Improving Performance of Dispute Resolution Systems: Global Perspectives

1. ILO global researchImproving the performance of individual dispute resolution systems: A global perspectiveOhrid, FYROM18 October 2016 Minawa Ebisui Labour Law Reform Unit (LABOURLAW) Governance and Tripartism Department International Labour Office, Geneva

2. ILO research on performance of individual labour dispute resolution systems • Follow-up decisions by the Governing Body concerning the Cartier Working Party conclusions (2002): Recommendations Nos. 92, 130. • Proposal for general discussions on “promoting sound industrial relations through the prevention and resolution of labour disputes” (2012) • Conference conclusions concerning the Recurrent Discussion on Social Dialogue (2013) • Plan of Action to follow up on the ILC discussion on social dialogue endorsed by the 319th Session of the Governing Body (2013) • Progress of research and preliminary findings will be informed to the 328th Session of the Governing Body concerning the Agenda of the International Labour Conference (2016)

3. ILO research: what has been done • Over 50 country studies conducted in all regions, using a pre-established research questionnaire, to examine: • Both judicial and extra-judicial dispute resolution mechanisms and processes, including: • Specialized labour court/tribunal procedures; • Conciliation/mediation and arbitration; and • Bipartite voluntary procedures through the participation of employers and workers. • Interaction between these mechanisms, and their connection to labour inspectorates • Research workshops in 2015 • Book on OECD countries

4. Book on OECD countries Resolving individual labour disputes: A comparative overview Edited by Minawa Ebisui, Sean Cooney and Colin Fenwick Forthcoming (November 2016) Reference: Print: 978-92-2-130419-7[ISBN] Web PDF: 978-92-2-130420-3[ISBN] Contact(s): To order printed copies: ilo@turpin-distribution.com

5. - • Legally guaranteed access and coverage • Lack of jurisdictional and procedural clarity/complexity • Cumbersome and lengthy procedures • Multiplicity of institutions and processes • Limitations on substantive /normative rights protections including FPRWs • Procedural disconnections and limitations Multiple challenges to effective systems • Broader political economy • Policy changes and law reforms • Labour market situations • Budgetary constraints • Lack of coordination at international level • Lack of statistical and case management systems and their cost • Overemphasis on efficiency • Limited evidence on quality (e.g. confidence and trust, impartial and fair processes, outcomes, capacity of practitioners) • Lack of assessment criteria • Difficulty in establishing a balanced combination of various mechanisms • Gap between unionized and non-unionized workers in terms of access to justice • Low or declining coverage of collective voice mechanisms (trade unions and other representation mechanisms) • Limited or premature industrial relations and social dialogue • Limited focus on the role of collective mechanisms by law or in practice • Weakerclaimants, particularly the vulnerable do not tend to access in practice even when they are legally guaranteed to access. • Lack of or limited adherence to and/or enforcement of conciliation/mediation agreements, arbitration awards, judicial orders or rulings • Complex, costly and lengthy enforcement process • Increasing need to establish either judicial or quasi-judicial specialized labour court/tribunal or arbitration procedures to ensure expertise, at the same time providing options that are speedier, less formal, less costly and thus more accessible. • Ordinary courts are lengthy, expensive, lengthy and complex • Alternative pathways (e.g. non-discrimination and equality bodies): lack of coherence across various forums • Limited access to and/or lack of free legal aid and representation services • Case overloads • Different meanings and processes depending on forums • Limited coverage • Limited focus and use • Lack of appropriate incentives • Lack of understanding of the meaning, processes, benefits, expected outcomes • Limited capacity of conciliators/mediators and understaffing • Over-emphasis on efficiency: quality concerns • Budget constrains • Human resources constraints • Overloaded with settlement of disputes • Limited focus on statistical and case management

6. Common responses and innovations Key private actors/entities Social partners Workers’ representatives Lawyers/law firms Judicial mechanisms Private conciliators/ mediators and arbitrators Administrative mechanisms Dispute resolution Labour inspection Alternative pathways (e.g. human rights or non-discrimination bodies) NGOs and community organizations

7. Scarcity in good practices and innovations – further research needs • Enhancing the quality of settlement procedures and outcomes – what criteria • What are major challenges to ensuring the quality of conciliation/mediation that hinder meaningful access to justice? • What kind of criteria can be used to assess the quality of conciliation/mediation? • What efforts are being made to ensure the quality of conciliation/mediation? • Available empirical research findings on the quality of conciliation/mediation

8. Scarcity in good practices and innovations – further research needs • Improving adherence to and enforcement of outcomes • What are major causes of such challenges? In what kinds of disputes do such implementation challenges exist? • What efforts or innovative practices are adopted to ensure that settlement agreements, judicial orders, rulings or enforcement orders are appropriately adhered to or implemented? What is their impact? • Available statistics or empirical research findings on the level of their adherence or implementation

9. Further research needs • Strengthening the role of bipartite procedures through collective voice mechanisms • What are the major shortcomings of, or challenges to, effective functioning and use of such processes? • What kinds of legislative or policy measures are effective to encourage bipartite processes and to ensure appropriate connection to formal mechanisms? • What sorts of services (e.g. information, advice, counselling, training, Q&A/guidelines) are provided to encourage voluntary prevention and settlement of disputes?

10. Scarcity in good practices and innovations – further research needs • Coordination between different administrative authorities, and between them and judicial authorities beyond the labour administration systems • Coordination at the supra-national/international level

11. Ways forward • Research continues to work to identify guiding principles for effective individual labour dispute resolution systems, taking into account the global developments in access to justice, in the context of the Sustainable Development Goals. • Forthcoming publications • Working papers • Policy briefs • Global comparative synthetic report