Alternative Dispute Resolution Procedure - Coursework Example

DESIGN A WORKPLACE DISPUTE RESOLUTION PROCEDURE Introduction It is normal that disputes arise between parties in any collective endeavour requiring joint efforts. It is, therefore, necessary to put in place a mechanism to adjudicate and resolve these disputes in such a manner as agreed upon by the parties to the dispute. In many countries, we find suitable laws specifying the norms and procedures of dispute resolution and the mechanism, legal or otherwise, through which satisfactory solutions to disputes could be arrived at. An important one of these methods is through the "Alternative Dispute Resolution” (ADR) process. ADR is a voluntary method of arriving at a satisfactory solution to disputes. Unlike the traditional methods, which often are very formal ones, ADR provides to the concerned parties the right and scope to examine all the questions connected with the workplace and to arrive at solutions that are acceptable to all parties. Through ADR, the participants can resolve their disputes much more expeditiously than otherwise and the resolutions have much more acceptability and stability because they are arrived at by the participants rather than ‘imposed’ by an outside agency. Irrespective of any particular ADR method that may be chosen, almost all the ADR methods have certain common characteristics, such as that they are all voluntary – the parties to the dispute choose to use the ADR method and that they are expeditious in that the recourse to any of these methods cuts short the time taken by the traditional method of litigation and, even arbitration in the resolution of disputes. Outline of an ADR In the following paragraphs, we discuss the set-up of a workplace dispute resolution procedure that would satisfy the following requirements: it allows decision making at the most appropriate level; it enhances opportunities to determine disputes according to interests and rights; it addresses issues of power in the workplace; and it is a low-cost system. The Society for Professionals in Dispute Resolution has put forward a scheme of an effective dispute redress system, which they should “contain options for preventing, identifying, and resolving issues; promote a culture that works to solve problems at the lowest level through direct negotiation; allow multiple access points; empower employees to select from a range of options for addressing the conflict; and contain effective structure and support to maintain options.” (SPIDR: Society for Professionals in Dispute Resolution, “Guidelines for the Design of Integrated Conflict Management Systems within Organizations”, 2000, at www.mediate.com/articles/ford9.cfm/ retrieved May 25, 2007) The method that we discuss below is a something of a variant of the method proposed by Ury, Brett, and Goldberg in the 1980s (William Ury, Jeanne Bret, and Stephen Goldberg, 1988, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, London: Jossey-Bass Publishers). We indicate here the contours of the method discussed in some detail in the subsequent paragraphs. They mentioned three ways of resolving disputes: by negotiating interests, by adjudicating rights, or by pursuing power options, such as strikes or lockouts. The ideal method would be to resolve disputes at the level they occur, rather than searching for solutions based on one’s rights and power. Only if interest negotiation does not work, should the parties try a rights-based approach or a power-based one. Brahm and Oullet (2003) have suggested that an ADR design should incorporate the following principles in the dispute-resolution systems :”(1). The focus should be on interests; start with a process where the parties try to solve the problem using interest-based bargaining. (2). Provide low-cost rights and power backups. Arbitration, voting, and protests are low-cost alternatives to rights and power contests. (3). Build in "loop-backs" to negotiation. An example of a "loop-back" process is when parties settle a lawsuit out of court. As soon as it becomes clear who is likely to win, it is advantageous for both sides to avoid the costs and uncertainty of further litigation, and negotiate a solution to their dispute. (4). Build in consultation before, feedback after. Increasing shared information is a basic strategy in ameliorating all conflicts. (5) Arrange procedures in a low-to-high-cost sequence. First, try to solve the dispute on one’s own, and then seek the help of a lawyer, etc. Ury, Brett, and Goldberg advise that by arranging dispute-resolution procedures in a low-to-high-cost sequence one can reduce the probability of rapid escalation. Finally, (6) provide the necessary motivation, skills, and resources. An alternative system can function only if people buy into it. It is incumbent on the privileged in the conflict, and third-party interveners, to provide the resources and time necessary to generate cooperation with the new system.”( Brahm, Eric and Julian Ouellet, September 2003 “Designing New Dispute Resolution Systems”, Conflict Research Consortium, University of Colorado, at www.beyondintractability.org/essay/designing_dispute_systems/ retrieved May 25. 2007) Decision making in the workplace In the ADR system of settlement, reconciliation is arrived at between these two parties to the dispute. They resolve their differences through direct negotiation before other methods of resolution are sought. It is desirable that settlement is negotiated and arrived at by the parties themselves. In large organisations where that there is more than one level to which the disputes can be referred and settled, it may be desirable for a speedy resolution of the disputes to identify the particular level to which disputes can be taken for negotiation and settled. If direct discussions between the concerned parties do not result in resolving the dispute, then discussions at a more senior level of management as appropriate need to be held. When the dispute originates because of ‘miscommunication’ or misunderstanding between the parties it is presumed that the dispute is prone to an amicable settlement when they discuss the cause and consequences of the dispute. When direct communication fails to resolve the dispute, assistance of a neutral third party to clarify the nuances of the dispute and manage the process of reconciliation may be sought. The essence of discussion, either directly or with the assistance and in the presence of a third party, is that the disputants themselves seek to resolve the dispute. Determine disputes according to the interests of the parties Three methods are usually adopted to resolve disputes. One method is to use an ‘interest-based process’, such as mediation; second method is to use a ‘rights-based process’, such as adjudication or arbitration; and the third is to use a ‘power-based process’, such as a strike or ‘lock-out’. Mediation is an ‘interest-based’ method where is dispute is ultimately resolved by the persons involved in the conflict. (Bingham, L. B. 2004. "Employment Dispute Resolution: The Case for Mediation," Conflict Resolution Quarterly, Vol. 22, nos. 1-2, pp. 145-74). Through the mediation process, it is possible to improve communication between the disputants, build relationships, and understand each other’s points of view. There is no time-frame for resorting to mediation; that is to say, it can be used before, during, or in place of the formal dispute resolution methods, and it provides a personal alternative for addressing one’s problems. ADR through mediation is particularly appropriate in matters of interpersonal disputes or concerns about violations of regulations or acts of reprisal. Mediation can be called in to assist when an employee is in a conflict situation with a co-worker, or with a supervisor, and may be requested even after a complaint, grievance, or personnel action has been initiated. The right to pursue more formal dispute resolution methods is not abdicated as long as the disputants feel that the need for resorting to them has not vanished. In a mediation process, the session usually begins by a mediator with all the participants being present. The mediator explains the procedures and the rules that will be followed. He then invites the disputants to present their side of the matter. “They may present facts and evidence, question each other, voice concerns, or say what they are hoping for, while the mediator provides structure, balance, and fairness throughout the discussion.” Whether it is required or not, it is considered prudent for the mediator to meet separately with each participant to discuss issues in detail and to think out possible solutions for the dispute under consideration. The participants are expected to listen to each other’s concerns and try to reflect on the kind of future they can build together. Even though the main purpose of mediation is to arrive at a mutually agreed solution to the dispute between the parties, mediation is often considered successful if the process brings about a better understanding or relationship between the concerned disputants. A variant of mediation method is the “assisted conciliation process”. The ‘facilitator’ at the ‘conciliation’ session will ‘help the parties to identify and define the matters in dispute; help the parties to invoke a procedure which is aimed at achieving a quick and cost-effective resolution of the dispute. The facilitator can also suggest, ‘wherever appropriate, particular dispute resolution techniques for individual issues aimed at narrowing the matters in dispute quickly, fairly and cost-effectively’. Arbitration is a ‘rights-based’ process. (cfr. The Australian Industrial Relations Commission: Dispute resolution procedures in agreements at www.airc.gov.au/wc2k6/fact_sheets/dispute_guide_add.html, retrieved May 24, 2007) It is usually more costly and time-consuming than an interest-based process because a third party is necessary to settle the dispute. In an arbitration procedure, one or more arbitrators sift the facts and evidence presented by the parties to a dispute and then issue an "award" ‘that decides who gets what’. The arbitrator may also attach an “opinion” to the ‘award’ explaining the reasoning for the ‘award’. Arbitration is a substitute for a trial and review of a trial court’s decision by appellate courts. All arbitration results in binding awards, unless the parties agree to advisory arbitration. If the agreement says, "arbitration without any modification”, the decision is binding. The ‘award and opinion’ cannot be reviewed by a court, and there is no appeal. However, the parties can mutually agree to withdraw the case from arbitration at any time prior to an award is made by the arbitrator. If they withdraw the case, the arbitrator loses its authority to decide it. It happens many times that the parties are not satisfied because a ‘decision is imposed on them and it often does not get at the root of the problem.’ Issues of power in the workplace Strike is a power-based process; and its cost is very high because much damage and hardship need to be endured in order to achieve the end goal. A strike is when a group of workers agrees to stop working. ‘They do this when they want to protest against something that they think is unfair where they work. Workers go on strike for different reasons: to get improvements where they work; for more money; for shorter working days; to stop their wages going down; or because they think their company has been unfair.’ Usually a dispute settlement arrived at through a strike “leaves a taste as of ashes in the lips of the parties concerned”, because both would be extremely dissatisfied with the result, having had a solution imposed on them by force and having been left with little or nothing. ADR, a cost-effective method ADR reduces cost. The easily quantifiable cost saving from alternative dispute resolution is a reduction in litigation costs. As mentioned above ADR methods resolve disputes informally at the beginning stage and use mediation or arbitration when a third party intervention is needed. This is a non-judicial scheme and therefore avoids much of the cost normally associated with litigation. All legal costs are likely to be reduced or even be nonexistent. Likewise, time spent on each dispute is minimised. The ADR processes such as mediation increase the possibility of mutually agreeable resolution emerging, and arbitration is normally more mundane and predictable than litigation, and more satisfying to the disputing parties. More important, however, is that ‘an alternative dispute resolution system usually goes deep into the root causes such as systems problems, cultural differences, lack of trust, or poor communications, and thereby reduces the number of disputes and the need for third party intervention in the future.’ ADR minimizes ‘wasted time and effort’. Any dispute takes time and energy away from constructive business endeavors, and more so a counter-productive dispute. People who are involved in a dispute think about it, worry about it, and spend much time trying to find a way out of it. Management becomes involved when disputes are with matters affecting the HRD division of the enterprise or when employees need help in resolving disputes among themselves. The management then is required to divert its time, energy, and attention away from activities that should influence the efforts of all employees, and tend to increase the cost of a dispute and the time involved in its resolution. It is the merit of a good ADR system that it can limit the occurrences of disputes and cause them to be handled in a more timely and efficient fashion, thereby helping to reduce the time and effort ‘wasted’ by the disputants and others who need to be involved. (The American Arbitration Association (AAA), A Beginners' Guide to Alternative Dispute Resolution, at www.lectlaw.com/files/adr11.htm, retrieved 24 May 2007) Conclusion ADR offers the most efficacious solution in respect of workplace disputes. However, alternative dispute resolution is not intended to supplant altogether the traditional means of resolving disputes by means of litigation wherein there is an adjudication or final determination of a dispute that is binding on the parties. ‘ADR techniques offer only alternative options to litigation and their desirability is great as they are helpful in avoiding vexation, expense, and delay. However, there are disputes pertaining to a number of important areas, including constitutional law and criminal law which cannot be resolved without resorting to litigation. ADR may not be appropriate for every dispute even in other areas or even if appropriate, it cannot be invoked unless both the parties to a dispute are willing and agree to adopt ADR’. However, it is the ideal mechanism to resolve disputes. ________________ References The American Arbitration Association (AAA), A Beginners' Guide to Alternative Dispute Resolution, at www.lectlaw.com/files/adr11.htm, retrieved 24 May 2007 Bingham, L. B. 2004. "Employment Dispute Resolution: The Case for Mediation," Conflict Resolution Quarterly, Vol. 22, nos. 1-2, pp. 145-74. Brahm, Eric and Julian Ouellet, September 2003 “Designing New Dispute Resolution Systems”, Conflict Research Consortium, University of Colorado, at www.beyondintractability.org/essay/designing_dispute_systems/ retrieved May 25. 2007 Moore, Christopher. "Dispute Systems Design: A Pragmatic Approach for the Development of Procedures and Structures to Manage Ethnic and Political Conflicts." Pacifica Review 6(2) (1994): 43-55. SPIDR (Society for Professionals in Dispute Resolution), “Guidelines for the Design of Integrated Conflict Management Systems within Organizations” (SPIDR, 2000) at www.mediate.com/articles/ford9.cfm/ retrieved May 25, 2007 The Australian Industrial Relations Commission: Dispute resolution procedures in agreements at www.airc.gov.au/wc2k6/fact_sheets/dispute_guide_add.html retrieved May 24, 2007 William Ury, Jeanne Bret, and Stephen Goldberg, 1988, Getting Disputes Resolved: Designing Systems to Cut the Costs of Conflict, London: Jossey-Bass Publishers, 1988 APPENDIX An ADR Scheme: In the event of a dispute arising in the workplace the procedure to be followed to resolve the matter will be as follows: 1. The employee shall first discuss the matter with the floor supervisor or the HRD manager, who will arrange for the appropriate dispute resolution method. 2. The party with the grievance must notify the other party at the earliest opportunity of the problem; throughout all stages of the procedure all relevant facts must be clearly identified and recorded; and sensible time limits must be allowed for completion of the various stages of discussion. However, the parties must cooperate to ensure that the disputes resolution procedures are carried out as quickly as possible. 3. If the matter cannot be resolved through direct negotiation, the HRD manager may arrange, with the full consent of the concerned parties, to settle the dispute through mediation. The mediator's role is advisory. The mediator may offer suggestions but resolution of the dispute rests with the parties themselves. Mediation proceedings are to be kept confidential and private. 4. If mediation fails, the parties may agree to refer the matter for arbitration to one or more impartial persons for a final and binding decision. The arbitrators may be attorneys or businesspersons with expertise in a particular field. The parties control the issues to be resolved by arbitration, the scope of the relief to be awarded, and many of the procedural aspects of the process. Arbitration is less formal than a court trial. The hearing is private. In some cases, it can be prearranged that the award will only be advisory. However, in most cases, the parties may agree or if the law provides arbitration awards are legally binding and enforceable. 5. If the above-mentioned methods of dispute resolution fail, the dispute shall be referred to the statutorily constituted industrial disputes resolution body for appropriate action or direction regarding the dispute. 6. While the above procedures are being followed, work will continue normally (this step is to show that both parties are going to work and doing their normal job as usual while resolution of dispute processes continue). ______________________________ Read More