From: Staffing
Additional Dispute Resolution Procedures
Conciliation
Conciliation is a process in which a third party, called a conciliator, restores damaged relationships between disputing parties by bringing them together, clarifying perceptions, and pointing out misperceptions. The conciliator may or may not be totally neutral to the interests of the parties. Successful conciliation reduces inflammatory rhetoric and tension, opens channels of communication, and facilitates continued negotiations. Frequently, conciliation is used to restore the parties to a predispute status quo, after which other ADR techniques may be applied. Conciliation is also used when parties are unwilling, unable, or unprepared to come to the bargaining table.
Convening
Convening serves primarily to identify the issues and individuals with an interest in a specific controversy. The convenor, a neutral party, is tasked with bringing the parties together to negotiate an acceptable solution. This technique is helpful where the identity of interested parties and the nature of issues are uncertain. Once the parties are identified and have had an opportunity to meet, other ADR techniques may be used to resolve the issues.
Facilitation
Facilitation improves the flow of information within a group or among disputing parties. The neutral party, called a facilitator, provides procedural direction to enable the group to effectively move through negotiation towards agreement. The facilitator’s focus is on the procedural assistance to conflict resolution, compared to a mediator who is more likely to be involved with substantive issues. Consequently, it is common for a mediator to become a facilitator, but not the reverse.
Fact-Finding or Neutral Fact-Finding
Fact-finding or neutral fact-finding is an investigative process in which a neutral “fact finder” independently determines facts for a particular dispute, usually after the parties have reached an impasse. It succeeds when the opinion of the neutral carries sufficient weight to move the parties away from impasse, and it deals only with questions of fact, not interpretations of law or policy. The parties benefit by having the facts collected and organized to facilitate negotiations or, if negotiations fail, for traditional litigation.
Interest-Based Negotiation or Bargaining
Interest-based negotiation, also called interest-based bargaining, is an established negotiating technique through which the parties meet to identify and discuss the issues at hand to arrive at a mutually acceptable solution. It is a positive effort by the parties to collaborate, rather than compete, to resolve a joint dispute. The focus of negotiations is on common interests of the parties rather than their relative power or position. The goal is to reduce the importance of how the dispute occurred and create options that satisfy both mutual and individual interests. Interest based negotiations are also referred to as “principled” or “win-win” negotiations. This informal process is one of the most fundamental methods of dispute resolution, offering parties maximum control over the process. It does not necessarily require the use of neutrals.
Masters or Special Masters
Masters or special masters are neutral parties appointed by a court in accordance with judicial rules. The master assists the parties to manage discovery, narrow issues, agree to stipulations, find facts, and, occasionally, reach settlement. In nonjury actions, the court may accept the master’s findings of fact.
Mediated Arbitration
Mediated arbitration, frequently referred to as “med-arb,” is a combination of mediation and arbitration. Initially, a neutral third party mediates a dispute until the parties reach an impasse. After the impasse, a neutral third party issues a binding or nonbinding arbitration decision on the cause of the impasse or any unresolved issues. The disputing parties agree in advance whether the same or a different neutral third party conducts both the mediation and arbitration processes. Use of the same person for both processes creates a problem when the mediator turned arbitrator must ignore previously acquired confidential information.
Mini-Trials
This technique provides for a summary presentation of evidence by an attorney or other fully informed representative for each side to decision makers, usually a senior executive from each side. After receiving the evidence, the decision makers privately discuss the case. A mini-trial is not a small trial; it is a sophisticated and structured settlement technique used to narrow the gap between the parties’ perceptions of the dispute and which “facts” are actually in dispute. This hybrid technique can occur with or without a neutral’s assistance, but neutrals frequently facilitate the processes for presentation of evidence and discussion among the decision makers and serve as a mediator to reach a settlement. Mini-trials can be more expensive than most other ADR techniques because the cost of presenting even summary evidence to senior executives is high. Therefore, this process is generally reserved for significant cases involving potential expenditure of substantial time and resources in litigation.
Ombudsman
An ombudsman is a specific individual who is authorized by an employer to confidentially receive complaints or questions about alleged acts, omissions, improprieties, and broader systemic problems within the ombudsman’s defined jurisdiction. The ombudsman is also charged with the duty to address, investigate, or otherwise examine these issues independently and impartially. It is essential that the procedures used are fair in order to ensure a just resolution of the matter.
An ombudsman may make formal or informal reports regarding the results of a review or investigation. They may also make recommendations regarding how disputes should be resolved. Additionally, based on an agreement with the employer, an ombudsman may initiate litigation to enforce or protect the authority of the office.
Open-Door Policies
Open-door policies offer a quick resolution to disputes by encouraging employees to bring grievances to their immediate supervisors. An open-door policy requires a commitment by managers to listen and react to employees. Managers must be trained to identify particular problems that may require a particular investigational procedure. For example, allegations of sexual harassment or safety concerns should be referred immediately to senior management for appropriate investigation and resolution.
When the immediate supervisor is the cause of the problem or lacks authority to resolve the problem, successful open-door policies allow employees to take their grievances to different levels within the organization.
Open-door policies may prevent litigation by correcting problems before injury or harm occurs. Should an employee bring suit against an employer, the records from a good-faith open-door policy may demonstrate that an employer was attempting to accommodate employees with a venue to amicably handle concerns and grievances. However, an employee may pursue litigation after exhausting his or her options within an open-door policy.
Partnering
Partnering is a pre-emptive technique to avoid disputes before they arise by building a strong relationship between parties. The goal is for the parties to avoid a major dispute, or alternatively, minimize disruptive impact, by focusing on the development of a cooperative working relationship rather than an adversarial one. Partnering is a relatively new hybrid form of dispute resolution.
Peer Review Panels
Peer review panels or dispute resolution panels use groups or panels to conduct fact-finding inquiries, assess issues, and present a workable resolution to resolve disputes. In workplace personnel disputes, the panel is generally composed of knowledgeable employees and supervisors. Panels may be standing groups or formed ad hoc from a pool of qualified employees and supervisors. In contract disputes, the panel is often composed of two or more neutral subject matter experts selected by the disputing parties. Decisions of the panel may or may not be binding, depending on the advance agreement of the parties. This method attempts to resolve disputes at their inception to avoid traditional litigation.
An employer may opt to use a peer review panel to review and resolve employee disputes, at least concerning disciplinary action or discharge. The panel consists of a mix of employees and managers (some employers use peer review panels consisting exclusively of employees) who hear and evaluate employee appeals from disciplinary or other actions.
While these peer review panel decisions are not final, binding, or a legal deterrent to filing suit, as a practical matter they unquestionably reduce the risk of employment litigation.
The reduced risk is based upon the employees’ perception that the employer has treated them fairly, the fact that employees receive a form of due process in reviewing the disciplinary action, and plaintiffs’ attorneys recognize that a decision by the employees’ peers reduces the sympathy factor in an employment lawsuit.
Although peer review is primarily used for handling employee disciplinary complaints, with properly trained panelists it may also be designed to cover other workplace issues. However, matters such as compensation, performance reviews, benefits, layoffs, and company policy would normally be excluded from their consideration. Additionally, groups acting in a true peer review capacity are generally excluded from the National Labor Relations Act’s proscription on dominated labor organizations, which may affect the legitimacy of employee committees.
Peer review panels do not deal with the employer within the realm of making proposals to management, which the employer accepts or rejects; rather, they act in a decision-making capacity. (The availability of further review by top management does not alter the fundamental nature of their role.)
Elements of an Internal Peer Review System
An employer would determine an employee’s eligibility for peer review. This determination would be based upon how to maximize the benefits to be achieved from a peer review system. Many times, employers view employee eligibility for the peer review process in the same way as other employment benefits. For example, eligibility might include all regular full-time and part-time employees who have completed a specified length of service with the organization, excluding probationary or temporary employees.
In order to achieve the greatest return for implementing peer review, the option for peer review should be treated as an additional employment benefit.
Peer review should be capable of handling a range of employee complaints, from discipline to termination. With a properly trained group of panelists, it may also be designed to cover discrimination issues, including sexual harassment. Matters that generally are excluded from peer review are compensation issues, performance reviews, benefits, layoffs, and company policy.
Initially, employees with a complaint would be encouraged to resolve the dispute by following the existing procedure of using the chain of command, including the open-door policy when appropriate. If the dispute is not resolved at this point, the employee has the option of either bringing the complaint to the attention of a designated senior executive for a final and binding decision or taking the matter to a review panel under the peer review process.
If a review panel is chosen, the employee selects one facilitator from a list of trained facilitators. The chosen facilitator then coordinates the panel’s selection, meeting, and actions.
Generally, about 10 percent of the employer’s total workforce should be trained as potential panelists. The facilitator arranges for the employee to randomly draw names for panelists. If it is a panel of five, the employee draws six names, keeping three for the panel with one alternate for each panelist. The employee then draws the names of four management representatives, keeping three for the panel with one alternate.
The facilitator collaborates with the employee focusing on the employee’s presentation and ensures that the employee obtains all appropriate documents for the panel. At the meeting of the panel, the facilitator plays a significant role in making sure the employee and the panel carry out their respective roles.
Private Judging
Private judging is an approach midway between arbitration and litigation in terms of formality and control of the parties. The parties typically present their case to a judge in a privately maintained courtroom with all the accouterments of the formal judicial process. Private judges are frequently retired or former public judges with subject matter expertise. This approach is gaining popularity in commercial situations because disputes can be concluded more quickly than under the traditional court system.
Settlement Conferences
A settlement conference is an ADR technique either permitted or required by statute in many jurisdictions as a procedural step before trial. An assigned or jointly selected settlement judge typically applies mediation techniques to strongly suggest a specific settlement range based on his or her assessment of the case. However, these judges play a stronger authoritative role than mediators since they also provide the parties with specific substantive and legal information.
Summary Jury Trial
Summary jury trial is a formal but abbreviated trial involving a presentation by the disputing parties to a panel of jurors. This process “reality tests” the case with a nonbinding jury verdict to encourage the parties to negotiate for a settlement based upon their new assessment of litigation risk.
