How voluntary is mediation really?

Voluntary, but not without obligations

In theory, no one can force you to sit down with a mediator. However, that does not mean that you can simply refuse a mediation proposal. Laws and regulations require both parties to deal with a conflict carefully and responsibly. And this is exactly where the discussion about whether mediation is mandatory or voluntary often arises.

For employees: The Dutch Gatekeeper Improvement Act (Wet verbetering poortwachter) requires active cooperation in the reintegration process. If the occupational physician recommends mediation, an employee is expected to seriously consider this. Refusing without a valid reason may be seen as insufficient cooperation, with possible consequences for the right to continued salary payments.

For employers: the duty of care for a healthy working environment carries significant weight. An employer who rejects mediation without a convincing reason may, in dismissal proceedings, be accused of not having done enough to resolve the conflict.

Voluntariness therefore exists, but it is always assessed against the background of rights and obligations — which is why the perception of mandatory mediation can sometimes arise.

Duty to make an effort: not an optional step

Once parties decide to enter mediation, a duty to make an effort arises. Mediation is not a casual introduction or a conversation session where you can participate without commitment. The process only works if both parties are willing to actively engage: listening, identifying their own concerns and interests, and genuinely searching for solutions.

Someone who merely “shows up” but refuses to move forward is not only acting against the spirit of mediation, but also against the expectations that courts and occupational physicians place on this process.

How does a judge view refusal?

Courts are increasingly emphasizing that mediation is a reasonable and proportionate intervention in employment conflicts. A refusal without substantial grounds is therefore assessed critically.

An employee who refuses a mediation process in a workplace absence conflict without a valid reason may lose entitlement to continued salary payments.

An employer who ignores a mediation proposal and immediately starts legal proceedings may be accused of not having acted with sufficient care towards the employee.

The message is clear: the law allows room for voluntariness, but it does require a serious and reasonable assessment.

Voluntary, but not without obligation

Starting a mediation process remains, at its core, a voluntary choice. No one can force you to participate, and you are only bound by agreements once you have jointly established and signed them. Until then, you can always explore other ways of resolving the situation.

However, this freedom is not unlimited. Both parties are expected to seriously consider a mediation proposal and, once they have entered the process, to commit sincerely to it. This is precisely what makes mediation powerful: it combines voluntary participation with the obligation to make a genuine effort.

Conclusion

The question “how voluntary is mediation really?” therefore has a layered answer. Mediation is voluntary in participation, but demanding in attitude. You always have the choice whether or not to participate. But that choice must be made carefully, taking your rights and obligations into account. And once you participate, you are expected to genuinely try to reach a solution.

And that is exactly where the value lies: when both parties take their duty to make an effort seriously, mediation often achieves more than they initially expected — not only resolving the conflict, but also restoring trust and creating a workable future.