Exit mediation in cases of illness

What is exit mediation?

Exit mediation is a form of employment mediation that ends with a settlement agreement (VSO), through which the employment relationship is terminated by mutual consent. This happens in approximately half of all employment mediations. National figures show a similar picture, according to data from the Dutch Mediators Federation [8].

At the start, however, this is never predetermined. Every employment mediation begins neutrally, and every outcome remains possible. Only when both parties jointly decide to end the employment relationship can it be referred to afterwards as exit mediation. It is therefore not something that one party can decide in advance.

Why you cannot simply purchase an exit mediation

In mediation, parties are often stuck. One wants option A, while the other wants option B. The mediator creates space to explore each party’s interests, making a joint outcome possible — whether that is A, B, or something entirely different.

If it were decided in advance that the outcome would inevitably be termination, the party that actually wants to restore the relationship would no longer have a genuine voice. The mediation would fail before it even begins. That is why every mediation starts from a neutral position.

When is it chosen?

Exit mediation becomes relevant when returning to work is no longer a realistic scenario for either party and no suitable internal alternative appears to be available. This often occurs in cases of long-term illness or burnout related to workplace conflict.

This connection has been well researched. A significant proportion of absenteeism due to psychological complaints is related to tensions in employment relationships, and these cases of absence tend to last longer than average [1][2]. Research into conflicts with managers shows that they are associated with higher levels of sickness absence and increased voluntary departures [3]. As long as the conflict remains unresolved, recovery is difficult to achieve.

Support can make a difference. A review of research into the role of mediation in employment conflicts suggests that conversations guided by a mediator can help people move out of a period of illness sooner than counselling alone [1]. Sometimes this leads to restoring the working relationship. Sometimes it leads to a respectful separation.

How does it work?

An exit mediation begins like any other mediation process, with an intake and preliminary conversations. The mediator speaks with both parties, identifies what is happening, and explores what each person needs.

Our mediations are future-focused. The conversation centres on what is needed to move forward, either together or separately. Acknowledging what happened can clear the air, but the focus remains on the next step. If neither party sees a workable continuation of the employment relationship and no suitable internal position exists, the discussion moves towards termination.

The exit negotiation usually focuses on four points:

• The recovery period: how long the employee remains employed

• The notice period

• The termination payment (the statutory transition payment only applies in cases of dismissal)

• A positive reference

Parties often reach agreement quickly on the amount of compensation and the reference. The most difficult point is usually the recovery period: when can the notice period begin while the employee is still on sick leave?

Be aware of the risks during illness

In principle, employer and employee can agree when the notice period begins. If the employee expects to have recovered in two months, for example, the parties can agree that the notice period starts at that point. However, there is a risk involved. If the employee remains ill for longer and is unable to apply for jobs, entitlement to unemployment benefits (WW) may be suspended. There is also no entitlement to a WIA benefit, because the employee would have needed to remain employed.

Nevertheless, in many cases this is the best choice for both parties. It brings an end to uncertainty and an unhealthy working relationship, which can actually support recovery.

One common misunderstanding is that the prohibition on dismissal during illness applies to the employer, not the employee. As an employee, you can therefore always agree to terminate the employment relationship yourself. Make sure you are properly informed before doing so. The occupational physician can assess the expected recovery period, especially once the conflict has been addressed. The mediator explains the rules but does not provide personal legal advice. It is therefore wise to seek support from a lawyer or legal adviser, who can involve the mediator in the conversation where appropriate.

A practical example

Recently, we completed a mediation in which this situation occurred. The employee was a manager at a large company and had been employed there for sixteen years. Over the previous two years, many things had gone wrong: an excessive workload, a clash with senior management about the company’s direction, and eventually burnout. After four months of recovery, the occupational physician recommended mediation.

During the preliminary conversations, it became clear that both parties had serious doubts about a successful return. There was a great deal of frustration, especially from the employee. He was not yet able to handle work-related demands. During the first meeting, each person was given the opportunity to explain what was needed to move forward. The employer acknowledged their share of responsibility. Enough understanding developed to look ahead, but not enough to continue the working relationship.

In the follow-up meeting, it became clear that returning to the role was no longer realistic for either party. There were no suitable internal alternatives. The exit negotiation therefore began. They quickly agreed on the four-month notice period, the termination payment, and a positive reference. The remaining issue was the recovery period.

The occupational physician estimated that recovery would take another three to six months. The parties agreed on five months, followed by four months of notice period, making a total of nine months. The employee knowingly accepted a risk but had received proper advice. For him, the peace of mind and clarity outweighed the alternative. For the employer, it meant a respectful conclusion and the opportunity to appoint a successor. A successful exit mediation.

This example has been anonymised and compiled from common situations. Confidentiality is a strict boundary in mediation, including in this case.

Why this works better than negotiating remotely

With a settlement agreement negotiated through lawyers, representatives negotiate on behalf of the parties, often in writing and at a distance. In exit mediation, the parties themselves sit at the table, guided by the mediator, and determine the outcome together.

That difference matters. International research shows that people are more likely to honour agreements they have helped create because they experience the process as fair and recognise themselves in the outcome [4][5][6]. Mediation is also generally faster and less expensive than going to court, and it leads to less escalation [7]. For an employee who is already vulnerable and an employer who wants to move forward, that is an important consideration.

Exit mediation at Result ADR

Half of our mediations end in an exit. Forty percent result in reintegration, and ten percent are unsuccessful. All of our mediators therefore have extensive experience with exit mediations, including complex cases involving illness, burnout, or long-running conflicts.

During a period of illness, contact is often limited and trust can decline as a result. Employees are not at their strongest, employers have a great deal to manage, and the decision to leave involves a loss of security or income. Our mediators bring calm and structure, giving everyone the space needed to make the right choices. More than 90% of our cases are successful, most exit mediations are completed within four to six weeks, and parties rate the process with an average score of 9.

Frequently asked questions