Alternative Dispute Resolution(ADR)/Workplace Mediation Practice By Adewale Jones

1. Alternative Dispute Resolution(ADR)/Workplace Mediation Practice By Adewale Jones HRMP SHRM-SCP FCIPM FCIArb(UK)

2. What is Alternative Dispute Resolution (ADR)? It is the settlement of disputes/conflicts by means other than resort to the courts which involves settling disputes by litigation.

3. The Goal of ADR • It seeks to preserve/enhance personal and relationships that might be otherwise damaged by the adversarial process of litigation. • It is aimed at producing outcomes that are creativeand satisfactory to the parties in dispute. • It is geared towards a settlement that ensures a lasting solution to the issues in dispute than will be obtained from the court process. • It is aimed at encouraging parties to adopt a problem solving approach including an openness to compromise and co-operate in order to arrive at a win-win outcome.

4. Why ADR and Not Law Suits ? • They are very expensive. • They take a lot of time (including the appeal process). • They create bad blood. • They bring with them some non-economic costs e.g. stress, anger, distraction. • They result in lost productivity. • They engender Low morale between the parties.

5. The Nature and Benefits of ADR • It is hinged on communication because conflicts are usually created socially and can be better managed by communication. • It is less formal thus allowing a spirit of camaraderie in the resolution process. • It is expeditious and cost saving compared with litigation where the cost especially by way of legal and related fees can be enormous. • It reduces the delays usually encountered in litigation. • It offers the opportunity to use processes that are flexible. • It gives the parties more powers to control the process of resolving the issues between them. • It rests on the intercession of an effective and impartial third party who assists in overcoming the stumbling blocks to settlement. • It assists in healing or providing the condition for healing the underlying conflicts between the parties.

6. Various Types of ADR Procedure in General • Negotiation (with some formality) • Adjudication(Used mainly in Construction Disputes) • Mediation • Conciliation • Arbitration

7. Negotiation Negotiation is the process whereby two or more parties work through their dispute usually with a view to coming into some agreement or settlement of same. Types of Negotiation • Adversarial Negotiation -A method of dispute resolution where the parties negotiate from some stated or set positions with the aim to gain concessions from their opponent before they are disposed to a compromise solution. • Principled Negotiation It is more practical than adversarial negotiation. • The aim is to discover and utilise the interest of the parties in arriving at a solution to the dispute between them. • It is contrary to the adversarial method which is based on one party taking a position and forcing the other to make some concessions.

8. Adjudication • In the ADR world, adjudication is widespread mainly in the construction industry particularly in the developed world. • In adjudication, the adjudicator makes decisions that are binding summarily with respect to construction related contractual disputes. • In arriving at such decisions, the adjudicator is not required to follow litigation or arbitration procedures. • It is somewhat similar to arbitration in that the decisions are binding, but the procedure to be adopted and the summary nature of the decision reflectthe difference between the two.

9. Conciliation • Parties may seek to settle their dispute by conciliation. • Conciliation is usually applied in Labour Disputes. • To do this, a written request to conciliate is sent by one party to the other. • Such request must contain a brief statement which sets out the subject of the dispute. • The conciliation proceedings commence on the date of acceptance of the request by the other party. • Once request is accepted, the parties shall refer the dispute to a conciliation body which consists of one or three conciliators. • For one conciliator, appointment is jointly by the parties and for three conciliators appointment of one is made by each party and the last one is made jointly. • The conciliation body begins by understanding the details of the dispute, request for other information.

10. Arbitration What is Arbitration? • It is a procedure for the settlement of disputes under which the disputing parties agree to be bound by the decision of the arbitrator whose decision is final and binding on the parties legally. The Nature of Arbitration • It is based on agreement of parties. • The choice of arbitrator(s) is by the agreement of the parties. • It is private. • It is a flexible and simple procedure such that it can be adopted to suit the particular dispute. • It is cost saving i.e. it makes for quicker decisions • Parties are free to choose the venue and the law of the agreement. • The decision of the arbitrator is final.

11. Arbitration-2 • The Nature of Arbitration (Continued) • The State provides the law to govern the arbitral proceedings • The court enforces and reviews an arbitration award and process where there is disagreement. • Parties to a dispute may be represented if they choose by persons of their choice who need not be lawyers • Use of Experts- Experts can be appointed as arbitrators or invited to clarify issues at the arbitral hearing because of their unique technical or professional knowledge. Types of Arbitration • Domestic Arbitration • International Arbitration • Adhoc Arbitration • Institutional Arbitration

12. Main Components of Arbitration • Arbitration Agreement and Binding Nature. • Appointment of Arbitrator and Appointment Procedure. • Jurisdiction. • Preliminary Meeting and Purpose. • Arbitral Hearing/Documents Only Arbitration. • Arbitral Awards. • Challenge of Arbitral Awards. • Recognition and Enforcement of Awards.

13. Defining Mediation • Mediation is a way of resolving disputes between two or more parties. In mediation, a third party, the mediator, assists the parties to negotiate a settlement. • Better still, mediation is a process in which a disinterested third party (a neutral) assists the parties in workplace dispute in reaching a voluntary settlement of their differences/disagreement. • Put another way, it is a process in which the parties to a workplace dispute, with the assistance of a third party identifies the issues in dispute, develop options, considers alternatives and endeavour to reach an agreement. • Summary- It is about the parties talking and listening to each other and resolving their dispute.

14. History of Mediation • Mediation generally is recorded to have developed in very ancient times precisely in Ancient Greece. • Members of those ancient communities frequently brought disputes before local leaders or wise men to resolve their local conflicts. • The practice turned out to be very successful and before long it became applicable to all facets of human relationships e.g. marital issues, family issues , relationships at work etc.

15. Overview of Mediation • It is an informal process that uses neutral, third-party intervention. • It assists disputing parties in mutually resolving their dispute/ disagreement through peaceful means. • The Mediator does not decide what is “fair,” “ wrong” or “right” neither does he find people guilty or innocent like a judge in the court. • The Mediator does not listen to the parties and draw up the terms of settlement. He cannot force it. Settlement is arrived at mutually by the parties. • He advises and seeks concessions and shift in the position of parties.

16. Characteristics of Mediation • It :- • Involves the use of a less formal means to settle workplace disagreements. • Involves greater flexibility with respect to procedure. • It involves the finding of a common ground acceptable to the parties in dispute. • Promotes confidentiality and openness for honest discussion. • Provides swifter response. • Allows for early resolution of disputes before parties become entrenched in their positions

17. The Nature of Mediation • The neutral third party has no authority to make any decision because he has no determinative role in with respect to the content of the dispute or the outcome of its resolution. • The mediator uses skills to assist parties to negotiate settlement terms and arrive at their own resolution. • The Parties own the process & the decisions therefrom. • It provides an opportunity for better results. • It usually makes for quicker resolution of the dispute. • It makes for decreased stress, reduced disruptions and distractions in the workplace. • It is less formal, flexible, speedy, voluntary, confidential ownership by parties, morally binding etc.

18. The Features of Mediation • Privacy & Confidentiality- i.e. the non-disclosure of anything said or done in a mediation to a non-party/participant. • Voluntariness- i.e. Parties to a mediation are to be involved in the process willingly and not by compulsion. • Empowerment-i.e. the parties to the process are sufficiently capable and able to reach their own decision such that there is no imposition of views. This strand makes for easy acceptability of decisions reached. • Neutrality/Impartiality -i.e. the mediator is a neutral person with responsibility for the mere facilitation of the mediation process. • Uniqueness of Solution – i.e. the resolution is not subject to legal precedents or any other norms thus making way for some level of creativity and informality i.e. It engenders creative solutions to the problem(s) at the centre of the dispute.

19. The Features of Mediation-2 • Ownership Mediation is predicated on the belief that people have the capacity to resolve their own conflicts, whether a complaint, an argument, a relationship difficulty or some other dispute or disagreement even if it may be difficult to do. The view is that indeed that no-one else can do this because it is one’s conflict, He or she owns it. • No-blame Approach Mediation is not an ‘investigation’ which involves searching for ‘the truth’ in which one person is found to be ‘right’ and the other ‘wrong’. An investigation fits within an adversarial, competitive approach to conflict which seeks to apportion blame or fault and to establish one side as a victim or as ‘wronged’  within the situation while the other is deemed the perpetrator or ‘wrong doer’.

20. What is Workplace Mediation? • Workplace Mediation is a confidential, informal and voluntary process whereby an impartial mediator facilitates communication between parties in dispute to assist them in developing mutually acceptable agreements to solve their dispute and thus improve their working relationship. • It is aimed at creating a win-win outcome.

21. Nature of Workplace Mediation • It is less formal. • It is flexible. • It can be speedy. • It is voluntary, • It is confidential • the ownership of the process is by the parties. • It is morally binding. etc

22. Circumstances For the Use of Workplace Mediation - Relationship breakdown. - Bullying and harassment. • Discriminatory conduct. • Manager’s moral circumstance so as not to be accused of bias. • Manager’s lack of sufficient conflict resolution skills. • Grievance related matters. • Disciplinary matters involving employee poor performance etc.

23. Benefits of Workplace Mediation • It is Private/confidential. • The Parties control the mediation. • The process is flexible. • The solutions are usually creative and unique. • The cost is usually minimal. • It provides an opportunity for employees to talk in detail about their experiences and express how they feel. • It allows a fast response to dealing with the conflict thus ensuring that the parties do not become entrenched in it. • It allows parties to fully understand the perspective of others. • It allows parties to identify a way forward. • It gives parties a sense of ownership over the outcome.

24. Benefits of Mediation-CIPD Survey Research 2011 - Improvement of relationship- Cited by 80% of Respondents. • Stress reduction/elimination-64%. • Cost of litigation – 52%. • Retention of valuable employees-63%. • Reduction of non-formal grievances- 57% • Development of culture on people management-55% • Reduction of sickness and absenteeism-33%

25. The Flip Side of Workplace Mediation • The neutral i.e. the mediator cannot impose the settlement. • The neutral i.e. the mediator cannot compel the participation of the parties. • The benefits of following a particular process to make for due process or procedure is lost. • Sometimes a stronger party can influence the outcome. • It is non-binding and unenforceable .

26. Types of Mediation • Facilitative Mediation (a) It is the most widely used form of mediation. (b) It is interest based, concerns problem-solving and it is a rational-analytic form of mediation. (c )The mediator’s primary focus is to the mediation process i.e. to assist parties to communicate with each other so that they can engage in discussions to effectively resolve their dispute (2) Evaluative Mediation (a) It is advisory and normative mediation. (b) The mediator focuses on the substance and merits of the dispute thus, providing assistance to the parties by assessing the merits of the dispute and moving the parties to a compromise. (c) The mediator is more focused on the rights of the parties and makes a determination on the merits of the case and uses his or her influence to move the parties from their positions.

27. Types of Mediation (3) Transformative Mediation. (a) It is also called therapeutic reconciliation mediation. (b) It is built upon the belief that mediation should focus on the parties’ relationship. (c) It seeks to empower the parties to resolve their differences, not just the dispute that brought them to mediation. (d) This approach focuses on both the empowerment of the parties, and the recognition by each of the parties of the other parties’ needs, interests, values, and points of view. (e) Based on the principles of empowerment and recognition, transformative mediators meet with the parties together since this fosters personal growth, acknowledgement, and empathy toward the other party. (f) It believes that mediation has the potential to transform any or all of the parties’ relationships during mediation, so its focus is broader than simply resolving the current dispute.

28. What is Conflict? • Conflict is generally conceived of as relational disputes between two or more parties. • The Oxford Dictionary sees it as “the clashing of opposed principles” • More elaborately, conflict is the existence of a clash of interests, ideas, beliefs, values, actions or directions. • It is an inherent part of any relationship and it is usually a fall-out of a dispute.

29. What is Workplace Conflict? • Workplace conflict is a disagreement or opposition between /among individuals (workers and/or managers) teams ,departments in an organization. • It may manifest as employment conflict, labour-management conflict or conflict between two or more employees.

30. The Nature of Workplace Conflict • Workplace conflict is naturally the product of incompatible or opposing needs, wishes, beliefs and values etc of individuals. • Conflicts in the workplace are products of dispute. Such disputes if unresolved or addressed can grow worse, become conflict and may be costly. • Conflict in the workplace is normal, although stressful. When managed and controlled, such is beneficial because it can stimulate change and increase productivity. • Conflict may be positive but it could also be negative and dysfunctional. • When positive, it can stimulate change which in turn will bring a lot of benefits that will stand the organization and the employees in good stead. • When dysfunctional it creates problems some of which may not be easily amenable to resolution or reconciliation.

31. How Does Workplace Conflict Differ from Workplace Dispute • Workplace conflict has to do with an ongoing situation, unlike a dispute, which is a one-off incident. • For example If a dispute goes unresolved, it can cause a conflict situation. This state of affairs, if left unresolved, can escalate quickly and create a potentially danger.

32. The Dispute-Conflict Chain

33. Some Kinds of Disputes • Constitutional e.g. disputes regarding citizenship, human/fundamental rights, etc • International –as between States(Countries) • Organizational- i.e. intra or inter-organizational disputes. • Employment/Workplace Related-unfair labour practices, wrongful termination or dismissal etc. • Corporate- as in between a company and its share-holders, between shareholders and receivers etc. • Commercial- i.e disputes bothering on contractual relationship and breaches of terms of contract etc. • Consumer- as in disputes between the manufacturer of a product and the consumer or supplier- consumer dispute. • Family –this may be related to inheritance etc.

34. How Does Workplace Conflict Occur? Workplace conflict happens for example:- • (a) when personalities clash. • (b) when team members perceive interference from one another . • (c)when employees feel unable to progress due to another’s actions.

35. How Conflict Manifests • Stage I:- A dispute between one or more employees, without resolution, may result in an uncomfortable working environment. • Such may be characterised by gossip and rumour, an awkward atmosphere and non-cooperation between those involved. • Stage 2:- The atmosphere in stage 1 if unattended to can lead to further dispute in the form of arguments and complaints. • Stage 3:- If the matter remains unresolved hitherto uninvolved parties may become involved and take sides. Incidents escalate and tension rises. Parties become increasingly unproductive as all their energy is directed towards the matter. • Stage 4:- It becomes obvious that the dispute has evolved into conflict. Without management intervention the conflict can become crisis resulting in clashes, emotional outbursts, resignations, verbal abuse, even threats of physical violence. • The key questions are –(a) how was the situation allowed to get out of hand? (b) how do we prevent a crisis situation from happening in the first place?

36. Steps to Take at the Dispute Stage • Step 1: Bring the disagreeing parties together • Step 2: Lay down ground rules for the intervention. • Step 3: Identify the problem/issues. • Step 4: Understand both parties position • Step 5: Move forward by finding a solution to prevent a reoccurrence of the dispute? • Step 6: Review the situation later with both parties.

37. The Sources and Types of Workplace Conflicts • Relationship/ Interpersonal Conflict: This is a conflict that may arise when one person behaves in a negative manner or may be as a result of one persons perception of another based on e.g. stereotypes and rumours etc. In this case, relationship is affected negatively, performance affected due to lack of team cohesion. • Value Conflict: This arises when people or groups have different views regarding for e.g. moral values bothering on what is right or wrong. • Interest Conflict :- This occurs when desired wish or interest of one person is in conflict with that of another person or group. Usually, this happens when one person is of the view that the desires or interest of the other if allowed will affect his or her own interests from being achieved. An example is when two people who have a not too smooth relationship with each other are required by their manager to work as a part of a team.

38. The Sources and Types of Workplace Conflicts-2 • Organizational Conflicts:- They stem from various factors within the organization and sometimes are induced by factors outside the organization, • Examples are:- (a) Labour/management and supervisor/employee tensions usually triggered by power differences. • (b) Differences in supervisory styles • (c) Conflicts bothering on (i) pay equity, (ii) resource allocation, (iii) the distribution of duties, (iv) workload and benefits, (v) fairness in treatment between employees or groups of employees. - (d) Good Practices of other organizations particularly similar ones can be a source of conflict those practices are being demanded by employees. • Conflicts Induced by Trends/Change -Modern workplaces have significant levels of stress - and conflict that are related to change-management and technological change. Such result in changing work methodologies constant reorganization etc

39. The Sources and Types of Workplace Conflicts-3 • Conflicts induced by Poor Communication-i.e. where the management or superiors do not communicate effectively, this can create conflict. For example, a supervisor who gives unclear instructions to employees can cause confusion as to who is supposed to do what, which can lead to conflict. • Conflicts Caused by Poor Performance –e.g. a situation where an employee is not "pulling his weight, "this can lead to conflict, that can escalate into a confrontational situation. • Conflicts Ignited by Harassment- This can take many forms e.g. sexual or racial harassment .Organizations that do not have strong harassment policies in place are in effect encouraging the behavior, which can result in conflict. • Conflicts Caused by Limited Resources - Organizations that are looking to cut costs may scale back on resources such as office equipment, access to official vehicles or the reduction in spending limit etc.. Employees may feel they are competing against each other for resources, which can create friction in the workplace regularly.

40. Myths about Workplace Conflict • Myth 1: Conflict In the Workplace is Bad. We do know conflict is not inherently bad. It is a normal thing in any gathering of people especially because they have different personality and they are coming from different backgrounds. • Myth 2: Conflict is Win-Lose. Conflict is often mistakenly viewed as an undesirable contest of wills, power and determination where one person wins and the other loses thus reducing its potential benefits. This assertion is not true. • Myth 3:Only Bad Employees Cause Conflict. The so called bad or difficult employees may be contributors to conflict, but there are also workplace conflicts between the supposedly good, productive and dedicated employees.

41. “Life will always have conflict. The idea is not to live life without conflict. The idea is to deal with conflict gracefully.” Zen Proverb

42. The Mediation Process A typical mediation process consists of eight(8) stages:- • The initiation or commencement stage. • The preparation stage. • The introduction stage. • The problem statement stage. • The problem clarification stage. • The generation and evaluation of alternatives. stage • The selection of alternatives stage. • The agreement stage. Note that there is always an overlap between stages d, e, f, gand are repeated before a consensus is reached by the parties an agreement is finalised.

43. Workplace Mediation • Cost of Conflict • Time consuming. • Engenders absenteeism. • Diverts management time. • Can lead to turnover and replacement costs. • Lower staff morale, commitment and productivity. • Poor working relationship. • Loss of focus. • Creation of a blame culture. • Damage to organizational reputation.

44. Workplace Mediation-2 • Who Mediates? -Employee(s) trained and accredited as mediators as internal mediators and/or -Representative(s) of a firm of mediators. • The Role of the Mediator • The mediator is not a judge as to say one person is right and the other is wrong or to issue directives. • He is in charge of the process seeking to resolve the problem and not to impose solutions or determine the outcome. • He explores issues, feelings and concerns of all participants. • Helps to open up opportunities for the resolution of the dispute. • Helps to engender communication to resolve the issues at stake.

45. Workplace Mediation-3 • Mechanism used by the Mediator He uses the joint problem solving approach to:- (a) Identify the various interests and real issues in the disagreement. (b) Identify options for the resolution and settlement of the dispute. • Stages in the Workplace Mediation Process Stage 1-Mediator Holds separate meetings with the parties to know their respective story. Stage II- (a) Holds joint meeting to hear the issues, summarise the areas of agreement and disagreement and put forward the agenda for the for the rest of the mediation. (b) Joint meetings continue, the issues are explored involving communication and the changing of perceptions.

46. Workplace Mediation-4 • Stages in the Workplace Mediation Process(continued) (c) The mediator continues to encourage and support joint problem solving by the parties, ensures the solution and agreements are workable and record any agreement reached. Stage III- Closing the Mediation Agreement having been reached, the mediator brings the process to a close. Provides a copy of the agreed statement to those involved and explains their responsibilities for its implementation Note:- (i) Sometimes no agreement is reached and other procedure may be used to resolve the conflict. (ii) In the event of a future legal suit, what happened during the mediation cannot be a subject of discussion without the agreement of both parties

47. Workplace Mediation-5 • Putting in Place a Mediation Scheme (a) Option I -Develop in-house mediation scheme with trained in-house mediators (b) Option II –Use the services of an external mediation firm/mediator (s) on the basis of call-on arrangement. Note the two approaches are not mutually exclusive and can be used along side each other. • Determinant of the Option to Choose. (a) Cost/investment required in setting up an internal scheme viz-a-via the use of an outside firm or expert. (b) Size of the organization-a small organization may find the cost of internal arrangement high. (c) Geographical spread of the organization • Type and people practices and culture of the organization.

48. Workplace Mediation-8 • Guidance for use where arrangement is internal e.g. booklet for managers and for staff which is to state

49. Workplace Mediation-9 Selecting Mediators for the In-house Scheme. • Voluntary/self nomination • Manager’s/ Superior’s nomination. • Either option please set proper criteria re:- experience and/or knowledge in conflict/dispute management. • An organization may also wish to train some of its staff as mediators. HR Practitioners as Mediators • The general view is that HR practitioners as superintendents of people are likely to be good mediators because of their people skills. • The challenge in having them as mediators is because of the possible direct conflict between their role as mediators and as HR practitioners.

50. Some Skills of a Good Mediator • Active listening. • Good reasoning. • Observation • Ability to summarise. • Problem solving. • Ability to reflect and rationalise. • Rapport building. • Facilitation. • Reframing. • Information analysis, • Planning and time management. • Inclination for procedure etc.