of mediators, and are these different depending on the level of escalation of conflict? Do mediators always act in pairs, teams, or alone? Mediation styles refer to the different approaches in mediation—sometimes even 'schools' or ideologies— varying from evaluative and directive styles (Della Noce, 2009), to transformative and facilitative mediation (Folger & Bush, 1996). Traditionally, in industrial relations mediation showed similarities with arbitration or shifted towards this. Styles where mediators (almost) act as arbitrators, contrast with a non-directive and transformative mediation style (Bush, 2002).

The mediator strategy refers to a broad plan of action that may help to decide which actions are needed to achieve some objectives in particular conflict situations. As such, it refers to the mediator's (or mediation team's) general way of working in the mediation itself. An example could be the choice to rely solely on caucusing, work with a few representatives in the joint sessions, bringing in experts, etc. Evidently, the mediator strategy is highly influenced by the mediation style the mediator(s) adhere to. As Foley and Cronin (2015, p. 58) describe: "*Ultimately, the personal style of the conciliator, and their relationship with the parties will influence the types of meetings that take place; but always the decision as regards meeting types should be based on what is most appropriate in seeking to assist the parties to move towards agreement or resolution*."

In the Netherlands, the Social Economic Council provides free mediation service for collective conflicts. The structure here is, that three different mediation committees are present for different sectors. The mediation style is officially in all cases facilitative. This is an important shift with the 20th century, when mediation was more evaluative, and took form of hearing parties and giving a non-binding advice. Nowadays, joint sessions are the standard where the mediator aims to facilitate a constructive dialogue.

Mediation tactics, refer to the most detailed level and thus the actual mediator behavior: the specific communication techniques and instruments used by the mediator in the pursuit of certain objectives. The tactics used are the behavioral specifics of the mediator strategy chosen by the mediator.

#### 1. Regulations

The dimension Regulations refers to different regulatory frameworks towards collective conflict at societal, sectoral and organizational level. On a societal and sectoral level, this includes labor laws, as well as negotiated agreements on conflict management between social partners. On an organizational level, this refers to specific human resources policies which define conflict management including regulations for mediation, and for example the conditions under which external or internal mediators can be used, also in collective conflicts (Constantino & Merchant, 1996; Pel, 2008). This also relates to legal rights of employers, unions, and works councils. For example to unilaterally ask for third party support.

#### 2. Roles

The dimension Roles refers to the role expectations of the conflicting parties as well as to the roles of all persons potentially involved as third parties in the conflict. Conflicting parties have perceptions and expectations of their own and each other's roles in collective bargaining. In some cases, the intervention of third parties is not an element of the culture of how conflicts are managed: 'We should be able to manage this ourselves' is often the standard, and also part of the negotiation culture 'Professionals are able to solve their own conflict'. Top management particularly might perceive bringing in third parties as loss of face, as they have not been able to manage the employment relations. These cultural norms could affect the acceptance of mediation as a valid resource when conflicts appear.

The second element of this role dimension, explores all possible others who might intervene as third party in the conflict. We see that people occupying different types of functions are involved in management of collective conflicts as well as in mediation: arbitrators, legal counselors, union specialists, judges, as well as coaches and specialized trainers (for the improvement of social dialogue) regularly might be involved in different stages of escalated conflict. Not to mention different types of leaders, from political (party politicians) to societal (mayors, or respected neutral persons), to religious leaders, regularly act as mediators. This might be particularly the case, when the collective labor conflict transforms into societal conflict.

#### 3. Relations

The last dimension refers to Relations and describes the characteristics of the relations between the conflicting parties, and their relationship with the mediator. What are the formal and informal power structures that influence parties' interaction and as such the mediation? What are the specific needs of the parties in relation to the conflict and what are their expectations for assistance by a third party? All this determines if and what types of mediation are suitable, or that other types of interventions by third party, like conflict coaching, are more appropriate. In collective conflicts, parties are often represented by agents. This creates specific dynamics, also in terms of relationship qualities. Agents might be replaced, and have their own interests and agenda in negotiation and mediation.

It is important to analyze the structural qualities of the relation such as the formal power structure between parties and the legal rights they derive from this. To what extent are parties interdependent and how is the power balance? At the same time, it is important to take stock of the psycho-social qualities of the relationship given that most labor relations are more than just instrumental (García et al., 2016, 2017). How do parties perceive each other? To what extent do they wish to reconcile? What is their attitude: cooperative or competitive? To what extent do they perceive justice? Both structural and interpersonal characteristics will determine what type of mediator, strategy and tactics are used best to come to a mutually acceptable and satisfying solution.

The 3-R model of mediation helps to analyze mediation in its context. First, it helps to understand the extent to which mediation is used, for what conflicts and how the process of entering the mediation is organized and functioning. Secondly, the model offers a framework to understand the choice for certain mediation styles, strategies and tactics based on the interplay of regulations, roles and relations. Finally, the 3-R model offers a tool to understand and explain specific outcomes of mediation, given the characteristics of the Regulation's, Roles and Relations and their interplay.

## **1.5 Conclusion**

Collective labor conflicts are an inevitable part of labor relations. Such conflicts can take place at different levels; from the shop floor, within organizations, up to sectoral, and national levels. Internationally operating organizations might well face cross border conflict. Worldwide there is a decline of escalated conflicts, in terms of industrial actions such as strikes. Also worldwide, ADR is promoted, particularly forms of conciliation and mediation. Many countries, as well as the EC, promote constructive management of collective labor conflicts through legislation, social dialogue and mediation. Currently, academic empirical research is mostly lacking on the different arrangements for third parties, the perception and expectations of parties involved, and the effectiveness (Wall & Dunne, 2012).

## **References**

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# **Chapter 2 Third Party Interventions at Different Phases of Collective Labor Conflict**

**Erica Romero Pender, Ana Belén García, Francisco J. Medina and Martin C. Euwema**

In 2018 the UK faced an escalating conflict, resulting in a rather unique strike in many universities over pensions. 27 February 2018, the *Telegraph* headed:

*"Lecturers and university leaders enlist conciliation service ACAS but strikes are set to continue"*. 1

*Lecturers and university leaders have agreed to enlist the conciliation service ACAS to mediate in their bitter dispute over pensions. The full 14 days of strikes are still going ahead, University and College Union (UCU) said, with students facing further disruption and cancelled lectures in the coming weeks.*

*Strikes will continue on Wednesday, as well as four days from next Monday, and ending with a five*-*day walkout from Monday March 12 to Friday March 16. The UCU said it was pleased that Universities UK (UUK), the vice*-*Chancellor membership body, had agreed to another meeting to try to end strike action currently affecting 61 universities.*

*A spokesman for Universities UK said: "Further talks are being arranged. In the interest of students, we have asked UCU to stop the industrial action while talks continue to find an alternative, viable and affordable solution. Both parties agreed to involve ACAS in facilitating further talks to bridge the significant distance between both sides."*

Almost two months later, the *Guardian* headed2 : "*UK university strike action to end after staff vote to accept offer*"

1 https://www.telegraph.co.uk/education/2018/02/27/lecturers-university-leaders-enlistconciliation-service-ACAS/.

2 https://www.theguardian.com/education/2018/apr/13/uk-university-strike-action-to-end-afterstaff-vote-to-accept-offer.

E. R. Pender · A. B. García · F. J. Medina · M. C. Euwema (B) Ku Leuven, Louvain, Belgium e-mail<EMAIL_ADDRESS>
*The ballot of 50,000 University and College Union members in higher education found a substantial majority in favour of accepting the offer, which establishes a joint committee of experts to evaluate pensions provided through the University Superannuation Scheme (USS).*

The conflict in the UK on pensions is a classic example of a collective sectorial conflict, with many institutes for higher education involved. In the UK (see Chap. 14 for details), employees have the right to strike, without previous attempts to find agreement through conciliation or mediation. We see here, that even while the actions continue, also ACAS as third party is invited by parties to mediate in the dispute. ACAS offers different third party services, including facilitation, conciliation and mediation related to the development and escalation of the conflict, and the requests of the parties. Typically, when collective conflicts arise and escalate, different third parties and different interventions are available. In this chapter we first present a model of development of these conflicts, and secondly, related interventions.

## **2.1 Escalation of Collective Labor Conflicts**

Escalation of conflict is the process of intensification of a conflict. According to several authors (Rubin, Pruitt & Kim, 1994), escalation is characterized through different changes: (a) parties use harder tactics (change from promises to threats); (b) the number of issues increases; (c) small issues grow into big and more fundamental ones; (d) number of involved persons and parties increases; (e) the goal of parties shift from realizing own interests to hurting the other.

A main cause of escalation is the denial by one party of the claims of the other. Deutsch (1958) mentioned three main phases of conflict escalation. Firstly, parties' focus on the realization of their own goals, and maximize these. When it becomes clear this is difficult to achieve, competition becomes dominant. The aim now is to win from the other. When this power battle develops further, again a fundamental shift appears. The aim is to blame and shame and hurt the other party. These three phases, (win-win; win-loose; loose-loose), have been further developed by Glasl (1982), into his nine stage model of escalation. There is little empirical evidence conflicts go through all these nine phases, however the essential idea is, that third party interventions should be tailored based on the level of escalation. With facilitation being most useful in relative early stages of escalation, mediation in higher escalated levels, followed by arbitration and legislation, or forms of unilateral power, trying to end the conflict. The intervention of a neutral third party with status or other forms of power (for example a politician, a public figure), is employed in some cases as a way to reduce the social and organizational conflict. An example is the mediation between a mining company and the inhabitants of Cajamarca (Perú), leaded byMiguel Cabrejos, a prestigious priest in Perú. Pruitt and Kim differentiate five ways to end escalation. (1) One party wins over the other. One of the parties gives in, or simply loses. Such outcomes can be seen after a long battle in labor conflicts, where one the parties gives in. (2) One party gains, manipulates the situation to their own advantage. (3) Parties stop fighting, and move forward. (4) A third party in an authoritative role rules and forces parties to comply to the decision; (5) Parties negotiate towards an agreement, usually supported by a third party. This might include the formation of a joint taskforce, as in the case of the university staff strike in the UK.

Zartman (2000) added three concepts to escalation theory which are highly relevant for the understanding of the development of collective labor conflicts. His core idea is the 'ripeness' of a conflict, needed to come to a solution. This is essentially composed of two criteria: a hurting stalemate situation, and hope. Industrial relations in organizations often develop over time into antagonistic relations. We have seen the example of Air France, where labor relations in France have been intensely conflictive for many years. A change towards social peace requires such conflict to 'ripen', before a more systemic solution can be achieved. For such, according to Zartman, two conditions are needed. First, parties have to experience a 'hurting stalemate', the conflict is costly to the parties, both financially as well as in general terms of threat of survival of the company or relationship. Reputational costs are high, media exposure contributes to that, and social and psychological costs build up. When costs increase, and former strategies don't work, parties are motivated to work on solutions if the second condition also is there: hope. Hope that for example working with a third party, changing the strategies used so far, might bring indeed an improvement of conditions.

As long as parties believe they can win over the other, there is not much incentive to search for a negotiated solution. Such beliefs, also embedded often in beliefs of (moral) superiority, and justice ('the other acts totally unfair and illegal'), contribute to escalation.

Stalemate and hope motivate parties to search for an acceptable solution, helped by a third party.

## **2.2 Collective Conflicts: Development Through Five Phases**

Escalation theories naturally focus on the process of growth of the conflict. And typically start where there is already a conflict present. Also most collective labor conflict models start with the dispute, sometimes even with the threat of a strike, which already involves a high level of escalation.

Therefore, we might best compare the development of conflict, with the development of storms.

Industrial relations have a strong conflict potential, given different interests of employers and employees, in combination with their interdependence. Interdependence means that employers and employees need each other to realize their own goals and they need to continue working together when their conflict disappears. However they also have different and even conflicting interests. These latent phases

**Fig. 2.1** Five phases of conflict development

are the perfect condition to build up the industrial relations, so they can endure the winds of change that inevitable come.

Figure 2.1 presents five phases of conflict development.

The cycle represents different possible phases of conflict escalation and deescalation. Evidently, not each conflict has to go through all phases. Winds of change might be mild. And when handled properly might result in renewed productive working relations and continued social dialogue. However, winds can also develop to storms or hurricanes, with potential to destroy. This destructive side of conflicts is seen too often, although Brown (2014) convincingly argues that the occurrence of escalated labor conflicts such as strikes has become less frequent. This might be due to early warning signals and early interventions (Brown, 2014), which will be discussed in more detail in the next paragraph.

*Five phases of collective labor conflict development*

*Win*−*Win*

## *Win*−*Loose*

3. **Confrontation**: negotiations are blocked, confronting tactics, forming of alliances, threats, competitive approaches by both parties.

## *Loose*−*Loose*

4. **Hot conflict**: parties aim to hurt the other, through strikes, unilateral actions, lay-offs etc. Communication bridges are blocked. Parties increase competitive and aggressive actions.

#### *Ending and Restoration*

5. **Rebuilding working relations**: ending of conflict episode, searching new ground to work together, if the organization continues to exist. Dealing with damage done, restore relations, replace key actors (fire, prosecute, or change for political reasons)

A conflict might end in different ways. The UK university case shows a classic technique, that is forming a joint task group, which will investigate and work on integrative solutions acceptable for the main parties involved. Alternatively, arbitration or ruling of the court might end this conflict episode. However after the storm, usually parties continue to work together. This does not necessarily have to be the same actors, however employer(s) and employees are there. Unless the conflict ends through dramatic change, the bankruptcy of the company, moving to another country, downfall of union, or massive layoffs. Most conflicts don't result in such damage and then repair works need to be done. This is typically left to the organizations, and usually parties move on, however with low trust and an increased risk for new escalations. If not properly addressed, the aftermath of one conflict episode will be fueling the next cycle, reinforcing a conflict culture. Therefore, investing in preventive interventions as well as measures for trust rebuilding are important steps to take, and not just left to the organizational dynamics.

## **2.3 Third Party Interventions in Each Phase**

The five-phases model offers a stepping stone to reflect on possible third party interventions in each phase. Such possible interventions are presented in Fig. 2.2.

**Fig. 2.2** Interventions during the phases of conflict development

## 1. *Training during the latent conflict phase*.

It is a wisdom of old, that you best build your house in summer, with nice weather conditions. Building constructive and strong industrial relations in organizations also are best done in relative peaceful times. Investing in a clear infrastructure for social dialogue, developing a team spirit, both within a works council, and between the works council, management and HR, as well as with the key players from unions, pays off in times of crisis. Training competences for social dialogue both at individual, team and organizational level are considered among the most important preventive measures (Munduate, Euwema, & Elgoibar, 2012). Foley and Cronin (2015) give several examples of preventive actions, including audits by trusted conciliators.

#### 2. *Facilitation during early stages of conflict*.

When conflicts arise, conflicting parties often benefit from a facilitator, who helps them to focus on a constructive, and problem solving attitude, helps them to define common interests, and assists to search for valid information, and exploration of different scenarios and options. There is a clear trend towards more 'early stage intervention' and training in such 'interest based bargaining', showing very good results in collective labor conflicts (Cutcher-Gershenfeld, Kochan, & Calhoun Wells, 2001). Also, other forms of facilitated negotiation can be seen, for example, in Belgium, for many years, the CLA-negotiations are chaired by mediators who are civil servants, contracted at the ministry of labor (See Chap. 3, this volume).

#### *Resistance to involve third parties*

Inviting third parties to prepare for contending, complex and high-stake negotiations usually pays off. However, parties in conflict tend to be resistant to ask for third party assistance. This is observed at all levels in organizational conflicts, including collective labor conflicts, between top management and employee representatives. Reasons for not inviting third parties in early stages of conflict are usually related to the self-definition of primary parties, who believe*; 'we are professionals and it is our core job to manage these situations'*. Inviting a third party often makes the primary party feel less competent, insecure, and less in control (Schein, 1999). Schein advocates therefore a humble attitude by third parties, focused on asking the right questions, instead of giving opinions (Schein, 2013).

#### 3a. *Conciliation when a formal conflict appears*.

When a party perceives a conflict or dispute, they can turn to a third party for assistance. This requires indeed the explicit recognition that there is a dispute. In many societies, such recognition is related to social action (moving from dialogue to action), however also many authors argue the conflict already is there before, and third parties should be involved when no progress is made by parties. In many countries, a first step than is to invite a conciliator, who searches informally with the parties for common ground and solutions. Such conciliation is well described by Foley and Cronin (2015), and Dix and Oxenbridge (2004). Where Foley and Cronin (2015) argue that conciliation and mediation can be seen as essentially the same process, in many countries conciliation is defined and organized as a relative informal process, where conflicting parties participate voluntarily, and search with support of a third party for solutions. Mediation is often described as a next step, more formal, using caucus and in some circumstances giving recommendations to the parties.

#### 3b. *Mediation when the conflict intensifies.*

When the conflict further escalates, and parties threaten each other with unilateral actions, or are using those to increase pressures on the other party to make concessions, the dialogue often is disrupted. Parties refuse to meet at the table, before the other makes a move. In such cases, voluntary conciliation doesn't always work, as parties are not willing to invite a third party. Often, higher authorities then appoint a mediator. Alternatively, legislation provides in such mediation procedures. The voluntary nature is less present, and the third party is also accepted due to the expertise in the area or the trust in the mediation system. Parties might be willing to listen to the considerations of a 'wise person'. Putting pressures on parties to move is not uncommon, including giving opinions. As such the mediation can take a more evaluative form. And although some describe 'evaluative mediation' as an oxymoron, there is a growing trend to this form of third party intervention (Della Noce, 2009).

#### 4a. *Arbitration when conflict costs run high.*

With tensions rising and more escalated conflicts, the third party interventions also become more authoritative. Traditionally, third party mediation often was characterized by a strong evaluative character. Parties presented their case, and a committee would ask questions for clarification, deliberate, and then came with a recommendation. This form is still present in several countries, and is close to arbitration. Bush (2002) sees hybrid forms, also Jordaan and de Wulf (2016) describe the South Africa practice of med-arb in labor conflicts. The combination of mediation and arbitration offers parties the ability to come to an agreement, however if not successful the mediator can act as arbitrator. This practice also is not uncommon in China in collective labor disputes. Arbitration involves parties accepting the decision of a third party. Such might be helpful to end a conflict when parties no longer are able to find common ground and a negotiated agreement. Typically, this might end the conflict episode, however underlying causes will not be dealt with.

#### 4b. *Court rulings when the conflict needs an ending.*

Most countries have established specialized labor courts. Ruling by the court might indeed end the conflict episode. This can help parties to de-escalate. The ruling however might very well imply also referral to some form of mediation (Pel, 2008). Alternatively, court ruling might fuel new episodes, or take the conflict to other levels, both judicial and societal. For example taking the case to higher courts, or getting sectoral or national actors involved.

#### 5. *Facilitating rebuilding relations*

Who cleans up, picks up the pieces and rebuilds after the storm? Conflicts leave traces. Distrust often is strong, resentment and feelings of revenge might prevail (Elgoibar, Munduate, & Euwema 2016). Key players who have been demonized are hurt, and the negative imagines prevail, fostering the negative stereotypes and intergroup tensions. A conflict-episode might be ended, the aftermath can easily refuel the conflict as we see for example in the Air France case in France. Even after the replacement of several key players, the conflict continues like a smoldering wildfire. Is third party assistance needed to rebuilt trust, to repair and restructure social dialogue, and to start preventive measures to learn from the past? This seems evident, however very little literature gives insights in the actual practices which take place (Lewicki, Elgoibar, & Euwema, 2016). And more so, who should provide such assistance, and after what stage of escalation would this be helpful, and needed? Such questions are part of the exploration in the EC study and this book.

## **2.4 Conclusion**

Collective labor conflicts typically develop through phases. Given the nature of industrial relations, there is always a latent conflict between the interests of employers and employees, also in times of social peace. These latent conflicts might develop into episodes of overt conflict, and escalate to destructive levels. Different third party interventions are available during different phases of conflicts. In most countries some form of third party intervention is available. This is usually limited to specific escalation phases (particularly around threat of strike, or other collective actions) much less seems arranged for preventive third party support, or restorative actions to rebuilt relations after a conflict episode.

## **References**

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Part II Regulations and Practices of Mediation and Conciliation within the European Union

# **Chapter 3 Mediation and Conciliation in Collective Labor Conflicts in Belgium**

**Tijs Besieux, Elisabet Lenaerts, Olivier Van Loo and Valerie Veldeman**

#### **The Case**

A large foreign owned company has multiple production facilities in Belgium, one of its prime production locations. In the years leading up to the conflict, the company suffers from a drop in demand for production in Europe because of the financial crisis and its own activities in other regions of the world. Restructuring is announced and production is dialed back in Belgium which results in over 200 people becoming temporarily unemployed. There are smallscale employee actions and protests regarding the current situation leading to discussions at the organizational level.

A couple of years later, further cost cutting is announced and one of the facilities stops production for an entire month resulting in economical unemployment of over 400 employees. The company reports a heavy loss and has to fire dozens of employees while announcing further restructuring. Coinciding with the ongoing restructuring, the CEO announces his departure from the company.

During the reorganizations, biennial negotiations commence regarding the Collective Labor Agreement. Unions wanted to connect a strong social plan to regular negotiations, however, these negotiations failed rather quickly as two of the three major unions refuse to sign the proposed Collective Labor Agreement.

T. Besieux (B) · E. Lenaerts · O. Van Loo · V. Veldeman Leuven, Belgium e-mail<EMAIL_ADDRESS>
© The Author(s) 2019 M. Euwema et al. (eds.), *Mediation in Collective Labor Conflicts*, Industrial Relations & Conflict Management, https://doi.org/10.1007/978-3-319-92531-8\_3

Following the failed negotiations, these unions block the gates of the company and start a general strike. The company accuses the unions of playing power games, using failed negotiations as an excuse while the unions stated that the employer pushes decisions without any decision power or respect for employees.

The company sends a judicial officer to the site to force access to the site and identify several of the people responsible for the strike while threatening with judicial consequences. The company one-sidedly cancels some of the previous collective labor agreements, resulting in general anger among the unions. The company sues several employees but the court does not agree with them. Simultaneously, the company announces further firings unrelated to the current conflict.

After a six-week strike, a first conciliation meeting fails and does not produce any form of agreement.

External pressure is increased as the board implies that closing the facility altogether is an option should problems persist. Employees reach out to government officials in hopes of intervening.

Local management and the employers' federation initiate a second conciliation attempt.

After almost two months of striking, both parties reach an agreement ratified by two thirds of unionized employees in a vote.

The parties agreed to a new Collective Labor Agreement as well as formal arrangements regarding further collaboration. The mediator also advised the company not to pursue further sanctions.

Despite of the agreements and advice, a climate of unrest remains while the parent company announces further restructuring and global cost cutting. A smaller strike occurred the next year after management gave a single employee a written warning. Employees perceived the warning as revenge from management and indicates the conflict's influence more than a year later.

## **3.1 Introduction**

The Belgian Federal Public Service Employment, Labor and Social Dialogue offers conciliation and mediation services to the private and the public sector in collective labor disputes (FOD WASO, 2017). This government agency acts as a third party to mediate collective conflicts at the level of the organization in the private sector, primarily through the Conciliation Board (further referred to as CB), created within a Joint Committee. A Joint Committee is the bi-partite collective bargaining body at sector level, composed by a representation of the social partners and chaired by a Federal Labor Mediator (European Foundation for the Improvement of Living and Working Conditions, 2006). Collective dispute mediation in the private sector has a long-standing tradition in Belgium. In 1968, a legal framework anchored the system of collective dispute mediation, mandating federal mediators to resolve disputes between employers and employees in the CB (Wet van 5 December 1968).

In the public sector however, mediation is not yet widespread because the government implemented it only rather recently (since 2013). In the public sector, the mediator solely manages the process between the conflicting parties, without the advantage of a Conciliation Board.

In the current research, the terms 'mediation' and 'conciliation' were often found in documents and during interviews as referring to the same underlying meaning. Even the name of the governmental agency in Dutch refers to mediation ('bemiddeling'), whilst in French it refers to conciliation ('conciliation') (FOD WASO, 2017). In the Belgian context, one could distinguish conciliation from mediation based on the stage of the process. That is, conciliation is more referred to in the context of the conciliation board, while mediation is more referred to as a potential next step when the conciliation board does not come to an agreement. However, the techniques and skills underlying conciliation and mediation are referred to by the interviewees in this study as the same.

According to the 'Institut der deutschen Wirtschaft' estimates, in 2016 a total of 79 labor days per 1.000 employees were 'lost' due to strikes. Belgium ranks fourth compared to 21 other OECD countries. Only France (123), Denmark (118) and Canada (87) score higher (Institut der deutscheun Wirtschaft, 2017). Approximately 3.5 million Belgians are member of one of the three major unions, 65% of them are currently employed. This represents a union density of 51.2%. Including smaller, independent unions, the total union density for Belgium is 55.1%.

#### *Private Sector*

Belgium's private sector has a tradition of social dialogue involving unions, employers and government (Devos, Mus, & Humblet, 2011). This dialogue expresses itself in several forms, and at different levels. It can be found in (but not limited to) the institution of joint committees, the conciliation board and government policymaking. Joint committees for instance, are institutions where an equal number of the sector's employer and employee organizations negotiate collective labor agreements and are responsible for their supervision (Devos, 2009). Joint committees also advise the National Labor Council and government. These instances of social dialogue occur at the sector, federal, regional as well as organizational level (Humblet & Cox, 2011). In the private sector, there are currently 13 mediators (8 women; 5 men).

The institutional system of social dialogue and negotiation between social partners knows a longstanding history dating back to 1945. This makes the system a fundament in the current corporate and political system. Belgium as a country has a rather strong history and presence of labor unions and unionization with major unions tied to affiliate political parties (Van Gyes, Segers, & Henderickx, 2009). The individuals involved have developed personal relationships and mutual understandings, resulting in a strong informal social network underlying the system's working. Organization and facilitation of this social dialogue falls under the jurisdiction of the Belgian Federal Public Service Employment, Labor and Social Dialogue. This Government Service reports to the Belgian minister of labor and has its administrative chair in Brussels.

#### *Public Sector*

Third party intervention is a recent phenomenon in the public sector and, in contrast to the private sector, has not yet known any significant growth. Policy makers decided to implement a system of social dialogue and opportunities for mediation as an alternative to implementing a system of obligated provision of services during a strike. This makes the origin of mediation and third party intervention by government mediators a politically motivated solution, and thus not necessarily based on demands or needs of the involved parties. The agency hired three mediators specifically for the public sector in 2013, with one of them leaving some time afterwards. The goal of the mediators is to set up a system in analogy to the private sector. Because the mediator does not chair a joint committee in the public sector, utilization of social networks and contacts was relatively limited.

During the set-up of the system, the primary focus was building these social contacts/networks, resulting in a promotional tour of government agencies. Simultaneous to this effort, a conflict arose in one of Belgium's governmental departments. One of the mediators used this conflict as an opportunity to design and test strategies and methods. Strong regional differences appear between Flanders and Wallonia. There was a notably stronger willingness in Flanders than Wallonia to participate in this form of mediation/dialogue, because of earlier positive experiences with mediation in the Flemish region. Within the Flemish government, a well-regarded government official was already experimenting with mediation before official implementation, causing some familiarity with, and a positive attitude towards, the concept.

## **3.2 Characteristics of the System**

#### *Private Sector*

The Belgian Federal Public Service Employment, Labor and Social Dialogue almost exclusively organizes collective dispute mediation and conciliation during conflicts. This is a result of the long history of social dialogue in Belgium, further anchored through the law of 1968. Although third parties outside of the government might operate during these conflicts, none of the interviewees mentioned this (Fig. 3.1).

When a conflict arises in an organization between—for instance—local management and the trade union delegation, further steps in the conflict differ. Whilst HR or management enter discussions directly, a local representative (secretary) of the involved union mostly assists employees.

If these negotiations fail, the employer or union representative have the option to contact their corresponding representative organization (employer's federation or

**Fig. 3.1** Five-step process of the Conciliation Board (Belgium)

union relevant to sector) and request the formation of a 'Conciliation Board' (CB). In reality, unions primarily request CB's, as they are most often the complainant in these conflicts.

When the representative organization receives the request, they usually make an inquiry about the specifics and context of the conflict to assess whether it is suited for a CB. These organizations will ideally look at previous efforts towards conciliation, subject (collective vs. individual), as well as severity of the current conflict. It thus acts as a second filter, with the first being the management or union representative, in assessing the severity of a conflict and the involvement of 3rd parties.

If the representative organization judges the conflict to be severe enough or a candidate for conciliation, he/she contacts the chair of the sector's joint committee and requests the formation of a CB. The chair will act as both mediator and chair of this CB, assisted by a secretary of the government. Other members of the CB are representatives of unions and the employer organizations. If the conflict is very complex, the mediator can ask for assistance from a colleague from the Belgian Federal Public Service Employment, Labor and Social Dialogue.

After the formation of the committee, the appointed members will enter negotiations concerning the conflict and possible solutions. The conflicting parties will be present at the location but separated from the actual negotiation and each other. Their role is to inform the committee of their viewpoints and problems at the beginning of the session and to be consulted about their willingness to accept proposed solutions.

The conflict is, in a sense, transferred to the committee's members who negotiate on their behalf. The chair/mediator is responsible for the negotiations between the committee's members, and mediates between the present. The committee does not have any strict legal authority to enforce agreements, but does have the necessary moral authority because of the involvement of both government and representative organizations. The conflicting parties therefore generally follow reached agreements—although no exact data are kept. The committee can also give further recommendations concerning dialogue at the organizational level, although enacting and reporting these recommendations is the responsibility of the conflicting parties. After concluding the BC, the parties generally implement a cooling-off period which dictates a certain timeframe during which no actions/strikes can be taken.

The Collective Labor Agreement stipulates specific guidelines about timing, formation and minimum requirements (number of required representatives for example) of the committee and can thus vary according to sector or level. The CB is however, a necessary procedure if employees wish to take action in the form of for example a strike. Should a CB fail in its attempt to resolve the conflict, the employees are justified in taking action and striking, but no sooner. Spontaneous actions or strikes because of organizational conflict do still occur. When this happens, a CB forms as soon as possible and will skip some of the aforementioned procedural steps.

#### *Public Sector*

Because the public sector lacks the history and institutions such as the joint committee, its procedures are not as clear as in the private sector. As mentioned earlier, no strong social network underlies its working and limits the visibility of current conflicts as well as actual conciliation requests. In this case, one of the conflicting parties' representative organizations still requests conciliation, but no formal committee is appointed. However, representatives can still be involved in the mediation and the involved number of people splits up and separates should the group be too large. In comparison to the private sector, the procedure does not stipulate strict regulations regarding the timing of strikes or conciliation as a necessary step.

#### *Evaluation of stakeholders on the system*

#### 1. *Mediators/facilitators*

#### *Private Sector*

Mediators are satisfied with promotion of and general familiarity with the system in the private sector. They see general promotion of the system's use as a responsibility of the social partners (employer/employee organizations) as they play a crucial part in informing, and guiding their members. The mediators are also generally very positive about the intervention system, and particularly its financial and relational benefits compared to litigation or other judicial processes. According to the mediators, the familiarity with the system gives it a big advantage, as well as the built-up respect and trust in the process due to its long history. Familiarity with the intervention mechanism is also noted as one of the reasons why the different parties generally respect agreements.

An issue however is that there seems to be little structural follow-up of conflicts after the CB has intervened. Mediators however do report that feedback occurs more spontaneously, as they meet the involved parties at other occasions.

Another potential issue is that parties request a CB too late. Every party of the joint committee can request a CB; however, the employee organizations request most of them. The employer also has more decision power and therefore does not feel the same need to use the system, using it only in the most urgent cases.

The mediators themselves do not describe their different structural roles (chair of joint committee, CB and mediator) as a hindrance. Their position allows them to build trust with the social partners more easily through increased contact with relevant individuals. These contacts also allow them to stay up-to-date with the state of affairs in the sector.

#### *Public Sector*

At the time of the interviews (2017–2018), the public sector had not implemented the role of the mediator him/herself effectively. The very limited demand for interventions in the public sector, and lack of other responsibilities such as the joint committee, made the workload very unpredictable. Long periods of little work contrasted intense periods with a disproportionately high workload causing problems with planning and work-life balance. Although mediators are, in general, very positive about the mediation process, they indicated higher-level issues regarding the prevalence and demand of interventions. Interviewees described two main factors for these problems. A first explanation was the limited experience parties had with the system. Due to the system's origin in the public sector as a political solution, it did not develop from actual demands and needs of the parties involved in these conflicts. The lack of extensive social network as seen in the private sector hinders the mediator's functioning by limiting access to information regarding current affairs and conflicts. Interviewees said, however, that the success of several cases increased the interest and information requests from involved parties significantly. This might be a sign that through word-of-mouth advertising and experience, the system's usage and popularity can grow over time.

A second explanation for limited demand lies in the reluctance of employees to request interventions due to fear of reprisal. Interviewees note a power imbalance in favor of the involved government agency and fear of their reaction (budget cuts, staffing decrease, demotion, etc.) has fostered a culture where parties keep conflicts in-house. Varying accordingly with the significance of a conflict, the government's role can be problematic as they are both party and have absolute power when it comes to the final decision and its validation. This can lead to a loss of engagement and involvement from the other party in the negotiation. Interviewees described how mediators received many informal requests for information about the system/procedure, but this seldom led to an actual intervention request.

#### 2. *Conciliation board members*

Most of the CB members perceive the conciliation system as very valuable. They see the procedure as an important tool in preventing further escalations as well alleviating some of the conflict intensity. The procedure can be used to sometimes force a discussion between parties where there was no willingness to negotiate beforehand.

In general, there is a strong emphasis on local dialogue and prevention of CBs where possible. The outcome of the CB is always uncertain to the conflicting parties and can legitimize further employee actions if no agreement is reached. CBs can be perceived as a failure of the own dialogue and is thus not always a clear option for companies leading to many trying to keep the conflict in-house. Although not as expensive as litigation, CBs are still expensive, as they require a substantive number of people including management to spend an entire day at the CB.

Interviewees describe that they use the CB primarily to revitalize dialogue and negotiations at the organizational level by providing indications, recommendations and highlighting common ground between the parties.

A number of CB members indicate that conflicting parties request the CB too early, thus before depleting all opportunities for local dialogue. This is problematic, as the CB is a final step should local negotiations fail, otherwise there is a risk of undermining the CB's authority and relevance. Timing is also used as an important tool during the procedure. Sometimes, members postpone the CB date if they believe the conflict will solve itself at the local level. The cooling-off period after every CB is also very valuable when continuing local negotiations, as possible talking points have already been discussed during the CB.

Committee members relate the general decline in CB's to a current trend of further regulation. As an example, salary increases depended on indicative norms in the past while nowadays there are strict norms in place. Besides the declining number of CBs, respect for the procedure has fallen as well. To exemplify, no strike should occur before the CB has convened. Interviewees indicate that parties respect this agreement less and less. Employees and unions increasingly do not follow the steps outlined by previous agreements leading to frustrations of the employer and employers' federation. Similar to earlier findings, members raise questions regarding investment of resources as CB members perceived the mediators to be understaffed.

#### 3. *Conflicting parties*

All interviewed parties were positive about the existence of the CB and saw its value although they also raised some concerns regarding recent developments. Because of an increased presence of multinational companies, there is an evolution in the mandate of the company representatives at the conciliation board. In the past, involved unions/employees were able to negotiate directly with the people in charge. Nowadays, the present party often has to contact a board of directors or management abroad to get the necessary mandate should new topics arise. This also incorporates the danger of importing different corporate cultures where involved parties do not see social dialogue as essential. Larger companies within a sector also have the added complication that agreements made with them, can be seen as precedents for further negotiations in the smaller companies.

Users of the system agree that the CB should be a last step when confronted with a conflict and that its primary purpose is to revitalize the organizational dialogue.

Additionally, interviewees describe the importance for employers to perceive the system that can help prevent employee actions, as this is not always the case.

A final remark can be made regarding the mandatory nature of the CB, which is generally seen as a positive element but can make CBs useless and seem like a necessary hurdle when for instance parties are set on action or already know that no agreement can be reached.

## **3.3 Characteristics of the Mediators or Facilitators and the Third Party Procedures**

The mediators had an average age of 48 years and out of the 16 mediators employed by the Belgian Federal Public Service Employment, Labor and Social Dialogue, nine were female. The mediators had an average experience of 9 years in their role as a government-employed mediator. Previous experience as mediators varied strongly ranging from an extensive background in mediation to the minimum requirements of the role (stipulated further in the text).

Only two of these mediators are currently active in the public sector. Most mediators have a law degree with a minority coming from different educational backgrounds. In the past, the government provided additional training in negotiation and mediation but current budget restraints have led to the cancellation of these trainings. Thus, further education and training is, in effect, the responsibility of the individual mediator and relies on his/her own initiative. As a result, only half of the interviewed mediators reported to having followed at least one additional training in line with their current function.

The mediators do not actively save data related to their interventions; therefore, it is not easy to identify the precise number of interventions. The reluctance to save data stems from the confidential nature of these interventions, the opinion that the mediators' work is not easily quantifiable and the possible misrepresentation of these numbers (e.g. ending the intervention in a non-agreement does not mean the process failed). Interviewees indicated having vast experience, both with reconciliation and mediation.

#### *Selection, recruitment and evaluation*

Recently, the recruitment procedure was reformed. It used to rely exclusively on political appointments without a formal selection process. Social partners were informally consulted during this process.

As of 2009, selection and recruitment takes place through the government recruitment office. To be considered for the position, candidates need to meet the following requirements1:

Education and professional experience:

The selection procedure consists of an assessment center to test for cognitive abilities, knowledge of collective labor law, and a case presentation for a panel of experts.

1Stipulated by a new Royal Decree signed 27/10/2009; promulgated 19/11/2009.

Once recruited, an experienced mediator mentors the new mediator during their first year. The new mediator makes progress reports of experience gained and educational programs completed at regular intervals.

Mediators will also need to deliver a paper at the end of the first year analyzing a topic of interest to the team. The mentor and the director-general provides a final evaluation of the paper and a global report of the first year. This procedure is a condition for becoming a statutory civil servant.

There is no institutionalized evaluation of mediators or the system as a whole, based on a case-by-case basis. Interviewees provide different reasons for the lack of a structural evaluation. A first reason is the reporting line regarding social conflicts. The mediators report to the designated Minister of labor, thus the director-general did not design an evaluation system because he/she did not have the authority to evaluate the work of the mediators. A second reason is the demanding job requirements. Mediators reported having a very busy schedule and thus did not prioritize on evaluation the system. A final reason is involved parties might use the evaluation of the system/mediator during conflicts when it suits them best.

#### *Mediation approach*

Based on the interviews, we did not identify a shared mediation style within the well-structured procedures that exist for the CB. Two main reasons account for this finding: (1) no joint training, and (2) lack of structural dialogue and reflection among mediators to assess their mediation style. Their previous work experiences before joining Belgian Federal Public Service Employment, Labor and Social Dialogue result in a pre-existing individual style.

The individual mediators emphasize different aspects or vary in approach but do operate within the same broader structure aligning all mediators along the same procedure and general approach. Because the CB is a de facto partner of the mediator in the conciliation process, the styles and approaches of these players also influence the ultimate approach largely. The majority of mediators did agree that the mediator's role was not to actively propose ideas but to facilitate the discussion, guard the process and empower the social partners in the CB.

All mediators highlighted conversational and interpersonal skills such as empathy, listening and paraphrasing, as crucial to succeed. Although the main goal is to facilitate the discussion, mediators sometimes provide suggestions to the involved parties.

Opinions differed when asked about the preventative aspect of the mediator role. While some mediators did not see this as part of the larger structure, others saw this as an important aspect and referred to their social network as the most important tool in doing so. Maintenance of their social network was also subject to different opinions. Some mediators emphasized informal and constant contact while others preferred a professional distance from their social partners. Many mediators could not compare their own styles with others' because of the limited information shared between them.

#### *Evaluation by stakeholders of the facilitators/mediators and third party procedures*

Parties perceive the mediator generally as neutral and competent and all parties had sufficient trust in both the mediator as well as other members of the CB. Members describe the mediator as an important link in the system and as someone who should have sufficient knowledge about the subject matter whilst understanding both sides of the conciliation board. His role as chair of the joint committee is a major benefit in this sense.

Although generally seen as crucial in reaching a qualitative agreement, some downplayed their role and referred to the procedure itself as crucial. This is in accordance with the mediators' own reflections on the CB. The personality of specific mediators does have a substantial influence during mediation but is primarily summarized into taking a more active or passive stance during negotiations.

Mediators describe the profession itself as exhausting and socially isolated, because of the limited amount of contact between colleagues and demanding workrelated pressure. This pressure will only increase in the future due to attrition of mediators (retirement and other causes) and the current budgetary restraints preventing or limiting the number of new hires. These budgetary restraints affect the entire system's working, from hiring of mediators and translators to providing training and other support.

## **3.4 Description of the Facilitation and/or Mediation Process**

#### *Private Sector*

As mentioned earlier, agreements made in the joint committee result in a wellrounded procedure of requesting a mediation. If a party considers a conflict appropriate or severe enough, the request for a CB is filed. Finding an appropriate date for the committee can be tedious because of the schedules of the committee's members. This can lead to a waiting time of several weeks before the committee itself can take place. Timing also depends on urgency of the current conflict and thus a CB forms faster should employee action be imminent.

The CB usually takes place in Brussels at the Belgian Federal Public Service Employment, Labor and Social Dialogue's offices to ensure neutrality. The CB generally only lasts for one day at the most, sometimes until late at night. The precise procedure may differ slightly with respect to the involved mediator, but can be summarized as follows:

members will generally have already gathered information from their affiliated conflict partners before the CB commences. Given step two, the first step can be seen as 'pre-caucus'.

Employee/employer organization's representatives mainly propose the solutions, but alternatively the mediator may propose a solution if he/she sees fit. Because the CB generally lasts only one day, negotiations can continue into the night. Failing to reach an agreement results in a non-agreement that can then lead to employee actions. The outcome itself can be one of four categories:

## *Public Sector*

As noted in the previous paragraphs, there is no large presence of structured conciliation when compared to the private sector. There is a less strict regulation or standardization of procedures. The general mediation procedure in the public sector was written down in Committee A (Common committee for all government services), but practical realization of the intervention was left up to the individual mediator. The general procedure, based on our interviews, is as follows:

The mediator requested the attendance of government/political representatives during these meetings, otherwise negotiations would often falter due to lack of mandate.

#### *Evaluation by stakeholders of the mediators and mediation process*

#### 1. *Mediators/facilitators*

The mediators describe that both the system and the mediator are neutral in the interventions and actions. Their role as civil servant means that they do not have an interest in siding with one of their parties in the conflict, while the location in Brussels ensures it takes place on neutral ground.

The mediators credit the success of the conciliation procedure to the working of the system/procedure itself and the other participants of the CB. These members are active at the sector level and their collaboration transcends the organizational conflict in both time and scope. These partners are therefore required to enter future negotiations such as joint committees resulting in attitudes and expectations that are solution-focused. Mediators see a non-agreement in the CB often as a starting point for further talks rather than the end-point, because of the interdependency of the parties involved.

The mediators therefore see their main purpose in facilitating the discussion and guarding the process while they perceive the social partners and structure of the system as the key factor for success. Mediators perceive the organization of interventions at the organizational level directly, instead of having a CB at the sector level, to potentially undermine the relevance of sector dialogue and therefore undermine its functioning (including joint committee).

#### 2. *CB members*

The CB is best suited to handle conflicts regarding a more practical nature such as interpretation of previous agreements as opposed to conflicts based on matters of principle. The committee members were often present when they reached previous labor agreements. Hence, members can therefore provide solutions when conflicts revolve around interpretation or implementation of those agreements.

Interviewees indicate that they put less emphasis on exploring issues/interests underlying present conflicts. Nor is rebuilding of trust and relationships a primary focus of the CB. Interviewees describe this as a responsibility of the conflicting parties although the CB will provide recommendations and advice on how and what to discuss further.

At a CB, the conflict is lifted from the involved parties and their emotional circumstances and evaluated from a "helicopter view". In this sense, interviewees state that CBs not necessarily provide a solution to the conflict, but they do produce new and valuable insights or common ground, which in turn serve as a base for future negotiations. Interviewees describe that the process of coming to Brussels, experiencing the procedure and the fact that a third party takes the conflict seriously reduces emotions and conflict intensity on its own. Members of the CB can see this as a mediation/facilitation amongst the members of the CB themselves; however, parties at the organizational level can also describe it as a form of arbitration by the parties at organizational level.

Although preferences vary according to sector, interviewees perceived active involvement of the mediator as a positive experience. Members expect the mediator to propose solutions when needed; this requires sufficient authority as well as necessary knowledge about the sector and parties.

Interviewees note an evolution towards a more regulated and legislative society in which mutual understanding and trust seem to be of less importance. This can result in an increased presence of legal assistance at CBs. Presence of lawyers is tolerated or denied depending on sector, but universally seen as limiting the margins when reaching an agreement. Interviewees see this standardization and regulation as a threat to the CB's relevance as it would often come down to interpreting already stipulated guidelines.

#### 3. *Conflicting parties*

In accordance to earlier findings, interviewees see the CB is as a tool to provide new insights and perspectives or structural solutions to the conflict at hand. Committee members are too far removed from the conflict and its history to fully immerse themselves in the situation. When conflicts occur revolving around larger problems than the most recent conflict, current procedure is not an optimal fit. Interviewees perceive the information sharing during the first plenary session of a CB is as insufficient and information is lost in communications between all different levels of involved parties. In these cases, interviewees see direct mediation with conflicting parties as the better option to get to the core of the conflict.

Additionally, interviewees experience the procedure as tiring and long although no mention is made of this having a drastic effect on the reached agreement.

Because of the collective setting, the CB will try to reach an agreement by compromise where all parties are satisfied. Although the goal of compromise is to provide a win-win situation, it is said to often end up in a lose-lose situation. This can be prevented by actively working towards a solution in the time leading up to an CB and proposing this idea to the committee members who will then further discuss and elaborate on this idea.

Because of the moral authority of both the CB and the mediator, solutions proposed by the mediator might be agreed to whereas similar solutions at the organizational level would be rejected by the conflicting parties and can be a solution in politically delicate conflicts or negotiations.

## **3.5 Effectiveness of the System**

As mentioned earlier, the Belgian Federal Public Service Employment, Labor and Social Dialogue does not structurally document specific numbers regarding CBs as they do not want to create the perception that a non-agreement equals to a failure of the social dialogue.

There is no form of evaluation institutionalized and mediators do not structurally discuss cases among each other. A monthly staff meeting exists. Given the workload, mediators usually use this moment to inform each other regarding practical information such as new laws or the department's official standpoint on current affairs. If cased-based knowledge sharing takes place, mediators do so on an ad hoc basis. Due to their busy schedules and constant meetings and involvement in different sectors, mediators are in fact working within their own silo and have limited contact within their own organization.

With regard to evaluations of personal effectiveness, mediators mostly referred to procedural factors such as facilitating the discussion, general atmosphere during the negotiation, guarding the process and ensuring all parties feel that they are heard sufficiently. All these elements are necessarily in order to reach an effective agreement between the parties.

#### *Evaluation by stakeholders of the effectiveness of the mediation*

Interviewees see CBs as effective and working properly in their current form, taking into account their often-cited use as a stepping-stone for further negotiations. There are however concerns that the current system will no longer suffice in the future. Interviewees sometimes describe CBs and the larger procedure concerning social dialogue as conservative institutions that respond slowly to new demands or new types of organizations. Besides concerns towards future effectiveness, CBs are not seen as the optimal fit for acute conflicts due to attendance requirements. In addition, restricting the meeting to one day also limits resolutions in deeper conflicts to a certain extent.

Some interviewees make an additional remark in regards to knowledge about the goals and procedure of the CB. Involved parties note that from their experience education by unions was somewhat lacking and new managers were often not familiar with sector protocols.

## **3.6 Conclusions**

One cannot evaluate CBs without taking the larger system of social dialogue into account. Because of its long history and widespread use, it has become an institution known to all parties in the private sector. Its function of providing solutions as well as helping conflicting parties to deepen negotiations has become one of the cornerstones for the Belgian system in the private sector.

Involved parties support the system who generally see it as a crucial step in conflict development with a focus on prevention of strikes.

The public sector does not have a long-standing tradition of mediation. This provides an opportunity for the public sector, as they can analyze the strengths of the system in the private sector and use it to their own advantage.

Because of the additional responsibilities in joint committees, mediators are stretched thin as it is and further budget-cuts will quite realistically undermine the quality of conflict resolution throughout Belgium.

The current procedure has a very strong focus on resolving the acute nature of conflicts while underlying interests can receive less exposure. It can therefore be worthwhile to explore options allowing for a more direct mediation between parties if needed, greater attention to post-conciliation activities or to have a more flexible approach to timing instead of trying to restrict the CB to just one day.

Concerns are also raised about the system's ability to respond to market changes and organization of tomorrow, companies as Deliveroo for example pose difficulties when trying to fit them into the current procedures.

Instituting a formal way of evaluating the procedures, ideally incorporating perspectives of all parties, could allow the Belgian Federal Public Service Employment, Labor and Social Dialogue to improve on their services and adapt to changes and demands more rapidly.

Finally, investing in mediation training (both for conflicting parties and mediators), and structural dialogue among mediators can further improve a consistent and effective process.

3 Mediation and Conciliation in Collective Labor Conflicts … 45

**Acknowledgements** Dimitri Knockaert, Lieve Verboven, Sonja Broucke, Martin Euwema, Valeria Pulignano.

## **References**

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# **Chapter 4 Mediation and Conciliation in Collective Labor Conflicts in Denmark**

**Hans Jørgen Limborg, Ulrik Gensby and Søren Viemose**

#### **The Case**

#### *The mediation process, mediator role and outcomes*

One Danish company—we will call it 'Industry 1'—recently established a co-operative committee. The company employs around 400 people of which approx. 300 employees are organized in a trade union covered by a collective agreement, covering almost all blue-collar workers. During the first years of operating with the new committee structure the HR director and CEO experienced a long period of limited use and value of the committee. In the perspective of the CEO, the committee was known because of its name, and not from the merits gained from engaging in committee meetings and initiatives. The lack of use and differences in the perception of the value of The Co-operation Committee created frustration from both unions and management. The CEO and HR officer describe that they found themselves in a 'locked' situation, in which the relationship between the parties was characterized as an 'us' and 'them' relationship. The situation slowly escalated into a conflict of mistrust between the workplace parties, where the local unions lost faith in the management's ability to collaborate since they experience that the management came to meetings unprepared and were using The Co-operation Committee to inform about management decisions about changes in the workplace without inviting to have a dialogue around the content and consequences of the decisions being made. The unions argued that The Co-operation Committee was used in a wrong way, and that it was not an arena that the management could use to impose solutions. The management on the other hand argued that the committee meetings were

H. J. Limborg (B) · U. Gensby · S. Viemose Copenhagen, Denmark e-mail<EMAIL_ADDRESS>
© The Author(s) 2019

M. Euwema et al. (eds.), *Mediation in Collective Labor Conflicts*, Industrial Relations & Conflict Management, https://doi.org/10.1007/978-3-319-92531-8\_4

unproductive and used to discuss minor issues and personal matters without consideration of the problems related to the work organization and production. Both the unions and CEO describe how they saw themselves in a position where they were not able to find a way forward. The workplace parties did agree that they needed help to take the next step. The Co-operation Consultants were then contacted. This contact lead to a joint meeting between the workplace parties that was facilitated by The Co-operation Consultants. At the meeting the consultants were used to set a common agenda for The Co-operation Committee based on a shared understanding of the purpose and specific function of The Co-operation Committee. In addition, the consultants worked with both parties to develop a set of principles that could guide productive discussions that were sensitive to the underlying interests of both parties in operating the committee, and that could help re-establishing trust between the parties.

One of the first issues being emphasized by the consultants was the rules for having and operating a co-operative committee (e.g. number of meetings, setting agendas, productive discussion guidelines, relevant issues etc.). This ensured a common knowledge ground that gave clarity around the goal and use of such committees in industry. Another issue raised by the consultant was the atmosphere around the committee meetings. By working concretely with the priorities to identify what types of collaboration areas that should be prioritized in the company and addressed during committee meetings, the meetings were given new status and mandate. As a result, the consultants put several work groups into action that should provide input to important areas of prioritization. These work groups were then followed up over time to ensure a continued relation between the consultants and the workplace. None of the workplace parties knew the co-operation consultants who facilitated the mediation process beforehand. The consultants were perceived as a neutral mediator-team that were able to get everyone on 'the same page', while they sustained a constructive tone during the facilitation of meetings and in mediating the different views about the motives for using the committee between the parties. The intermediary role of the consultants differed from the traditional mediator role. Rather the consultants took the role as a preventive facilitator, by taking part in the meetings and imposing structure and content to the discussions and brought the parties toward mutual understanding and win-win decision-making.

Rather than focusing on the initial positions reflecting the 'organizational dead-lock' around the co-operation committee, the workplace parties were guided towards common understanding of the situation and were given some simple and basic things to work with that could help them see things through a focus on the common interests of the company (e.g. collaboration areas that should be prioritized, and competitive position). The focus of the preventive facilitation was to re-establish trust and meaning with the discussions in the co-operation committee. Comprising how to perform good meetings, how to mediate and reach mutual understanding and avoid focusing on small and personal issues did qualify the discussion in the committee. Importantly, the establishment of work groups with participation of different representatives from the company has helped signal that the management is interested in the input from the workers and that the workers believe that the management will address these inputs and consider them when planning organizational changes. The work groups will provide specific input to three prioritized topics of collaboration; (1) company culture, (2) work retention and (3) the establishment of a new work site. Indeed, both parties develop new forms of interaction and are more capable of managing conflicts and negotiations, due to the mediation. One union member explains how he has become more aware of the management perspective and recognize their concerns although he does not always agree in their perspective. The HR officer recognize how the unions have become better at working with the management without getting stocked in a conflict approach. Both parties explain that a consensus orientation is important to move things forward. Thus, both parties have become more aware of listening to each other's concerns and the common interest of having a joint committee as an arena for addressing selected topics of collaboration.

## **4.1 Introduction to Collective Conflict Mediation on the Danish Labor Market**

## *4.1.1 The Danish Industrial Relation System*

The industrial relation (IR) tradition is often referred to as the 'Danish Model'. The model is based on a tri-partite social partnership between the Danish state, and employers' organizations and employee trade unions. The Danish IR system may be classified within the pluralist IR perspective, where of employer and employee subgroups are organized in associations and trade unions that act on behalf of their member interests to create co-operation, negotiation and facilitate compromise on employment terms (Salomon, 2000). Central to the Danish IR system is the substantial role that employers and employees play in influencing the combination of a flexible employment conditions, welfare schemes and labor market policies through collective bargaining (Scheuer, 1998). The Danish IR system is typically presented as four distinct features, including (1) close links between the social partners of the labor market and the state (2) centralized bargaining to conclude collective agreements between employers' and employee organizations, (3) a high rate of unionization among employees, (4) and collective agreements serving as a basic mechanism for IR regulation (Jensen, Madsen, & Due, 1993).

The Danish labor market is one of the most highly organized (Jensen, 2012). A high degree of organization is essential for the legitimacy and efficiency of the Danish collective bargaining system. In 2015, the percentage of employees organized in trade unions were 67.7%. With a coverage rate of 80%, the collective agreements are ranking comparably higher than seen in other EU Member States. The coverage rate stood at 85% for several decades and has been relatively stable up until 2010. However, in recent years the coverage rate has tended to decline. Today the coverage rate sits at 71% in the private sector and 100% in the public sector (Denmark Statistik, 2018).

Although described as a tripartite structure, the Danish state and political system usually take a relatively limited role in IR regulation, and rely on the ability of the parties to reach an agreement on their own (Jensen et al., 1993). Any collective agreement is binding in accordance with the basic agreements reached between the social partners in the private as well as public sector. Approximately 50% of the private employers are organized with the most comprehensive organization being the Confederation of Danish Employers.

In contrast to other European countries, the Danish IR-system includes an important normative and political alignment with a preference for IR regulation via collective bargaining and agreements, rather than regulation through individual contracts and legislation (Jensen et al., 1993). The convention being that trade unions, private employers, and public employers form an agreement on wages and other working conditions, and that the parties are accountable in relation to these agreements. Quite many non-organized private employers join these collective agreements. Consequently, the legislation, which consists of rules applying to certain groups of employees (e.g. regulation of salaried workers) as well as to specific matters (e.g. regulation on holidays) is of minor importance compared to some other countries.

## *4.1.2 Institutional Background and Historic Compromise*

The Danish IR system-orientation of collective agreements traces its origins to a series of industrial disputes between employers and employees, also referred to as the 'September Compromise', 1899 (Jensen et al., 1993). The Danish IR system of collective agreements has evolved as a system, that builds on centralized collective bargaining negotiated at the main organization-level. This historical development has ensured a relatively high degree of homogeneity, regarding pay and employment terms. However, a turn in the Danish IR system has shifted the collective agreement system towards more 'centralized decentralization' (Andersen & Mailand, 2005). Importantly, every sector on the Danish labour market have combinations of flexibility and security, but not all employees are covered by both flexibility and security to the same extent (Mailand, 2009). Decentralized collective bargaining give employer and employee representatives increased opportunities to negotiate employment terms at the workplace level (Blanplain, 2007). In 1908, a government body formed the basic principles for the solution of conflicts about collective agreements; and a distinction was drawn between 'conflicts of interests', where the matter in dispute is not covered by a collective agreement, and 'conflicts of rights'.

In 'conflicts of interests' the parties are free to take collective industrial action (strike or lockout); but when a collective agreement has been concluded, they are under an 'obligation of peace' if the agreement is in force. An alternative procedural system has been set up, and a 'conflict of rights' must be settled through negotiations at either the local, the organizational or the central organizational level. If the dispute is not resolved in this way, a dispute concerning the interpretation of the agreement must be referred to industrial arbitration and a dispute concerning a breach of the agreement must be brought before the Labour Court. The Labour Court is thus the main dispute-resolving body in relation to labour market conflicts. It has existed since 1900 and was established as a proper court of law named The Permanent Court of Arbitration in 1910. There are special rules concerning appointment of judges and powers, as the social partners are involved in this process. Since 1964 it has been named the Labour Court. The regulation has been updated several times and the newest act on Labour Court was passed in 2008 (http://www.arbejdsretten.dk/ generelt/labour-court.aspx).

## **4.2 Characteristics of the Danish Collective Mediation System**

## *4.2.1 Negotiations on Different Levels—The Ladder of Conflict Resolution*

The Danish collective mediation system is based on two essential pillars; (i) *the right to use conflicts* in terms of strikes or lock-out when settling a general agreement, and (ii) '*the obligation to peace*', when the agreement is in function. A key feature of the Danish conflict resolution system is that none of the parties can refuse to participate in meetings with the aim of settling a conflict, whether it be a matter of dispute of interest or right. This is stated in 'The rules for the Hearing of Industrial Disputes' adopted by the Employers' Confederation and the Danish Federation of Trade Unions and the Rules for the Hearing of Industrial Disputes' also referred to as 'the Norm'. The existence of the special negotiation procedure means that only a minor part of this type of conflicts are continued before judicial dispute-resolving bodies, and it would normally be regarded as a breach of agreement if a party fails to participate in conciliation (Limborg, Jørgen, Albertsen, & Navrbjerg, 2014).

The *first step* in conflict resolution is to reach for a local agreement on the issue, through negotiations between the employee representative (union) and the management. The negotiations must be documented and of course the take their point of departure from any existing agreement. In the event of failure to settle the dispute by local negotiation, the allegedly injured party will submit a petition for conciliation specifying the subject of the dispute. *The second step* will then be the setting-up of a conciliation committee, normally each party (Union and employers' association) to the agreement will appoint a member each. The conciliators need not be impartial, but they may not, however, have any personal interest in the matter to be considered. The discussions with the committee are rather informal and should take place on the firm's premises. In this case, the employee representative and the manager are participating as observers. The organizations of the social partners or their appointed conciliators will lead the process. The result of the conciliation is forthwith committed to a minute book, and if the conciliators are unanimous the committee may settle the dispute once and for all at variance with the wishes of the parties directly involved. If the conciliation is ended without a result, the consideration of the dispute may be continued to *the third step*: a 'meeting of the organizations'. These meetings are usually attended by several representatives from each organization and, as in the case of the conciliation committee, the board of negotiators may decide the matter if unanimous.

Most conflicts are resolved within these first three steps. An important element of the stepwise procedure—as it is described in "the norm"—is that all parties are committed to act as fast as possible. In situations where time is of the essence, it is even possible to use an alternative procedure, 'the joint meetings' where everybody, including representatives of the central organizations, participate at the same time. The flexibility of this system and the ability to act fast and bring forth solution to as well trivial as more complex matters, is one of the important strength of the system, and the reason that it is still considered extremely successful even after more than 100 years.

## *4.2.2 Industrial Arbitration—The Fourth Step*

In more complex cases where the mediation sought for in the first three steps is not reached, the case will be brought to 'Industrial Arbitration'. The industrial arbitration tribunals are not covered by the general Arbitration Act but are governed by the Labour Court Act and provisions in the Rules for the Hearing of Industrial Disputes adopted by the Employers Confederation and the Federation of Trade Unions or similar general agreements as well as stipulations in the collective agreements in question. These are usually modelled after the Rules for the Hearing of Industrial Disputes. Usually the arbitration tribunals are set up for hearing a single, already existing case, in which case each party normally appoints 2 arbitrators and the President of the Labour Court one (or in some cases 3) umpire(s) (opmand). Anybody could be appointed as arbitrator if they have no personal interest in the matter. Most often the umpire is a judge with experience from labor disputes appointed from a small circle of legal professionals.

A special area for the industrial arbitration tribunals involves cases concerning dismissals of employee representatives (union), pleading that the dismissal was non-objective. Furthermore, some agreements contain provisions that refer cases to arbitration on a general basis, and, besides, it frequently occurs that the parties specifically agree to have the industrial arbitration tribunal consider the matter of breach of agreement about the question of interpretation. A few permanent industrial arbitration tribunals exist, such as the permanent Board of Dismissals, which was set up in accordance with the General Agreement between the Employers' Confederation and the Federation of Trade Unions to decide cases involving non-objective dismissals.

The industrial arbitration tribunals are concerned, first and foremost, with disputes over the interpretation of the collective agreements, which the parties have been unable to resolve, by negotiation in accordance with the agreement. It is considered as a breach of agreement, if a party fails to co-operate in the implementation of the arbitration proceedings. The industrial arbitration tribunal is presided over by the umpire, and the actual presentation to the tribunal is done verbally and in principle in the same manner as before the ordinary courts of law. However, the representatives of the parties are not always lawyers, and the hearing can be rather informal.

## *4.2.3 The Labour Court*

If a dispute relates to a specified violation of an agreement, the conflict resolution will follow another path, first step again being local negotiations and further a meeting between the central organizations and a final option of being taken up by the Labour Court. The Danish Labour Court is a special court of law. The Court is seated in Copenhagen, but the jurisdiction includes the whole country.

Cases can only be brought by and against the relevant employers and employee organizations, regardless of whether the breach was committed by or against single members of either organization, or the collective industrial action was threatened or commenced by or against single members of either organization. Where an organization is a member of a comprehensive organization, the case must be conducted by and against the latter.

In recent years, less than 20 cases per year were subjected to a full-court hearing. A somewhat larger number of cases about 100 per year, were concluded by the parties entrusting the decision to the judges who considered the cases in the preliminary meetings.

## *4.2.4 Procedure of the Court*

When court is held by the President, one of the vice-presidents or in certain cases the Head of Secretariat alone, the parties (each represented by a comprehensive organizations) exchange complaints and defenses pleas and additional pleas. The judge may ask the parties to obtain further statements or information, and the case may, if necessary, be postponed, setting a later date for a preliminary meeting. This procedure includes an investigation of a possible amicable solution, in a clear majority of cases the parties manage to reach a settlement—sometimes through the intervention of the judge and are thereby concluded. If the judge can ascertain that it is impossible to reach an agreement between the parties, a date and time is set for a full-court hearing.