Mediation and Its Merits as an Alternative Method of Employer-Employee Dispute Resolution

By Twomey, Rosemarie Feuerbach | Competition Forum, July 1, 2006 | Go to article overview

Mediation and Its Merits as an Alternative Method of Employer-Employee Dispute Resolution


Twomey, Rosemarie Feuerbach, Competition Forum


EXECUTIVE SUMMARY

Workplace disputes, whether domestic or international, can be resolved peacefully and effectively by the use of mediation, a method that is growing in importance and popularity. Its many benefits include the cost-effectiveness of the process, both in execution costs and in the savings attributed to the long-term effects of cementing and improving productive relationships between and among workers and management.

INTRODUCTION

Historically, as a means of resolving disputes, mediation is not generally the first method that comes to mind. Feuding parties who cannot successfully negotiate an end to their conflict may resort to the use of courts, if not to coercion or even violence, before considering other methods of dispute resolution. However, more and more parties are recognizing early on that utilizing the courts to settle a case has many downsides, and they seek resolution through one of several alternative methods for peacefully resolving disputes. The most popular method has been arbitration, but in recent years sparring parties have turned to mediation as the preferred means of resolving disputes because, among other things, the settlement that is reached is one that both parties have mutually arrived at and the relationship between the parties can be preserved if not actually strengthened. In the ordinary or traditional mediation model, this resolution is then reduced to a written document and is binding just as a contract would be binding. If no agreement results from the mediation process, the parties retain the option of taking the matter to court.

MEDIATION VS ARBITRATION

As noted above, mediation is one of several methods of what is known as "alternative dispute resolution." Frequently when persons are asked what methods, other than lawsuits, are available for resolving disputes, the answers include arbitration and mediation. However, when asked to distinguish between the two, there is a lack of clarity. The two methods are, in fact, quite different. An arbitrator acts as a judge, and makes a decision that is binding on the parties. A mediator facilitates a settlement between the parties that reflects an agreement the parties have mutually created and to which the parties are then legally bound.

The distinction between arbitration and mediation may have become blurred because of the growing trend both domestically and abroad that requires litigating parties to submit their disputes to arbitration or mediation. In either case, when the mediation or arbitration is thus mandated by a court, the resolution will not be binding on the parties. In other words, if either party is not satisfied with the results of the process, the matter will return to the courts for resolution. It is only when parties voluntarily enter into arbitration and mediation that the final outcome will have a binding effect on the parties. In arbitration this means the decision made by the arbitrator, and in mediation it is the agreement that the parties have fashioned between themselves. Mandatory mediation is considered by some to be problematic-unwilling participants are not likely to engage productively in the process, thereby making the mediator's task difficult, if not impossible. Furthermore, if such mediations often fail, mediation as a dispute mechanism will ultimately be seen as an ineffective process (Smith 1998).

ELEMENTS OF SUCCESSFUL MEDIATION

Mediation success depends on several factors, among them the attributes of the mediator, the type of mediation used, the timing of the process, whether mediation is mandatory or voluntary, and the subject matter of the dispute.

The skill and experience of mediators range from poor skills and scant experience to highly-trained and long-serving, effective mediators. Unlike the well-established realm of arbitration that has been functioning for decades, with such wellknown and heavily utilized organizations as the American Arbitration Association, mediation is, relatively speaking, still in the toddler stage. …

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