Mediation

ILO’s definition:

Grievances and conflicts are an inevitable part of the employment relationship. The objective
of public policy is to manage conflict and promote sound labour relations by creating a
system for the effective prevention and settlement of labour disputes. Labour administrations
typically establish labour dispute procedures in national legislation. A key objective of
effective systems is to ensure that wherever possible, the parties to the dispute resolve it
through a consensus-based process such as conciliation and mediation, before reverting to
arbitration and/or adjudication through a tribunal or labour court1.

Conciliation and mediation are procedures whereby a third party provides assistance to the
parties in the course of negotiations, or when negotiations have reached an impasse, with a
view to helping them to reach an agreement. While in many countries these terms are
interchangeable, in some countries a distinction is made between them according to the
degree of initiative taken by the third party.

Arbitration is a procedure whereby a third party (whether an individual arbitrator, a board of

arbitrators or an arbitration court), not acting as a court of law, is empowered to take a
decision which disposes of the dispute.

Specialised labour adjudication is a procedure whereby ordinary courts on special labour

courts settle finally any disputes over rights and obligations.

Voluntary and compulsory conciliation/mediation

Conciliation/mediation may be voluntary or compulsory. It is voluntary where the parties are

free to have recourse to it or not. It is also voluntary where it is undertaken by mutually
chosen private third parties, outside the machinery established by the government or by law.
In some cases, the law requires that both parties consent to or initiate the use of conciliation.

Conciliation/mediation is compulsory where the parties to a labour dispute are required to

have recourse of it. Compulsory conciliation/mediation can be used as a means of ensuring
that the hostile parties to a labour dispute come together at the negotiating table. Compulsion
may therefore be preferred where the labour relations system is not well developed and/or in
cases where the parties are not used to negotiating with each other. Conciliation is also often
compulsory in systems which include compulsory arbitration (see Compulsory arbitration
below).

Another significant reason for requiring recourse to conciliation/mediation in interest disputes

is to limit, and if possible prevent recourse to industrial action. A strong link between
conciliation/mediation and industrial action can be made by requiring the parties to give
advance notice of industrial action to the conciliation authority, or by making it illegal to take
industrial action without first endeavouring to resolve a dispute by means of conciliation.

1
https://www.ilo.org/ifpdial/areas-of-work/labour-dispute/lang--en/index.htm
A requirement to engage in conciliation/mediation may be based on any of the following, or a
combination of them:

 an obligation to notify the competent authority of a dispute;

 a requirement to report disputes to the authorities, who may then be empowered to
initiate conciliation/mediation proceedings and/or to require the attendance of the
parties at such proceedings;
 a restriction on the choice of the third party called upon to conduct the
conciliation/mediation;
 a requirement to participate in conciliation/mediation;
 the prohibition of strikes and lockouts before a conciliation/mediation procedure has
been resorted to and completed;
 an obligation to adhere to an agreement concluded during conciliation/mediation;
 in the case of rights disputes, the requirement to have undergone conciliation before
the dispute can be considered by a court or tribunal.

Systems which require participation in conciliation also sanction failure to comply with this
requirement. A party may be liable to a fine for failing to appear without good cause. A party
that does not attend may run the risk of the dispute being declared unresolved, thereby
leaving the other party in a position to move towards industrial action. Or the dispute
settlement body may have the power to award costs against a party which has failed to
appear. In systems which adopt this approach, failure to appear may also be deemed an unfair
labour practice.

One commonly held view in this respect is that there is little purpose in making conciliation
proceedings compulsory as there is not much chance of achieving agreement if one of the
parties is recalcitrant. Others consider that all efforts should be made to avert industrial
conflict and that the parties to a dispute should therefore be obliged to submit to these
procedures, even if agreement at the end of the procedure has to be voluntary.

ILO’s related conventions and recommendations on labour dispute

resolution in general, and mediation/conciliation in particular

1. Convention No. 98, Right to Organize and Collective Bargaining, 1949:

“Article 3: Machinery appropriate to national conditions shall be established, where necessary, for
the purpose of ensuring respect for the right to organise as defined in the preceding Articles”.

2. R092 - Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92)

Voluntary Conciliation

1. Voluntary conciliation machinery, appropriate to national conditions, should be made available to assist
in the prevention and settlement of industrial disputes between employers and workers.
2. Where voluntary conciliation machinery is constituted on a joint basis, it should include equal
representation of employers and workers.
3.

 (1) The procedure should be free of charge and expeditious; such time limits for the proceedings as
may be prescribed by national laws or regulations should be fixed in advance and kept to a
minimum.
 3. Recommendation No. 130, The Examination of Grievances, 1967 (No.
130)
17. Where all efforts to settle the grievance within the undertaking have failed, there should
be a possibility, account being taken of the nature of the grievance, for final settlement of
such grievance through one or more of the following procedures:

 (a) procedures provided for by collective agreement, such as joint examination of

the case by the employers' and workers' organisations concerned or voluntary
arbitration by a person or persons designated with the agreement of the employer
and worker concerned or their respective organisations;
 (b) conciliation or arbitration by the competent public authorities;
 (c) recourse to a labour court or other judicial authority;
 (d) any other procedure which may be appropriate under national conditions.

4. Convention No. 154, Promoting collective bargaining [1981]

“ Article 5.2.e : bodies and procedures for the settlement of labour disputes should be
so conceived as to contribute to the promotion of collective bargaining”

5. Many other guidelines, such as Labour Dispute Systems: Guidelines for improved
performance

Conciliation/mediation services
Where disputes cannot be prevented or resolved through dialogue between workers and
employers, conciliation/mediation represents the next step in the process. It is possible, however,
for conciliation/mediation to take place at any time, even before internal procedures have been
exhausted.
CHAPTER 6