The formal and informal justice systems are complementary
It is essential to have bridges between the formal and informal systems so that disputes can be resolved amicably at any time. It is obviously easier to find amicable solutions at an early stage, before positions become entrenched. However, experience has shown that negotiated and mutually agreed solutions can be found outside the Court at any time. The lawyers in our Service, who represent the Administration in employment disputes, are very open to informal conflict resolution and favour this method of settlement wherever possible. They work closely with the Office of the Ombudsman in Geneva.
Mediation helps restoring the dialogue between the parties
For certain disputes, discussion can help to find common ground and can sometimes also allow the implementation of solutions that are flexible and more creative than those proposed by the Court. In other cases, when the interpretation of the rule is unclear for example, a judge’s intervention is useful in order to settle a question of law and possibly set a precedent.
Around 40% of the disputes we handle before the Tribunal involve issues relating to staff not being promoted, and by the time a case comes to the attention of the Legal Team Section, the decision to promote another candidate has usually already been taken or even implemented. These situations are therefore more complex to resolve in an informal setting as the possibilities for redress are limited. Nevertheless, we have had some very positive experiences where mediation has helped restore dialogue between the parties.
The “psychological” aspect underlying a dispute is sometimes underestimated. This is why the work of the Ombudsman or a mediator can be very beneficial, since their role is really to understand what might be behind a complaint in order to identify all its aspects – emotional, behavioural and psychological. Staff members can also get support from the Staff Counsellor to help them deal with their emotions and the stress that a complaint procedure can cause.
Generally speaking, mediation is more appropriate when the applicant is still in the service of the Organization, and it can restore a healthy working environment and the necessary trust between the staff member and their colleagues or supervisers. Mediation is usually not suitable if the applicant’s expectations are unrealistic.
The judge’s role in encouraging informal resolution
Practices vary greatly depending on the judge hearing the case. In general, once a judge reviews a case and has considered the written submissions a discussion between the parties is convened. This discussion is not a hearing on the merits, but rather an exchange of views on the procedure to be followed, additional documents to be submitted, possible witnesses to be called, etc. It also allows the judge to ask clarifying questions in order to decide how to proceed. Sometimes, the judge will already give preliminary indications of his/her position in relation to the dispute and may encourage the parties to undertake mediation.
This preliminary advice from the judge may encourage the parties to try to resolve the dispute informally. If this is the case, the proceedings before the Tribunal are suspended during the informal resolution process. Informal discussions under the auspices of the Ombudsman remain confidential and are not disclosed to the judge if the negotiations fail.
Many disputes at the Tribunal relate to the work environment
In a number of disputes before the Tribunal, the essential issue is not necessarily a legal one. The complaint might identify an administrative decision, but when the case is examined, it becomes clear that the issue to be resolved is much broader and encompasses aspects of management, communication, the working environment and recognition.
In this type of situation, a court ruling will not always help to resolve the conflict in the long term. The judge will decide on the legal issues and examine the legality of the contested administrative decision and might order the rescission of a decision or the payment of financial compensation, but they cannot order measures to restore a better working atmosphere. It is not the role of the Tribunal to examine labour relations or performance issues. Moreover, bringing a case before the Tribunal can have a significant impact on a team or a working environment, and it can exacerbate tensions, especially if colleagues are called as witnesses. So I think discussing matters with the Ombudsman’s service or with a mediator before filing a complaint with the Tribunal can help the parties to better understand all the issues, not just the legal ones, and to assess the risks. Of course, the cooperation of both parties is essential since the very principle of informal conflict resolution is based on the consent and willingness of the parties to reach an amicable agreement.
There are other offices and initiatives too
At UNOG, we are fortunate to have a coaching service that provides support to staff in difficult working situations. Coaches are certified professionals and they can really help staff members of all grades and levels of responsibility to manage tensions or improve their ability to deal with complex situations in their working relationships. The work of the coach is certainly not comparable to that of the Ombudsman, but the coach will help to see the situation from different angles, clarify the staff member’s expectations and explore potential solutions with them. In this way, their help can be invaluable in avoiding the escalation of a conflict and the filing of a complaint with the Tribunal. It is also worth mentioning the “Together for Respect – Dialogues” offered at UNOG and it is highly recommend that everyone take this training, since we all have a responsibility to maintain a harmonious working environment, free from discrimination, harassment and abuse of authority. At the training session, you will learn when and how to intervene in certain situations and become active witnesses if required.