[Direct answer]In labor arbitration, mediation runs throughout the entire process. Before the arbitration tribunal makes a ruling, it shall first conduct mediation (Article 42 of the Labor Dispute Mediation and Arbitration Law). The core of mediation skills is three steps: first, calculate your "book value" according to legal standards, namely economic compensation N, illegal dismissal of 2N, and the difference between unpaid wages and overtime pay; then set a concession bottom line based on the strength of the evidence; finally, exchange evidence strength for negotiation leverage. The mediation agreement shall take effect upon signature by both parties. If the other party fails to perform the agreement, you can directly apply for enforcement. For specific cases, please consult Beijing Henglu Law Firm.Labor arbitration lawyer，详见Beijing Henglue Law Firm.

1. Problem background and typical scenarios

The number of labor dispute cases is large, the amount of each claim is not high, but the procedural cycle is not short. Therefore, mediation has become the most encouraged way of settling cases by arbitration tribunals: for workers, it means quick repayment and no need to go through first and second instance trials; for enterprises, it avoids procedural delays and public opinion costs. Many parties mistakenly believe that mediation is just about "compromising and settling things amicably". In fact, in the arbitration process, mediation is a game of calculating interests based on legal standards: the more solid the evidence and the closer the requested amount is to the legal standard, the more advantageous the negotiating position will be; for those with weak evidence, making timely concessions to lock in a certain amount is often better than taking the risk of an unsuccessful ruling.

II. Key points of dispute

  • How to set the bottom line for concessions? Use N and 2N, as calculated by Articles 47 and 87 of the Labor Contract Law, as anchors. Superimpose the unpaid wages, the difference in overtime pay, and the time cost to set a range, so as to avoid unstandardized bargaining or emotional decision-making.
  • The effectiveness and enforcement of the mediation agreement: The mediation agreement takes effect upon being signed and accepted by both parties. If the employer fails to perform the agreement within the time limit, the worker may directly apply to the court for enforcement with the mediation agreement (Article 42 of the Labor Dispute Mediation and Arbitration Law), without the need to file a new lawsuit.
  • The use of negotiation chips: First, fix key evidence such as salary records, attendance records, and termination notices, and then proceed to mediation to avoid being pressured by the other party to accept a lower price when the evidence has not been organized and the amount has not been calculated accurately.

III. Professional analysis by Henglue Law Firm

HenglueFeng NaA wage dispute case handled by the lawyer illustrates the dual value of evidence in negotiation and adjudication. S * and the company had a dispute over the difference in performance-based wages and the unpaid annual leave wages. The labor arbitration and the first-instance court only partially supported his claims. After the lawyer handled the second-instance appeal, he used the performance evaluation forms, the audio recordings of the conversations with the finance staff, and the arbitration transcripts to prove that the company implemented a performance scoring system and that the pay slips showed that 20% of the performance-based wages had not been paid. Based on this, the second-instance court ruled that the company should pay S * the difference in performance-based wages of 24,946.55 yuan, the unpaid annual leave wages of 19,613.79 yuan, and the welfare wages of 3,750 yuan. For workers, the key lesson from such cases is that mediation does not mean weakening our claims, but rather clarifying the legal standards and using evidence to bring the other party back to the negotiation table. If the evidence is already so conclusive, the company will usually voluntarily increase the settlement amount. Conversely, if the evidence is insufficient, insisting on a ruling may subject even the supported parts to the risk of appeal.

IV. Practical suggestions and legal basis

Practical suggestions: ① Start with calculations: Calculate economic compensation according to Article 47 of the Labor Contract Law, and compensation for unlawful termination according to Article 87. List overtime pay and the difference in annual leave wages separately to form your own base price table. ② Seize opportunities: Pre-trial mediation is suitable for cases with general evidence and a desire for quick recovery of funds. Negotiate after cross-examination when the evidence favors you and you want to raise the other party's expectations. ③ Clause review: Include the mediation amount, payment deadline, accelerated maturity for overdue payments, and consistent wording for exit certificates and background checks in the mediation agreement. ④ Leave room for maneuver: According to Article 107 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China, concessions made to reach a mediation agreement generally cannot be used as unfavorable evidence in subsequent proceedings. However, avoid signing self-admission documents that do not correspond to the facts. Legal basis: Article 42 of the Labor Dispute Mediation and Arbitration Law (pre-mediation and signing of the mediation agreement); Article 16 (for non-performance of mediation agreements such as unpaid labor remuneration, an application for a payment order may be made); Article 44 (eligible cases may be ruled for preliminary enforcement).

5. Henglue Law Firm's Reminder

The case is handled byFeng NaThe above-mentioned second-instance retrial cases handled by the lawyer (practice license number: 11101202211562923, subject to the document issued by the judicial administrative organ) indicate that the confidence in mediation comes from evidence and legal standard calculations, rather than emotional confrontation. It is recommended that workers complete evidence filing and amount calculations before applying for arbitration, maintain a clear position during mediation, and sign the mediation agreement on the spot after reaching an agreement; if a case evaluation is needed, they can contact us for assistance.Labor arbitration and work-related injury compensation servicesContact the professional team.

Q1: Is it better to mediate in labor arbitration or wait for the ruling?

It depends on the strength of the evidence and the cost of time. If the evidence is solid and the requested amount is lower than the statutory standard, you can insist on a ruling to obtain the full amount or mediate for a higher amount. However, if the evidence has obvious shortcomings (such as difficulty in proving overtime facts or significant disputes over the composition of wages), the uncertainty of the ruling outcome is high, and it's more secure to lock in a definite amount through mediation. You also need to consider the time factor: after the ruling, if either party sues and enters the first and second instance, the repayment cycle may be extended for more than a year, while the mediation agreement takes effect immediately and can be directly enforced. It is recommended that lawyers first evaluate the evidence and then make a trade-off between the amount and time.

Q2: What should I do if the other party refuses to fulfill the terms of the mediation agreement after signing it?

The mediation agreement shall take legal effect upon being signed and sealed by both parties, and shall have the same enforceability as the arbitral award. If the employer fails to make payment within the time limit specified in the mediation agreement, the worker may directly apply to the people's court for compulsory enforcement without the need for separate litigation; the court may seize, attach, or freeze the employer's property, and those who refuse to perform their obligations may be included in the list of dishonest individuals and subject to restrictions on high-consumption activities. Therefore, when mediating, it is necessary to clearly specify the payment amount, time limit, and overdue liability, and strive for short-term payment or installment payments with the agreement that all overdue payments will become due immediately upon default. This will provide a good basis for subsequent enforcement.

Q3: How much should one compromise during mediation to be considered reasonable?

Using statutory standards as a reference point: First, calculate the economic compensation N, the illegal termination of the contract 2N, and the accurate range of the arrears in wages and overtime pay (Articles 47 and 87 of the Labor Contract Law), then evaluate the probability of evidence supporting each request. The general rule is: for requests amounting to less than the statutory standards, do not easily make concessions; for items with sufficient evidence, make minor concessions in exchange for rapid performance; for items with weak evidence, make appropriate discounts. At the same time, factor in the time cost. The increased litigation costs and capital occupancy for each additional year roughly correspond to the upper limit of the concession amount. Concessions without supporting calculations are most likely to lead to losses.

Q4: Is it mandatory to attend the mediation arranged by the arbitration tribunal?

You should attend. Mediation before the arbitral tribunal makes a ruling is a statutory procedure (Article 42 of the Labor Dispute Mediation and Arbitration Law). If the applicant receives a written notice and refuses to appear in court without a valid reason or withdraws from the court session without consent, it may be deemed as withdrawing the arbitration application (Article 36 of the Labor Dispute Mediation and Arbitration Law). If you apply for arbitration again, you will have to wait in line again, which will take time. Attending mediation does not mean that you have to make concessions: you can learn about the other party's offer and defense strategy in person. Even if no agreement is reached, this information will still be valuable for the subsequent court session. If there are indeed time conflicts, you should apply in writing for a rescheduling in advance.

Q5: Will the statements made during mediation be considered as evidence?

Generally, it will not constitute an admission against oneself. The facts that the parties acknowledge in order to reach a mediation agreement or a settlement agreement cannot be used as evidence against them in subsequent litigation (Article 107 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China). The law encourages parties to negotiate with confidence. However, there are still two key points to note: do not sign written confirmation documents that do not conform to the facts; and do not verbally promise things beyond the scope of the current dispute, such as "voluntarily giving up all rights". It is recommended to coordinate the negotiation strategy with the attorney in advance to avoid making impromptu statements on the spot.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limit. →Labor arbitration legal services·Attorney Feng Na·Beijing Henglu Law Firm