Alternative Dispute Resolution

Alternative Dispute Resolution
by Professor Kevin Nwosu ~ Nigeria
Accra, Ghana; May 2009


Kevin, a Professor of Law, is one of those people who immediately command the attention and respect of an audience. He led us through the complex topic of Alternative Dispute Resolution with comsumate easy, no notes and a highly ammusing, entertaining and engaging style. Rather than attempt to mirror his style in this simple blog I will attempt to review some of the areas he convered.

Conflict is on the increase

The consequences of the current economic situation could mean you need to deal with job/role changes, management re-structuring, agreeing terms of leaving a post, finding common ground and agreeements on partnership arrangements or restoring more effective working relations and practices or it may well be that the option of just leaving a job is no longer there and people have to find ways to resolve the issues between them in order to continue working together in a productive way.

Resolving disputes is costly and time consuming

There are many factors to explain why there is a need for alternative dispute resolution ~ the huge increase in the number of employee complaints (employment tribunal cases reached record levels last year), the higher levels of compensation, the continuing introduction of new employment legislation, the increase of employee conflicts including harassment and bullying and, for many, the realisation that formal procedures and investigations can in some circumstances be so adversarial and stressful to all concerned that any possibility
of people working together again is minimal.

What is 'Alternative Dispute Resolution?'

Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that fall outside of the legal or judicial process. Despite historic resistance to ADR by both parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.

The Brave New World of Dispute Resolution

When normal conversation and negotiations fail litigation has been the primary resort for resolving disputes for centuries. The trend over the last 10 years has seen the number of cases referred to litigation drop steadily year by year. The number of Solicitors and even Judges training as facilitators is also on the increase. Many parties have determined that litigation should be used as a last resort, and partly by market conditions, where many are shying away from the cost, time and uncertainty of litigation. Ask any business man what is the best way of sorting out a problem and he is certainly going to give you a scale starting with doing a deal directly and ending with litigation if all else fails. Most would rather
maintain control and cut a deal preferably on favourable terms rather than rely on the Courts.


What are the options? These are the most common

  • Adjudication
  • Arbitration
  • Conciliation
  • Expert Evaluation
  • Mediation



ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court appointed mediator or mediation panel. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession.

Adjudication

This is the process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved. While adjudication can be entered into voluntarily it is generally a legal process and the outcomes are binding.  Adjudication is now the most common
form of dispute resolution in the construction and engineering industry and often contained as a clause in the contract signed prior to work beginning.

Arbitration

This can be used to resolve any dispute provided there is an agreement to use it. The neutral arbitrator is appointed to resolve any dispute that their parties refer, and he or she is bound respectively by the arbitration rules agreed and by the general tenets of the Arbitration Act 1996.  In arbitration, while participation is typically voluntary there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement
will be resolved by arbitration. Although parties may appeal arbitration outcomes in Court later, such appeals face an exacting review of the process and results of the previous arbitration.  Arbitration can be made mandatory and binding, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.

Conciliation

This is the use of an agreed neutral third party to act as both mediator and if the dispute does not settle through the conciliation the third party may also be asked to act as adjudicator. The third party often possess some expert knowledge in the relevant domain. The decision is final and can be made binding unles set aside by
litigation or arbitration. Conciliation is generally a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator.  If a party rejects an offer to conciliate, there can be no conciliation. When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.

Expert Evaluation

This involves a neutral expert being appointed by the parties to decide on either a technical or legal issue, and the decision is usually agreed as final and binding.

Mediation

This is the most common ADR process where the mediator is appointed purely to assist the parties reach a decision. The process is entirely voluntary and confidential. The mediator, who facilitates the resolution process has no advisory role so while they may suggest a resolution this can not be  imposed as a resolution on the parties. Mediation aims to assist two (or more) people in reaching an agreement. The parties themselves determine the
conditions of any settlements reached... rather than accepting something imposed by a third party.  Mediators use techniques and skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement on the disputed matter. Normally, all parties must view the mediator as impartial.

Several different styles of mediation exist: evaluative, facilitative, and transformative. Evaluative mediation has somewhat of an advisory role in that its practitioners evaluate the strengths and weaknesses of each side's argument should they go to court; whereas facilitative mediators and transformative mediators do not do this. Furthermore, the definitions of mediation used by the different styles of mediation differ in that evaluative mediation has the main drive and goal of settlement, while transformative mediation, in contrast, looks at conflict as a crisis in communication
and seeks to help resolve the conflict, thereby allowing people to feel empowered in themselves and better about each other. The agreement that arises from this type of mediation occurs as a natural outcome of the resolution of conflict.

Workplace Mediation is a structured process whereby an impartial mediator facilitates communication between those in
dispute in order for them to come up with mutually agreed solutions on how to improve their working relationship in the future.

Workplace Mediation is becoming an increasingly popular dispute resolution method to resolve interpersonal employee

conflicts including harassment and bullying complaints.

Workplace Mediation is based on the principles of encouraging constructive communication in a safe and confidential environment, identifying mutual solutions and agreements and restoring respectful, professional working relationships.

In many cases of harassment or bullying, people want certain behaviours or language to change and do not wish to go down
the route of formal investigation, particularly if they want the working relationship to continue. Often there are issues on both sides which could be helped by better communication and understanding - facilitated by an experienced mediator. If the mediation is not successful or if the complaint is more serious, then people can always invoke formal or legal procedures. Mediation is also more likely to support individual employees in resolving their working difficulties and to actively encourage respectful working practices.

If you want to know more about Kevin and his work in Africa then check out the Employment Relations Center

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