SUBLINEA 1.2: CONVIVENCIA Y PAZ

Table 2 outlines the various practices and procedures associated with this concept.

Table 2. Key ADR practices and procedures

ADR Practices Key elements of practice/procedure and Procedures

Preventive ADR Averting conflict at work by creating procedures that promote cooperative

interactions between management-employee relations. This practice does not actually stop disputes. Rather, it provides a mechanism for channelling disputes into problem solving processes.

Negotiated The substance as well as the procedures of

Rule-Making any law, rule or regulation are negotiated before they become final. Often called ‘reg- neg’.

Joint Problem Solving Parties who usually represent opposing interests on an issue use Interest Based Problem Solving procedures to reach a settlement.

Negotiated ADR Disputants reach their own (without a neutral) resolution to a dispute or matter through interest-based principles of problem solving, i.e. coming to a solution which satisfies all disputants' interests and concerns.

Interest-Based Problem Resolving problems by identifying interests,

Solving (IBPS) i.e. needs, desires, concerns, fears, and coming up with options which address all the interests of those involved in solving the problem.

Negotiate To discuss, bargain and confer with another (or with multiple parties) to arrive at a settlement of some matter.

Facilitated ADR A neutral assists disputants in reaching a satisfactory resolution to the matter at issue. The neutral has no authority to impose a solution.

Mediation A voluntary process where a neutral, acceptable to the disputants, assists the parties in resolving a mutual problem, exploring options for resolution, which focuses on the future relationship of the parties. The neutral is neither a decision- maker nor an expert adviser.

Conciliation To reconcile or appease in an act of good will with the assistance of a neutral.

Ombudsperson A neutral who reviews a complaint and assists in reaching a fair settlement. Sometimes this neutral will be utilised as a clearinghouse for the various types of ADR procedures suitable for the matter at issue.

Fact-Finding ADR A neutral, often but not always a technical or subject matter expert, examines or

appraises the facts of a particular matter and makes a finding or conclusion. This

procedure may be binding or non-binding depending upon the parties.

Early Neutral A neutral reviews aspects of a dispute and

Evaluation renders an advisory opinion as to the likely outcome.

Expert Fact-finding A neutral with appropriate expertise in the matter, reviews aspects of a dispute and renders either a recommendation or decision.

Advisory ADR A neutral third party reviews defined aspects of a dispute and gives an opinion as to the likely outcome.

Early Neutral A neutral reviews aspects of a dispute and

Evaluation renders an advisory opinion as to the likely outcome.

Mini-trials In this instance, the neutral may predict the likely outcome of a formal adjudication. The process is voluntary, quick and non-judicial.

Non-Binding A decision rendered which is essentially a

Arbitration recommendation. The neutral may advise on a possible settlement.

Imposed ADR A neutral makes a bindingdecision

regarding the merits of a dispute. Disputes are usually over a possible breach of contract or agreement. The neutral party may be an individual or panel. This type of ADR is closest to traditional dispute resolution.

Binding Arbitration A third party (individual or panel) renders a decision with which the disputants must comply. There are limited appeal rights to a higher authority.

The key point to note in Table 2 is the catch-all character of ADR. For this reason, it is important to set out the origins of the concept. For the most part, these lie in American human resource management. Specific features of the USA employment relations system are pertinent to explaining the rise of such practices, particularly in the late eighties and nineties.

Since the early sixties the two most pronounced features of American employment relations have been the virtual disappearance of collective bargaining from USA industry and the expansion of legal regulation of the employment relationship. With the demise of a ‘collective method’ to resolve disputes effectively, more and more individuals who considered that their legal employment rights had been violated sought redress through the normal judicial process. The result was a massive increase in the number of legal cases claiming violation of statutory employment rights going before the courts. This trend was particularly marked in the late eighties. Employers reacted to this litigation explosion by writing employment contracts which required a prospective employee to sign, as a condition of recruitment, a commitment to arbitrate alleged breaches of statutory rights, particularly in the area of unfair dismissals and give up their right to use the courts to settle such grievances (Blancero, 1995). A measure of uncertainty existed about

the legality of such employment contracts. In 1991, the USA Supreme Court cleared up this uncertainty in its ruling in the controversial

Gilmer case. The Supreme Court ruling in this case approved the use of binding arbitration by non-union employers to resolve disputes over employment discrimination claims. It gave employers the green light to develop employment contracts that contained binding arbitration clauses as an alternative to litigation. Contracts of this kind make it difficult, if not impossible, for workers to use the courts to enforce statutory employment rights. For the past decade, USA companies have been busy building new ‘private’ systems of dispute resolution that are purposely designed to disconnect in-house procedures form external arrangements that exist to enforce statutory employment rights (Rowe, 1993). Table 3 outlines the main ADR arrangements that have been put in place by employers.

Table 3. Alternative Dispute Resolution Mechanisms

Type of ADR Key elements of ADR mechanism

mechanism

Ombudsman A designated ‘neutral’ third party inside an organisation assigned the role of assisting the resolution of a grievance or conflict situation. The activities of an ombudsman include fact-finding, providing counselling and conciliation between disputing parties. High-grade persuasion skills are the key asset of a good ombudsman.

Mediation A process under the stewardship of a third party designed to help those involved in a dispute reach a mutually acceptable settlement. The third party has no direct authority in the process and is limited to proposing or suggesting options that may open a pathway to a mutually agreeable resolution.

Peer Review A panel composed of appropriate employees or employees and managers which listens to the competing arguments in a dispute,

reflects upon the available evidence and proposes a resolution. Whether or not the decision of the panel is binding varies across organisations.

Management Review Sometimes called dispute resolution boards,

Boards these panels are solely composed of managers and have more or less the same remit as peer reviews. Again the decision of the panel may or may not be final.

Arbitration A neutral third party is empowered to adjudicate in a dispute and set out a resolution to the conflict. This may or may not be binding depending upon the prevailing labour legislation and the design of the arbitration process.

Some argue that it is too simplistic to trace the rise of alternative dispute systems to the Gilmercase, arguing that these arrangements would have occurred anyway (Marks et al, 1984). In other words, opinion differs as to why organisations establish ADR systems. Although the most popular position is to view ADR as of a piece with a wider trade union substitution strategy being pursued by employers, other motivations have been identified as important drivers behind the ADR movement (Block et al, 1996). In no order of importance these include:

• greater employee preference for dispute resolution mechanisms that are more individual in focus and confidential

• the spread of 'soft' HRM strategies that seek to diffuse enlightened employment relations strategies

• growing government concern with the overload experienced by many statutory institutions responsible for reducing conflict at work

• greater diversity in organisational forms and economic activity that is weakening established institutional methods for resolving workplace conflict.

2.2.1 The content of ADR

Whatever the precise motivations, ADR practices have spread rapidly across USA companies (Cohen, 1991). The type of ADR mechanisms introduced varies across organisations. Some use a single procedure such as an Ombudsman while others offer a more comprehensive multi-layered programme. One multinational company has a five-option ADR scheme involving the following:

• an open door policy that encourages an employee to discuss a problem with their supervisor or manager in confidence and without fear of retaliation

• an employee hotline that offers an employee, who wishes to remain anonymous, the facility of ringing an advisor to find out the available options to solving a problem • a conference which involves an employee discussing the

problem in a formal setting with a representative of the company to work out a procedure to solve a grievance or dispute

• a mediation facility to help solve the dispute. Either party can request this alternative, which involves obtaining the services of a trained external arbitrator to preside over proceedings. If mediation is invoked then each party is obliged to participate, but the process is non-binding

• an arbitration facility is also offered if the dispute has not been resolved at an early stage. The employee can elect to make the process binding. The procedure is formal and involves an external arbitrator receiving written submissions from the various involved parties and listening to evidence in a hearing. If an employee grievance is upheld then the arbitrator can make an award that is equivalent to any of the options open to a court of law.

This is a comprehensive 'deep' ADR system, which would be the exception: most organisations would operate a more streamlined procedure, involving only one or two options.

The scope of ADR mechanisms differs across organisations (McCabe, 1988). Some companies confine their use to particular groups of employees or certain sections of the company or an identified list of employment related matters. Some large

companies with multiple sites may have both unionised and non- unionised establishments. In such a situation, some employees may be covered by collective bargaining agreements that could include written procedures for the handling of disputes and grievances while other employers may be 'covered' by an ADR system. All in all, ADR procedures vary considerably in complexion and purpose. The literature assessing the impact of ADR is still relatively underdeveloped. Much of what has been written on the subject either focuses on ‘best practice’ rules for the diffusion of such arrangements or debates the implication of ADR for worker rights (Rowe, 1993). With regard to the best practice rules the literature suggests that alternative dispute resolution procedures reach full potential under a number of conditions.

• Senior management must show active and committed support.

• Employees should actively participate in the design of an alternative dispute resolution procedure.

• ADR procedures should be triggered as early as possible in a dispute.

• Due process must be upheld at all times, otherwise the credibility (and thus the effectiveness) of the system will be jeopardised.

• ADR outcomes should be monitored so that managerial or organisational practices can be amended to avoid similar disputes arising in the future.

The last point is seen as particularly important. Virtually all guides to ADR encourage enterprises to recognise the broader potential of such arrangements. Thus, for example, ADR procedures, if successfully employed, may permit an organisation to learn more about the shortcomings and risks associated with particular business practices and processes (Weston and Feliu, 1988).