Individual disputes at the workplace: Alternative disputes resolution
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Commentary
Rather than restricting ADR to judicial processes, a broad definition of ADR is the more helpful, covering non-judicial as well judicial forms of ADR. This broad definition allows governments and the social partners to focus on areas where the resolution of individual worker disputes can be advanced. There is a ‘ladder’ of ADR activities from the workplace to the courts, as the following steps show.
- Step one – action is taken to ensure the avoidance of disputes at work through encouraging the most appropriate procedures for handling grievance and discipline and, by implication, improving management practices and behaviours.
- Step two – non-judicial ADR occurs at the workplace and/or higher levels, where management and trade unions, or other representatives, meet to seek to resolve individual disputes. A conciliator or mediator may be involved at this stage, depending on national preferences. This step can include relational mediation.
- Step three – as part of a pre-court application or hearing, ADR is provided by a third-party expert in conciliation and mediation. Arbitration can be applied at this stage if the parties agree.
- Step four – ADR is adopted in the courts, either immediately before a hearing or during it, with conciliation or mediation usually provided by the judge or a lawyer.
Although ADR can take place at all stages, the clear intention is to try to resolve the matter as soon as possible. In general, the earlier the matter is dealt with, the easier it is to resolve the issue and the cheaper the process.
The use of ADR is growing across Europe but, within each country, starting from a different position and in the context of different traditions in employment relations. Using what limited evidence there is, an optimistic estimate is that two thirds of judicial ADR interventions are successful. There are no data on the success rate of non-judicial ADR – nonetheless, the low level of labour court cases in Sweden, for example, points to a potentially high success rate.
Some types of individual worker disputes are more amenable to resolution through ADR than others. ADR would appear to be most successful where the matter considered is ambiguous, multi-faceted and complex, with competing sources of evidence. Questions of ‘unfair’ dismissal, discrimination in its various guises and relational matters such as bullying fall into this category. In contrast, factual disputes concerning alleged failure by the employer – for instance, regarding the payment of wages, granting of holidays or provision of equipment – are less amendable to resolution through ADR, but by no means irresolvable.
ADR used prior to a court hearing which has proved unable to resolve the dispute to the agreement of the parties can still be deemed successful. The act of discussing the issue with an experienced third party can, for example, lead a party to withdraw either because they realise that the chances of success in court are low or due to the realisation of the financial and emotional costs of a court proceeding, a process which can take many months. Thus, ADR has an educational role as well as a quasi-judicial one.
It is hard to draw a clear distinction between conciliation and traditional mediation involving the third party suggesting or recommending a means to resolve the problem. It would appear that long-established, state-funded ADR bodies tend to use the term ‘conciliation’. On the other hand, recently established, often private persons or companies prefer to use ‘mediation’.
Relational mediation is not well established but seems to be an area where interest in the possibility of its use is growing in a few countries. The four distinctive characteristics of relational mediation are that:
- it is applied to disputes where the worker is still in employment;
- the issue is likely to concern interpersonal relationships and allegations of mistreatment, such as bullying;
- the process of mediation is non-judgemental and based on joint searches for ways forward;
- the worker and manager, or workers involved in the dispute, will not usually be accompanied in the mediation event.
The growth of mediation as a private practice and its anticipated growth raise questions over the need for entry or qualification standards, along with training and some form of protocol establishing canons of good practice. This is already occurring in some countries.
Regarding arbitration, by definition, this practice is used as a last resort since the arbitrator makes an award and decides the outcome. As such, arbitration nearly always follows attempts at conciliation or mediation. Provided that the parties agree in advance to abide by the outcome, arbitration can be used as an alternative to a court case. The evidence in this report seems to suggest that it is not a popular form of ADR – arbitration can be too inflexible and has little advantage over a court hearing, except perhaps in terms of speed.
There is some evidence to suggest that attitudes to the use of ADR in individual labour or employment disputes are becoming more positive. In the last 10 years, 15 countries have seen initiatives of some sort in ADR. Trade unions are generally in favour of ADR, while employer organisations in most countries now support it and governments increasingly view ADR as a cost-effective and speedy alternative to court proceedings. It is suggested in some quarters that lawyers and judges are less enthusiastic about ADR, while others contend that it is the judges who are pioneering forms of pre-hearing mediation. All of these findings suggest that there is likely to be an increased take-up of ADR in the future.
John Purcell, IRRU, University of Warwick
EF/10/06/EN
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