Employers, employees, don't lose yourselves in the legal system’s maze: Take things into your own hands to find the best way to settle your dispute through interest-based negotiation.
Social justice need not be a weighty burden.
Let’s start with an undeniable fact : Industrial tribunals take longer and longer with uncertain outcomes.
Since 2010, and even more so since the so-called Macron ordinances (in particular ordinance no. 2017-1387 ratified by article 10 of law no. 2018-217 of March 29, 2018 and the implementation of a compensation scale in the event of dismissal without real and serious cause), the rate of referrals to the industrial tribunal, both on the merits and in summary proceedings, has fallen sharply (by almost 50%) and the decisions rendered are not satisfactory for either employers or employees.
In fact, for company managers, acting as defendants, a labour tribunal procedure incurs numerous consequences : the costs of the procedure, the time spent collecting the information to be provided for their defence, the appointment of someone to manage the case, reputation damage, the additional mental stress…
The employees, the plaintiffs, must endure the agonising time that the procedure takes (about 18 months before the Labour Court, then about 3 years in appeal), the cost (if they are not beneficiaries of legal aid), and finally the frustration of not having been concretely compensated. They leave this procedure psychologically exhausted and with too few levers to bounce back.
It is clear that no one wins in this scheme.
On the other hand, there is another way of resolving the dispute that satisfies both parties.
What is it ?
Although its name may suggest an impossibly idealistic form of agreement, interest-based negotiation, or principled negotiation, is not soft or fluffy: it’s smart.
It is a collaborative effort to identify the common needs and interests of the parties. Instead of taking a combative approach against an adversary, a partnership is established with the other party so that each one can responsibly propose fair solutions. The relationship of force and domination is replaced by a calmer communication and the role of the lawyer becomes that of guiding their clients in the expression of their most deep-seated needs. However, this approach is not about avoiding the problem. Avoidance has nothing to do with amicable solutions.
In practice, let’s take the example of an employee, a supervisor in a family business with an international reputation, who has been employed for over 20 years. Due to the health crisis and the administrative closure of all the stores around the world for several months, the turnover has fallen and, despite the application for financial aid, the company is in economic difficulty. As a result, the company is forced to eliminate the employee’s position: The redundancy procedure for economic reasons is implemented and the employee is dismissed.
The latter decides to contest his dismissal by taking the matter to the industrial tribunal, as he does not understand why he is the only one whose job has been eliminated. Despite the company’s explanations, he considers that the decision was arbitrary and that the economic reason was unjustified.
In addition, in his appeal, he also drawn up a catalogue of claims relating to the employment contract (overtime, damages for lack of training, etc.), not to mention an allegation of moral harassment. According to the appeal, it appears that the employee is seeking a substantial sum of money, close to 100,000 euros.
Therefore, two options can be considered :
Principled negotiation, for whom and how ?
Principled negotiation, or interest-based negotiation, makes it possible to get out of a power struggle based solely on monetary criteria.
So an employee who asks for a certain amount of money for compensation must question his or her motivation: Why this amount and not another? In the end, is a sense of acknowledgement what he actually needs, an apology or a help to start a new project?
Similarly, it is necessary for the employer to address the issues: Why is he refusing to compensate the employee to the extent he is asking? Does he have cash flow problems? Does the employer not understand the employee’s needs? Is he afraid of setting a precedent or appearing weak to other employees or staff representatives?
Together, employer and employee will be able to discuss their respective needs, find common interests and invent satisfactory solutions for each other. Throughout the process, the dialogue is uninterrupted and respectful of each other not only in terms of their function, but also, and above all, as individuals.
What results ?
With interest-based negotiation, the end of one relationship can determine the beginning of another. And everyone wins: the parties, of course, by saving time and money and preserving the relationship, but also the lawyers trained in principled negotiation, by the satisfaction of having helped their client not to suffer a situation, but to transform it into a virtuous and positive outcome.
In the above example, the interest-based negotiation allowed the employee and the company to agree on an amount of compensation, which was accompanied by a personalised recommendation to an Italian partner so that the employee could return to his native Italy with an employment contract. The collaboration between the two parties continues in a different form. Moreover, the negotiation process lasted only 4 months.
An iron fist in a velvet glove
Interest-based negotiation means managing the process of resolving the dispute while evolving in a climate of understanding, where each party plays an active role. An iron fist that rigorously recognises the needs of both parties, but a velvet glove to reach possible solutions in an enlightened way.
When accompanied by a qualified professional, interest-based negotiation is particularly well suited to situations where the durability of relationships is essential: in labour and commercial law (between partners, between employers and employees) and family law (between parents).
Ms. Cécile NEGRO, lawyer trained in both collective and individual relations, and particularly in principled negotiation, will accompany you in an enlightened resolution of your disputes.