Mediation in Dutch employment disputes: how it works

Mediation in a Dutch employment dispute works best when you use it early and for a conflict that can still be solved by talking: a strained relationship with a manager, a conflict that has led to sick leave, or the terms on which you part ways. It is not the right route if the facts first need to be established, if there is a serious imbalance of power, or if one side only uses it to build a file.

Two points often decide the outcome. If the employee is on sick leave, mediation runs alongside the reintegration obligations and does not replace them. And if the employment ends, the agreement must be drafted with the right wording and deadlines, because that determines the employee’s right to unemployment benefit and the transition payment.

What is mediation in an employment dispute?

Mediation is a structured conversation between employer and employee, led by a neutral mediator. The mediator does not decide anything and does not give either side legal advice, but helps both of you find a solution you can both accept.

Participation is voluntary, and each party can end the mediation at any time. The mediator guides the conversation, makes sure both sides are heard and helps you move from positions (“I want to leave with a year’s salary”) to underlying interests (“I need time and income to find a new job”). Solutions that come from the parties themselves are often more practical than a court decision, because they can cover things a court cannot order, such as an apology, a new reporting line or a jointly agreed message to colleagues.

In an employment context, mediation is used in two very different situations. In the first, both parties want to continue working together and need to restore the relationship. In the second, they have concluded that the employment should end and use mediation to agree on the terms. Be clear from the start which of the two it is, because it changes the conversation completely.

Is mediation compulsory in the Netherlands?

No. The Netherlands has no general statute that requires mediation before you go to court. Mediation is based on an agreement between the parties and the professional rules of the mediator.

A court can, however, suggest mediation during proceedings, for example at the oral hearing in a dismissal case at the subdistrict court (kantonrechter). Each party or its lawyer can also propose it. If the parties agree, they choose a mediator through the court’s mediation desk and the court temporarily puts the case on hold. If the mediation leads to an agreement, the case ends. If it fails, the proceedings continue. The Dutch judiciary describes this scheme, known as mediation alongside court proceedings (mediation naast rechtspraak), on rechtspraak.nl.

For court-referred mediation, the mediator must be registered with the Legal Aid Board (Raad voor Rechtsbijstand). Outside that scheme anyone can call themselves a mediator, so check the mediator’s registration and experience with employment conflicts. The main professional register in the Netherlands is kept by the Mediators Federation Netherlands (Mediatorsfederatie Nederland, MfN), which sets training requirements, a code of conduct and a complaints procedure.

An employment contract or a company policy sometimes contains a clause that the parties will first try mediation. Such a clause does not take away the employee’s right to go to court, and it does not stop statutory deadlines from running.

When does mediation work well?

Mediation works well when both parties have an interest in a solution and are willing to talk. The typical case is a conflict about behaviour, communication or expectations rather than about a single legal question.

Examples we see regularly: an employee and a new manager who clash about working methods, a team in which a reorganisation has damaged trust, an employee who reports sick after a difficult performance review, or an employer and a senior employee who both want to end the relationship but disagree on the terms. In each of these, the legal position matters, but the solution lies mainly in what both sides are prepared to do.

Mediation is also useful where the parties have to keep dealing with each other, for example in a small company, in a specialised sector where people meet again, or where a non-compete clause or confidentiality obligations continue after the employment ends. A negotiated outcome keeps more options open than a judgment.

Finally, mediation is private. Court hearings are in principle public and judgments are often published in anonymised form. In mediation you decide together what is shared and with whom, which can matter for both the company and the employee’s reputation.

When is mediation not the right choice?

Mediation is not suitable where one party cannot negotiate on an equal footing, where the dispute is about a clear legal right, or where the other side is not acting in good faith. In those cases a lawyer and, if necessary, the court give better protection.

A serious imbalance of power is the first warning sign. An employee who has experienced harassment, intimidation or discrimination should not be put in a room with the person responsible and asked to find a compromise. The employer then first has a duty to investigate the complaint and to provide a safe working environment. An internal confidential adviser or a complaints procedure is often a better first step.

Second, some questions are simply legal. Whether the statutory minimum wage has been paid, whether a non-compete clause is valid or whether a dismissal for an urgent reason (ontslag op staande voet) holds up are matters a court decides. You can still negotiate about the consequences, but not about the law itself.

Third, mediation fails if one party uses it to gain time or to collect statements for a later case. Signs of this are repeatedly postponed meetings, a representative without authority to decide and proposals that do not move at all. It is legitimate to end mediation in that situation, preferably after recording in writing why you are doing so.

Finally, where facts are disputed, for example whether an employee really committed the misconduct he is accused of, the facts first need to be established. A mediator does not investigate and does not hear witnesses.

How does mediation fit with sick leave and reintegration?

If an employee is on sick leave, the reintegration rules continue to apply during mediation. The company doctor (bedrijfsarts) assesses whether the employee is unfit for work, and mediation is one of the measures that can help the employee return.

Conflicts at work often lead to sick leave. The company doctor then has to assess whether there is real incapacity for work or a work-related conflict in which the employee is able to work but not in the current situation. The latter is often called situational incapacity for work (situatieve arbeidsongeschiktheid). Company doctors use a professional guideline for this, and they regularly advise a time-out followed by mediation.

Under the Gatekeeper Improvement Act (Wet verbetering poortwachter), the employer and employee must draw up a plan of action for the return to work, based on the company doctor’s problem analysis. Mediation can be part of that plan. The duty to reintegrate continues while the mediation is ongoing: the employee must remain available for suitable work, and the employer must continue to look for it.

An employee who without good reason refuses to cooperate with reasonable measures aimed at returning to work, including the plan of action, loses the right to wages for the period of that refusal (Article 7:629(3) of the Dutch Civil Code (BW)). Refusing a mediation that the company doctor has advised can fall under this, depending on the circumstances. The employer, in turn, must make a genuine effort: the Employee Insurance Agency (UWV) can impose a wage sanction of up to a further year if reintegration efforts were insufficient.

If employer and employee disagree about the employee’s fitness for work or about the reintegration efforts, either of them can ask the UWV for an expert opinion (deskundigenoordeel). That is often a useful step before or alongside mediation, because it gives both parties an independent view on the facts.

How does mediation affect a dismissal on ground g?

If the working relationship is seriously and lastingly disturbed, the employer can ask the subdistrict court to dissolve the employment contract on that ground (Article 7:669(3)(g) BW). The court will look closely at whether the employer tried to repair the relationship, and mediation is often the first thing it asks about.

The court only dissolves the contract on this ground if the relationship is so disturbed that the employer cannot reasonably be expected to continue it, and if reassignment to another suitable position within a reasonable period is not possible or not appropriate (Article 7:669(1) BW). An employer who has not made any serious attempt to improve the relationship, for example by offering mediation, runs the risk that the court rejects the request because the disruption is not yet lasting.

Conversely, an employee who refuses every attempt at mediation weakens his own position, because it can show that the relationship is beyond repair. A refusal for a good reason, for example because the employee is still too ill according to the company doctor or because the conflict involves harassment, is judged differently.

If the disruption was caused mainly by seriously culpable conduct of the employer, the court can award the employee a fair compensation (billijke vergoeding) on top of the transition payment (Article 7:671b BW). How the employer behaved during mediation can play a role in that assessment.

What does the mediation process look like?

A mediation usually starts with separate intake conversations, followed by one or more joint sessions and ends with a written agreement. The number of sessions depends on the conflict and on how quickly the parties move.

The mediation agreement

Before the first joint session, both parties sign a mediation agreement (mediationovereenkomst) with the mediator. It records that participation is voluntary, that the discussions are confidential, how the costs are divided and that each party may end the mediation. Read it carefully: the confidentiality clause in particular determines what you can later use in court.

The sessions

In the first joint session the mediator explains the ground rules and each party describes the conflict from its own perspective, without being interrupted. The mediator then helps you identify the issues that need to be solved and the interests behind them. Sometimes the mediator speaks to each party separately, which can help if emotions run high or if one side wants to test an idea without committing to it.

Lawyers can take part in the sessions, but often they stay in the background and advise their client between sessions. That works well if the dispute is mainly about the relationship. If the discussion is about ending the employment, it is usually wise to have your lawyer check each proposal before you agree to it, because the details have legal and financial consequences.

The outcome

If the parties reach agreement, the mediator or the lawyers put it in writing. If they do not, the mediation ends and each party is free to take other steps. Nothing that was said can then be used against you if the confidentiality clause has been properly drafted.

How should you prepare for mediation?

Know what you need, what you can give up and what happens if the mediation fails. Good preparation prevents you from agreeing to something under pressure that you later regret.

Collect the relevant documents: your employment contract, the applicable collective agreement, performance reviews, emails and letters about the conflict and, if you are on sick leave, the reports of the company doctor. Make a short timeline of events. That helps you tell your story calmly and prevents the discussion from getting stuck on details.

Then think about your alternatives. What would you realistically achieve if the matter went to court, how long would it take and what would it cost you in time and stress? This comparison is the benchmark for every proposal in mediation. A lawyer can give you an honest assessment of your legal position before you start, so that you do not overestimate or underestimate it.

Employers should make sure that the person who attends the mediation is authorised to take decisions, or can obtain approval quickly. Few things undermine a mediation as much as a representative who has to go back to the board for every step.

Is what you say in mediation confidential?

In principle, yes. The mediation agreement usually provides that the parties and the mediator keep the discussions confidential and that the mediator cannot be called as a witness. Dutch courts generally respect such agreements.

That confidentiality is contractual, not absolute. It binds the parties who signed the agreement and applies to what was said and written for the purposes of the mediation. Facts that were already known, or documents that exist independently of the mediation, do not become confidential simply because they were discussed. For cross-border disputes, EU Directive 2008/52/EC on mediation adds a statutory protection: in principle, a mediator cannot be compelled to give evidence about what took place in the mediation.

Be careful with what you share outside the mediation as well. Discussing the sessions with colleagues or on social media can breach the agreement and damage trust at the moment it is most fragile.

How do you record the agreement?

An agreement reached in mediation is usually laid down in a settlement agreement (vaststellingsovereenkomst) under Article 7:900 BW. Once signed, it binds both parties like any other contract.

If the employment continues, the agreement records what each party will do: changes to tasks or reporting lines, how communication will take place, the reintegration steps and a date for an evaluation meeting. Keep it concrete. Vague undertakings such as “improve communication” give no guidance if the conflict flares up again.

If the employment ends, the agreement must cover at least the end date, the notice period, the final settlement of wages and holiday pay, the transition payment (transitievergoeding) or a higher severance payment, and any non-compete or confidentiality clause. For the employee’s right to unemployment benefit from the UWV, it matters that the agreement states that the initiative came from the employer, that there is no urgent reason for dismissal and that the notice period has been observed. An end date that does not respect the notice period can lead to a delay in the benefit.

An employee who signs a written agreement to end the employment may revoke it within 14 days without giving reasons (Article 7:670b BW). If the agreement does not mention that right, the period is three weeks. Employers should therefore include this in the agreement.

If the mediation took place alongside court proceedings, the parties can ask the court to record the agreement in an official report of the hearing (proces-verbaal). Such a report can be enforced like a judgment (Article 87 of the Dutch Code of Civil Procedure (Rv)), which gives extra certainty if you fear that the other side will not comply.

Do deadlines keep running during mediation?

Yes. Mediation does not stop the statutory deadlines in employment law, and a missed deadline cannot be repaired afterwards. Check them before you start.

The most important are short. An employee who wants to challenge a notice of termination or a summary dismissal must file a request with the subdistrict court within two months after the employment ended (Article 7:686a(4) BW). A request for the transition payment must be filed within three months after the end of the employment. Claims for unpaid wages become time-barred after five years (Article 3:308 BW), but evidence becomes harder to find as time passes.

If these deadlines are approaching, the parties can agree in writing to suspend the mediation until the request has been filed, or the employee can file the request to protect his position and ask the court to put the case on hold while the mediation continues. Do not rely on an informal promise that the other side will not invoke the deadline.

Who pays for the mediation?

In a conflict between employer and employee, the employer often pays for the mediator, but that is a matter of agreement. The division of costs is recorded in the mediation agreement.

In court-referred mediation, the parties in principle share the mediator’s fee equally. A subsidised start contribution covers the first hours with a participating mediator. Depending on income, an employee may also qualify for subsidised mediation through the Legal Aid Board. The fees of the lawyers who advise each party are usually borne by that party itself, unless the parties agree that the employer contributes, which is common in exit arrangements.

In summary

• Mediation is voluntary and works best early, when both parties want a solution and can negotiate on an equal footing.
• It is not suitable for harassment, a clear legal right or a dispute about facts that first need to be established.
• During sick leave, the reintegration obligations continue; refusing a reasonable measure such as advised mediation can affect wages.
• Record the outcome in a settlement agreement; if the employment ends, the wording determines the right to unemployment benefit.
• Mediation does not stop the two-month and three-month deadlines in employment law.

Frequently asked questions

Law & More advises employers and employees before, during and after mediation, and drafts the settlement agreement that records the outcome.

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