New standards proposed for independent mediators and arbitrators

In June 2007, a new set of standards was proposed for private consultants operating as independent mediators and arbitrators. The proposed standards aim to enhance the credibility of this growing group of consultants, as an alternative to Ireland’s state-run industrial relations service. Among the recommendations are to ensure that no conflict of interest arises.

A new protocol of standards for independent mediation and arbitration providers has been proposed by two industrial relations experts. The proposals mark the first attempt to regulate what has become, in recent years, a growing area in Irish industrial relations.

The new protocol has been proposed by Liam Doherty of Ask HR Ltd, who is a former official of the Irish Business and Employers’ Confederation (IBEC), and by Paul Teague of the School of Management and Economics at Queen’s University Belfast.

Mr Doherty and Professor Teague believe that, since some consultants offer their services to both employers and employees, as well as acting as independent mediators and arbitrators, this may raise questions about the perceived integrity of the private mediation sector. Up until now, this sector has operated in a ‘largely unregulated fashion’.

However, the two industrial relations experts insist that the proposed protocol should be a voluntary one. They would not advocate statutory regulation, as they feel this could undermine the flexibility of the system.

Growth of independent service providers

State-run institutions such as the Labour Court and Labour Relations Commission still constitute the main third-party bodies providing mediation, adjudication and arbitration services for trade unions and management in Irish industrial relations. However, over the last decade or so, the use of private independent third parties, usually individuals, has grown.

Many of these independent figures consist of former personnel managers, trade union officials or staff from state-run third-party bodies, who offer their arbitration and mediation services on a consultancy basis. Some people working in this area may have retired from their former job but, due to their strong reputation for problem solving, many of their clients feel that they still have much to offer.

Factors encouraging the use of these independent service providers as an alternative to the state-run industrial relations services include: speedier access, a growing non-union sector and the possibility that the background of a particular expert may be more suited to the needs of the dispute in question.

Preventing conflict of interest

The proposed protocol states that independent investigators, mediators or arbitrators (IIMA) should not represent either management or employees in any third-party dispute resolution forum. They should have no connections with either management or trade unions in the dispute, either as a shareholder, former representative or through any other contractual relationship. Moreover, IIMA should not use any confidential information obtained during the assignment for any future advantage.

The proposals recommend clear distinctions to be made between investigators, mediators and arbitrators. Accordingly, investigators would establish the facts of a dispute without recommending appropriate outcomes. Mediators should assist the parties in reaching a resolution to a dispute among themselves. Arbitrators would set out a solution, but should not act as mediators, although a separate mediator could be employed if this was deemed to be more effective. In addition, arbitrators should clarify in advance if their decision is to be binding or non-binding.

Under the protocol, all three categories of IIMA should have no unilateral contact with either side that would cast reasonable doubt on the integrity of the process. Any correspondence between the IIMA and one of the parties should automatically be copied to the other party. The IIMA should not accept any gift or item of value from either party, nor should they be influenced by the possibility of future case referrals by either party or their representatives. Either party to a dispute should be free to seek help from a competent person of their choice and should be encouraged to obtain independent advice prior to concluding an agreement.

While it is normal practice for employers to meet the costs of any services provided privately by IIMA, there is a danger that this may create the impression that IIMA will deliver a more favourable outcome for the employer. Therefore, the proposed protocol recommends that ‘it would be helpful if the IIMA were unaware of who was paying or in what proportion the fees were being met by the parties’. Finally, it is proposed that IIMA would have access to sufficient continuing professional development to enable them to provide competent dispute resolution services.

Colman Higgins, IRN Publishing