Individual disputes at the workplace: Alternative disputes resolution
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Introduction
Defining alternative disputes resolution
All countries in the European Union (excluding France as no country report was received for this country) allow for individual worker disputes concerning alleged breaches of employment law to be heard in an appropriate court of justice – whether a specialist labour court or a civil court. The issue addressed by this comparative analytical report is the use of means seeking to resolve the problem before a full hearing takes place, that is, through alternative disputes resolution (ADR) procedures. A narrow definition of ADR is the use of third parties engaging in conciliation, mediation and arbitration prior to a court hearing. This can be action by a legal authority, often the court judge, immediately prior to a hearing in an effort to resolve the dispute. Alternatively, or in addition, it can involve the appointment of publicly-funded specialists, or private experts – either once an application has been made but before a court hearing is fixed, or before the claim has been made. These types of ADR linked to the judicial process are referred to as ‘judicial ADR’. In addition, some countries emphasise the role of the social partners in the workplace, or sometimes in the region or sector, in providing an avenue for a worker to resolve a dispute at the level of the works council or similar institutions aligned to collective bargaining. These are referred to as ‘non-judicial ADR’. Five distinct types of ADR are evident, as follows.
- Conciliation: In this type of ADR, the third party acts only as a facilitator by maintaining the two-way flow of information between the conflicting parties and encouraging a reconciliation between their antagonistic positions. The third party listens to each side, usually in person or sometimes by phone, and seeks to find an acceptable solution. Such solutions can include compensation or, alternatively, measures taken in the workplace. The conciliator does not make a judgement or suggest a solution, but works with the applicant and the employer to find an acceptable outcome, which is then recorded. In some countries, the law requires that before the matter can be heard in a labour court or tribunal, the applicant must use the services of a conciliator. If agreement is reached, it would be normal for the case to be withdrawn from the tribunal and registered as ‘settled’.
- Mediation: In this form of ADR, an impartial third party – the mediator – helps two or more people in dispute to attempt to reach an agreement. There are two types of mediation. One type is similar to conciliation, whereby the mediator meets the parties, or sometimes reviews written submissions, with a view to finding an acceptable solution and then issues a non-binding decision or recommendation. This is often done in writing. Such a process is similar to the well-established principles of mediation in collective labour disputes. The second type of mediation is referred to as ‘relational mediation’, based on the principles of collaborative problem-solving, with the focus on the future and rebuilding relationships, rather than on apportioning blame. The mediator guides the parties towards finding their own solution by getting them to explore different and new ways of thinking and acting. This approach has its origins in family mediation. Relational mediation is usually conducted without representatives or lawyers being present and no written decision is issued.
- Arbitration: In this case, the third party hears the case presented by each person and makes a binding ruling on the outcome.
- Labour inspectors or ombudsmen: Some countries use specialist experts known as labour inspectors and/or ombudsmen – as seen in Hungary, the Netherlands, Norway and Romania. Private companies sometimes appoint ombudsmen to deal with individual disputes inside their workplaces – as is the case in Ireland. In some countries, the ombudsman is appointed by the state to deal with particular types of disputes, such as discrimination.
- Non-judicial ADR: These alternative means of ADR involve the social partners engaging in joint efforts to resolve the problem through negotiation, problem-solving and/or the use of grievance and disciplinary procedures. In this instance, the case is heard, a decision is made and there is often the chance of an appeal – all within the workplace or at the level of the sector and/or region.
Complexity of ADR
Some countries use both types of ADR, including Ireland, Italy, Luxembourg and the United Kingdom (UK). Other countries have a long tradition of reliance on the social partners through collective agreements and/or works councils for non-judicial ADR, with the use of judicial ADR being very limited – as seen in countries such as Austria, Denmark, Germany and Sweden. In certain countries, a distinct form of non-judicial ADR in the workplace is the use of bipartite conciliation commissions, sometimes called Labour Disputes Commissions. These commissions can be found in Estonia, Latvia, Lithuania and Poland.
In no country is one method relied on to the exclusion of others. A clear finding of this analysis is the complexity of provision and the use of multiple methods of ADR at the level of the workplace, sector or region and linked to the courts. The distinction between conciliation and traditional forms of mediation is often difficult to draw.
This complexity often makes it hard for the EIRO national centres to provide a rounded picture of ADR. All of the respondents reported on judicial-based ADR but some paid less attention to non-judicial arrangements – perhaps, in part, because these were taken for granted. What is also clear is that the type of ADR arrangements in use is strongly influenced by the wider arrangements for structuring of the employment relationship within each country. These arrangements reflect the historical development of the institutions of industrial and employment relations over many decades.
Elsewhere, declining levels of trade union membership and the emergence of non-union sectors with no tradition of collective bargaining have led, in some countries, to the emergence of new approaches to ADR. A good example is Ireland, where foreign-owned multinational companies have pioneered non-judicial forms of ADR in their establishments, wishing to downplay the more union-led forms of ADR that have operated in that country for many years. Moreover, Ireland is a good example of other types of complexity, where ADR for particular issues takes a different route from ‘normal’ disputes. In this case, separate legislation is in place establishing ADR for discrimination cases and involving the creation of specialist institutions such as a Rights Commissioner. This is also evident in Austria, where disputes on both disability and apprenticeships are dealt with using special procedures.
It is hard to capture and summarise all of the complexity of ADR while, at the same time, linking the emerging patterns to the social, economic and legal historical context of each country. In general, there is little concrete data on the extent of ADR usage or on recent trends. This is usually because these types of data are not collected, which is itself a reflection of the relatively low priority given to ADR in many countries. Moreover, eight countries have different arrangements for dispute handling in the public sector, especially the civil service, from the private sector – namely, Austria, Cyprus, Denmark, Finland, Germany, Italy, Malta and the Netherlands. These special arrangements are not reviewed in this report.
In addition, some 15 countries have introduced new laws or procedures since 2000 to provide alternatives to court proceedings – namely, Belgium, Bulgaria, the Czech Republic, Finland, Hungary, Italy, Luxembourg, Malta, the Netherlands, Norway, Portugal, Romania, Slovakia, Slovenia and the UK. In four countries – Finland, Portugal, Romania and the UK – these measures have involved the establishment of specialist mediation bodies or processes. In seven countries, these innovations are attributed to the need both to reduce the cost of court or tribunal cases and to speed up the process. The time between an application being made to a court and its subsequent resolution can take months and, in a few cases, over a year.
Structure of report
The first part of this report sets out to establish patterns of ADR usage – initially, by looking at judicial ADR and then by examining non-judicial ADR. This is followed by an analysis of trends in the use of ADR in the few countries where data exists, along with an overview of how workers gain access to ADR services. Rather more attention can be given to the type of people who provide ADR services, how they are paid for this activity, and their involvement in subsequent court proceedings if ADR has not been successful and the case proceeds to a hearing. The views of the social partners towards the potential of ADR are then considered, followed by some concluding remarks.
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