Alternative dispute resolution
Alternative dispute resolution is an umbrella term for processes in which an impartial person assists those in dispute to resolve the issues between them.
Alternative dispute resolution processes may be facilitative, advisory or determinative with the process selected to best suit the nature of the dispute.
The Public Service Regulations (Regulation 5.1(4)) acknowledge alternative dispute resolution as a means of resolving employee complaints. Agencies are increasingly using alternative dispute resolution, in conjunction with the review of actions scheme. For example, when employees make inquiries about lodging review of actions applications, human resource practitioners may offer mediation as the first step in resolving the employee's concerns.
Some larger agencies, in particular the Department of Defence, have invested significantly in alternative dispute resolution and formalised it as a strategy for responding to workplace conflict.
The Department of Defence employs alternative dispute resolution (ADR) as the preferred method for the resolution of workplace conflict. The ADR and equity programs are delivered through Fairness and Resolution Centres in each mainland capital city.
These centres are staffed by Fairness and Resolution practitioners who are trained in conflict coaching, mediation and group facilitation processes. They also employ a technique unique to Defence called Interactive Problem Solving. Interactive Problem solving requires a practitioner to work with a commander, manager or employee to explore and examine all aspects of a conflict or dispute, to consider options for resolution and to make a choice on a course of action.
The Fairness and Resolution practitioners also provide awareness and skills training in equity and diversity and the prevention and early resolution of workplace conflict.
The department has 55 mediators (who hold accreditation under the National Mediator Accreditation Scheme), 25 accredited conflict coaches and 11 qualified group facilitators… There are 13 full-time Fairness and Resolution practitioners (who possess the range of ADR skills) in the regional Fairness and Resolution centres.
Evaluation of the programs shows that there is increasing acceptance and trust within the organisation of ADR processes and that the practitioners who deliver the services are held in high regard.
Using ADR appropriately
Mediation – is a voluntary process in which the parties to a dispute, with the assistance of a neutral third party (the mediator) identify issues, consider alternatives, develop options and endeavour to reach agreement. The mediator has no advisory or determinative role on the content or outcome of the dispute but may advise on the process for resolving the dispute. Mediation is usually conducted in private and the outcomes are confidential to the parties to the mediation.
Workplace conferencing – brings a group of colleagues together with a neutral and qualified facilitator in situations where there is conflict in the workplace or past disputes that have not been adequately resolved. The intention of the conference is to enable everyone affected by the dispute to consider what happened, the effects on people and the best way forward to resolve the issue.
Conciliation – is a process in which the parties, with the assistance of the conciliator, identify the issues in dispute, develop options, consider alternatives and endeavour to reach agreement. A conciliator will provide advice on the matters in dispute and/or options for resolution, but does not make a determination. The conciliator is responsible for managing the conciliation process.
Arbitration – is a process in which the participants to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator) who makes a binding decision.
Alternative dispute resolution is becoming increasingly professionalised with professional associations, codes of practice and national accreditation standards.
An industry–based national accreditation scheme for mediation commenced in January 2008. The National Advisory Council on Alternative Dispute Resolution (NADRAC), which advises the Attorney-General on the development and promotion of alternative dispute resolution, was involved in the development of the scheme.
Some agencies have invested in training their human resources staff in mediation. Where agencies are offering mediation for workplace disputes, it is recommended that the people providing these services meet national accreditation standards.
Using ADR appropriately
Agencies are being encouraged through the work of NADRAC to adopt a strategic approach to managing and resolving disputes more generally and to make a cultural shift from using adversarial processes. Looking at alternative ways of resolving workplace disputes is consistent with this approach.
However, the principles underpinning alternative dispute resolution interventions may place some constraints on using particular methods in particular disputes. For example, when suggesting mediation, human resource practitioners need to consider the following:
- participation in mediation has to be voluntary
- some disputes are suited to mediation and some are not
- the neutrality and independence of the mediator are important for the credibility and success of the process.
Mediation is not suitable for all forms of disputes. For example:
- Disputes which raise behavioural issues serious enough to be considered under the agency's procedures for investigating suspected misconduct, should not be dealt with through mediation. In these circumstances the agency must be seen to reinforce appropriate standards of behaviour publicly. The private agreements reached through mediation do not allow for this.
Both parties need to feel that mediation is a safe process in which their concerns can be aired and listened to respectfully. The interests and behaviours of the parties to a dispute may mean the dispute is not suited to mediation. Skilled mediators conduct pre-mediation screening (intake assessments) to determine whether mediation is likely to be successful given the values, interests and behaviours of the parties.
In addition, it is important to the success of mediation that the mediator is seen to be neutral and independent. Conflict resolution skills are a useful part of the package of skills of human resource practitioners. However, unless an agency is large enough to provide a service that is independent of the consultancy and management advisory function of the human resources, it may be more appropriate to source mediation from the industry than to develop expertise in-house.
While mediation may not always be the most appropriate response to a workplace dispute, the expanded scope of alternative dispute resolution processes provide a suite of options. In addition, where formal statutory interventions are necessary such as an investigation of suspected misconduct, once the investigation process has run its course, alternative dispute resolution techniques can assist in rebuilding relationships in the workplace. While participation in alternative dispute resolution is voluntary it may be particularly helpful where there is a need to deal with the emotional impact of workplace conflict, and where the restoration of workplace harmony, teamwork and improved productivity is the goal.
2. See for example LEADR, a not for profit membership organisation of alternative dispute resolution practitioners at www.leadr.com.au/.