In the heated reality of many companies, interests clash. Employees against employers, staff against management, works councils between the fronts. While court proceedings and escalation have long been regarded as the predominant mechanisms for conflict resolution, mediation is opening up new ways of reaching an understanding, including in a company context. But what can mediation achieve in the conflicting areas of interest representation, power imbalance and works constitution? And how do works councils position themselves within this sensitive framework?
Between frontline position and mediation
Works councils face a twofold challenge: on the one hand, they are supposed to assert the interests of the workforce and, on the other, negotiate constructively with management. This role often creates a balancing act between confrontation and cooperation. Mediation is often viewed with suspicion – on both sides.
While employers occasionally hope that a mediator can bring the “stubborn works councils” to their senses, works councils in turn fear losing their assertiveness and legitimacy by involving external mediators. Trade unions are sometimes critical of the process because they fear that it could “de-emotionalize” conflicts and thus undermine strong disputes.
But these prejudices are not tenable if mediation is used correctly.
Building trust through impartiality
A key aspect for the success of in-house mediation is the mediators’ adherence to strict impartiality. Especially in a power imbalance, for example between the works council and company management, a fair process is needed that gives both sides the space to listen objectively, change perspectives and find creative solutions.
It is important that works councils are equally involved in the selection of the mediator. Only in this way can the process be perceived as fair and actively supported. Mediation must not appear to be a covert instrument of power of a contractual partner, because transparency is the basis for trust.
Mediation as a bridge
Works councils have long assumed mediating roles, often unconsciously. Between colleagues, between departments, between staff and management. In small companies, where personal relationships dominate, this role is often easier. But mediation can also be effective in large corporations if it is used at an early stage and professionally supported.
Works councils need to know exactly what their role is. If you act as a partisan representative, you cannot act as a neutral mediator at the same time. But knowledge of mediation, techniques such as active listening, changing perspectives and questioning techniques, help enormously to understand conflicts better, structure them and contribute to their resolution. In this sense, mediation is not just a process, but also an attitude.
Crises as an opportunity for mediation
Particularly in the case of far-reaching conflicts, e.g. in restructuring, social plans or serious conflicts of interest, mediation can help to defuse a deadlocked situation. If the project of working together fails and only legal dodges dominate, a mediation process can open up a new space for discussion.
However, the prerequisite is that the parties are not already stuck in the mindset of court proceedings. Mediation relies on the will to cooperate, not on victory and defeat.
Future competence for works councils
The world of work is becoming more complex, faster, more global and more conflictual. This increases the pressure on works councils to deal with tensions professionally. Mediation is not a substitute for rights under works constitution law, but a valuable addition. It enables solutions to be found by consensus, sustainable relationships to be maintained and industrial peace to be strengthened.
Mediation can help to overcome speechlessness, avoid escalation and shape the future together, especially in the face of change in companies, such as digitalization, mergers and outsourcing.
A powerful tool in the works council’s toolbox
Mediation is not a betrayal of interest representation. It is a tool that enables works councils to accompany conflicts constructively. It enables sustainable solutions where courts only know winners and losers. And it helps to ensure that people not only work in the company, but also talk to each other.
So if you are a works council member, you should not only know mediation, you should master it. Not always as neutral mediators, but always as bridge builders.
