CHARTERED INSTITUTE OF PERSONNEL MANAGEMENT OF NIGERIA

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

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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.

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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.

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Various Types of ADR Procedure in General

• Negotiation (with some formality)
• Adjudication(Used mainly in Construction
  Disputes)
• Mediation
• Conciliation
• Arbitration

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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.

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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
  reflect the difference between the two.

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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.

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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.

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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

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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.

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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/disagree
  ment.
• 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.

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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.

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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.

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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

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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.

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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.

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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 ones 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.

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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.

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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

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Circumstances For the Use of Workplace Mediation

• - Relationship breakdown.
• - Bullying and harassment.
• Discriminatory conduct.
• Managers moral circumstance so as not to be
  accused of bias.
• Managers lack of sufficient conflict resolution
  skills.
• Grievance related matters.
• Disciplinary matters involving employee poor
  performance etc.

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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.

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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

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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 .

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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 mediators 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.

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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.

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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.

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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.

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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.

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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.

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The Dispute-Conflict Chain
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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.

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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
  anothers actions.

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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?

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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.

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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.

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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

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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.

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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.

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Life will always have conflict. The idea is not
to live life without conflict. The idea is to
deal with conflict gracefully.
Zen Proverb
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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, g and are repeated before a
  consensus is reached by the parties an agreement
  is finalised.

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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.

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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.

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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.

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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

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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.

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Workplace Mediation-8

• Guidance for use where arrangement is internal
  e.g. booklet for managers and for staff which is
  to state

89 Booklet for Managers Booklet for Staff
1. What is mediation? What is mediation?
2. Why chose mediation? Why chose mediation?
3. When is mediation appropriate? How do I decide if mediation is appropriate for my matter?
4. What is the line Manager s responsibility? What can I expect from the mediation process?
5. What commitment is required from the line Manager? What is about the mediation agreement?
6. What next after the agreement?
7. Frequently Asked Questions
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Workplace Mediation-9

• Selecting Mediators for the In-house Scheme.
• Voluntary/self nomination
• Managers/ Superiors 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.

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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.

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Some Qualities of a Good Mediator

• Empathy.
• Impartiality/Fairness.
• Independence.
• Accessibility and approachability.
• Non-judgmental.
• Honesty.
• Creativity.
• Credibility and integrity.
• Flexibility etc.

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The Breakdown of Mediation

• This could be as result of -
• The withdrawal of one party.
• Tension in the mediation process.
• The behaviour of one of the parties.
• One party is too depressed to continue.

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The Final Point A mediation process may end with
or without an agreement even where there is no
breakdown of the process e.g. an improvement in
the relationship of the conflicting parties.
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Thank You For Your Attention