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Alternative Dispute Resolution programs provide managers and workers with fast and effective solutions to workplace problems. The program offers a cost-efficient forum that can resolve differences between managers and employees. This type of resolution process is common in situations involving unions, but some non-union companies also utilize this process. Alternative Dispute Resolution systems operate in three steps (Zashin 24: 24). Step one occurs when an employee files an internal complaint with the employer.
The employer then determines whether the complaint has any merit.
The Human Resource Department or a personnel specialist usually evaluates the complaint. If the employer denies the complaint or the remedy requested, the employee remains free to appeal the employer’s decision. If the employee exercises that right, the case proceeds to step two. During this step a neutral mediator is brought in and attempts to bring the employer and employee to a mutually satisfactory resolution. Because mediation is non-binding, either party may choose not to resolve the dispute at this step.
If the complainant and employer agree with the results of the mediation, the process is completed and the case is closed. If no agreement is achieved the process continues with step three. During step three a neutral arbitrator hears the evidence and renders a decision that binds both the employer and the employee. Enforceable alternative programs empower the arbitrator to award any damages that are available in a court of law. Rarely can the parties overturn an arbitrator’s decision. Conflict resolution theories continued to expand and managers at all levels were educated in the styles and practices of solving disputes.
Newer theories suggest that there are three conflict stages, which are daily events, challenges, and battles (National Press Publication). Each stage has it own characteristics and solutions. Daily events, or stage one, are the ongoing everyday conflicts that occur and require little action. Most people have learned to cope with stage one conflict long before they enter the workplace, and often do not even realize when it occurs. People usually deal with this type of conflict by either avoiding the irritant, or by agreeing.
We see and hear people doing this everyday when one walks away from someone trying to start an argument, or by agreeing to do something for someone so they will go away. Should the occasion arise where a manager must deal with stage one conflict it is best to first determine if either party involved is carrying residual emotions from another event. To settle stage one conflict it is best to identify points of agreement and use these points to rectify the issue. Challenges, or stage two conflicts, have an imbedded element of competition. Self interest and the perception of how one looks becomes important in stage two conflicts.
The parties involved see the solution as a win-lose situation. Stage two problems cannot be managed with normal coping strategies. Stage two conflicts in the workplace must be resolved or it will continue and escalate. Manager intervention is essential. The manager should setup an informal meeting between the parties on neutral ground. The manager should have an agenda, stick to it, and remain in control. Solve the dispute through the examination of the facts, teamwork, and by pushing the competing parties toward common ground. Consensus and not compromise is the goal.
When people move to the battles mode, or stage three, they move from wanting to win to wanting to hurt. A person who has escalated to the level of stage three conflicts is right and wants to punish the offending party for the injustice done unto him. Stage three conflicts usually involve a long lasting dispute and efforts to dissolve the issues have failed creating mistrust between the parties. Strikes and lockouts are an example of stage three conflicts. It is often necessary to bring in a third party to resolve this type of conflict (National Press Publication).
The best method of applying the theories discussed is through a quick review and by applying the theories to an actual labour conflict. The case chosen for the examination of the principles outlined above is “Arrow Electric Company versus the National Labour Relations Board. ” The relevance of this case to Law is not of importance. Arrow Electric Company versus the National Labor Relations Board is important because it details an ineffective dispute resolution system.
This case is also significant because it has not been evaluated from a conflict resolution perspective. Alternative dispute resolution (ADR) and the advantages and disadvantages of ADR The term ADR stands Alternative Dispute Resolution. This includes anyway which is used to resolve disputes without going through the courts. Many different methods may be used, ranging from simple discussions between the two parties and end up negotiating to a formal arbitration hearing. ADR can include a wide variety of ways to resolve you distribute.
The main once are negotiation, mediation, conciliation and arbitration and are the main once that will be discussed in detail in this report. Below is a detailed description of the different ways of resolving cases out of court. Alternative Dispute Resolution (ADR) covers a range of conciliation and mediation processes, which can be applied to various aspects of the law including commercial disputes and employment disputes. Negotiating is where anyone who has a dispute with another person will always try to resolve it by negotiating directly with him or her to come to an agreement without taking it any further.
The advantages of this are considerably good as it is completely private and is the cheapest and defiantly the quickest way of resolving your dispute. If the two parties cannot to an agreement they may both decide to bring in solicitors, which will try to help negotiate a settlement but at a cost. In fact, even if a court proceeding takes place the two solicitors will try to come to an agreement to settle out of court on behalf of their customers. Once solicitors are involved there will be a cost element to the dispute and the longer the negotiations go on the higher the costs will be.
If the dispute cannot be settled, the next stage is mediation. Mediation is where the two parties appoint an independent person who will not decide the dispute, but who will work with the parties to enable them to reach a settlement. He may try to help by evaluating the strength of the parties’ cases, or by acting as a go-between in negotiations. Mediation takes place on a confidential and without-prejudice basis, until a settlement is reached with which both parties are happy. A high proportion of mediations are successful – according to some figures, about 80%.
Give the fact that mediation can be rapid and informal, and far cheaper than legal proceedings; its increasing popularity is no surprise. Parties have full control over the process, as contrasted with what happens when court proceedings are commenced and proceed to judgement at trial. Mediation offers a viable and intelligent alternative. It is suitable in most types of disputes and is most valuable in that the mediator acts as a catalyst to the negotiation process and works with the parties to produce creative and workable solutions.
A mediator will not usually tell the parties his or her own view on the dispute; it is job to act as a piece keeper so that an agreement can be made as quickly as possible. The mediator is not working against the parties. The parties and or their solicitors do not need to convince the mediator they have a good case. They need to convince the other side that any solution achieved through the mediation is more favourable than either side could achieve by going through court.
However, a mediator can be asked for their opinion and in this case, the mediator becomes more of an evaluator, which again aims at ending the dispute. However, at the end of the day mediation is only suited if there is a hope that the parties can co-operate. Conciliation is similarities to mediation in that a third person helps to resolve the dispute, but the main difference being that the conciliator will usually play a more active role I solving the dispute than a mediator. They may suggest grounds of compromise and to do the up most to settle the dispute quickly.
This is the same as mediation in that it may not be that the case is resolved and may still end up in court. Arbitration means appointing someone to hear both sides of the dispute and decide who is right. The arbitrator may be a lawyer or a surveyor, or some other sort of expert, or simply someone whom the parties to the dispute both trust. The process is confidential and so is any amount of compensation that the arbitrator awards. Sometimes the arbitrator makes their decision based on papers that each person gives them to support their case.
At other times, they hold a hearing where both sides can present their cases. However, this is usually less formal than a court hearing. The actual procedure is left to agreement of parties in each case, so this means there are many forms of hearings. In some cases, the parties may opt for paper arbitration where both parties produce a report of their case with any points they wish to raise in writing. This is supported by any documents that may support their case. The arbitrator will then read all the documents and make his/ her decision.
The date, time and place of the arbitration hearing are all matters for the parties to decide in consultation with the arbitrator. This gives a greater deal of flexibility to the parties and arrangement can be made which is convenient to both parties. Tribunals operate alongside the court system and have become an important and integral part of the legal system. However, unlike the other methods of ADR where the parties decide not to use the courts to solve their disputes you cannot go to court to solve disputes after deciding on a tribunal because it must be used instead of using the courts.
There are many types of tribunals including social security tribunals, rent tribunals, mental health review tribunals and employment tribunals. The tribunals usually have a panel of three to hear a case the chair and two lay people with knowledge of the topic. The hearings are informal and in private except employment, tribunals are more formal and open to the public. There are many advantages and disadvantages of using ADR and using the courts. The two parties may choose their own mediator or arbitrator and can be help at a time and place to suite both parties also being informal.
The matter is dealt with in private and with no publicity and the case will be dealt with more quickly and cheaply than it would through the courts. In negotiation, mediation and conciliation sessions the two parties are in control and can stop the proceedings at any time. An agreement will be reached if both sides accept the proposal. Using ADR it does not involve like the courts in one person winning and the other losing. The courts will not get overloaded because a large amount of cases get settled without using the courts.
The main advantages are that it is cost efficient, quick and informal. ADR is more interested in getting an agreement with both parties and will help to keep the relationship with the two parties. The arbitration can be enforced by law and are usually well established. The disadvantages are that the other parties may walk away from the alternative and may still end up in court because an agreement is uncertain. Arbitration can be expensive to still cheaper than the courts and still has a winner loser outcome.
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