In the normal course of events,
the prevention of disputes and conflict in the workplace is a key goal of employers
However, for one reason or another,
disputes arise and so attention turns to their resolution. Unless carefully managed,
workplace disputes have the potential to spin out of control and in so doing damage
the foundation of all harmonious workplace relations - the trust and confidence
between employers and employees.
Resolving disputes before they get
out of hand and in a way that contributes to, and reinforces, the trust between
the parties should be a key objective in successful workplace practices. Alternative
Dispute Resolution (ADR) techniques can play a useful role in the achievement of
ADR, as a broad concept term, has
been kicking around for well over a decade. It embraces a number of alternative
methods of resolving disputes such as:
- Attempts to reconcile disputants and conciliate between disputing
- The mediation of disputes, and;
- Private arbitration.
Alternative methods of resolving
disputes have developed as a response to the deficiencies (perceived and real) of
the traditional court-based adversarial system.
The most common criticisms of the
adversarial system focus on its cost and the snail's pace at which it moves. The
legal profession and judiciary have not been blind to these problems and have had
a leading hand in promoting ADR. Nevertheless, it is clear that there is plenty
of scope for the wider application of ADR, particularly in the area of disputes
between employees and their employers.
Federal Government policy is to
give formal legislative recognition to mediation for industrial disputes.
Minister Peter Reith was issued
a discussion paper in relation to the issue which suggests that mediation could
be of assistance in resolving industrial disputes but that it would be a voluntary
alternative or supplement to the formal processes of the Australian Industrial Relations
At present, there is little incentive
for the parties to use mediation as a means of resolving protracted disputes.
The "no disadvantage" test means
employers have little negotiating flexibility. Meanwhile, industrially strong unions
can engage in protracted disputes to enhance conditions with little recourse to
the AIRC to "break" the dispute. In the absence of incentives that make ADR processes
more attractive than recourse to industrial muscle, ADR will not usually be of assistance
in disputes where there is an inequality of bargaining power between the parties
One option being explored by the
Federal Government is for compulsory pre-strike ballots including the provision
of notice by those intending to take industrial action, a cooling-off period and
the availability of mediation options during the cool-off. Individual grievances
Some of the techniques that come
under the ADR umbrella are in current usage in the area of unfair dismissal.
Both the AI RC and its NSW counterpart
attempt the conciliation of unfair dismissal applications. There is, however, some
concern about the uneven application of the technique. Additionally, many of the
tribunals and commissions that deal with discrimination claims also apply ADR techniques
by attempting to conciliate and mediate before turning to the commission-based arbitration
as the final option.
Private sector provision
In addition to the ADR providers
in the public sector, there are a number of organisations and individuals in the
private sector that offer ADR services. As with all service provision, some care
has to be exercised in the selection of appropriate ADR service providers to ensure
they are appropriately qualified and experienced.
As noted above, there are a wide
variety of techniques that come under the heading of ADR.
Outside of the cases where tribunals
or commissions offer ADR as part of their own process, the parties to disputes are
pretty much free to deploy the ADR technique that best suits their needs. Additionally,
where the parties are able to select an appropriate technique, they also have the
autonomy to select the third party that is to be involved in the resolution of their
A critical principle of ADR is that
a decision of the conciliator or mediator cannot be imposed on a party to the process.
It is obviously important, therefore, that parties approach ADR genuinely seeking
to resolve their issues.
ADR practice over the last decade
or so tends to lend support to the view that these techniques have much to offer
disputing industrial parties. However, they are not cost-free and can be counter-productive
unless the parties enter the process with a fair degree of goodwill and the determination
to make it work. In other words, ADR is not, and has never been, a quick-fix cure-all.
It is, perhaps, just another of the many tools that are in the management kit bag.