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Individual disputes at the workplace: Individual disputes at the workplace: alternative disputes resolutionalternative disputes resolution
Labour Relations Agency
Dublin _ 31 March 2010
Christian Welz Christian Welz
Eurofound, DublinEurofound, Dublin
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OutlineOutline
I. Methodology
II. Typology
III. Extent of use
IV. Types of ADR in use
V. ADR and the Worker
VI. Funding ADR
VII. Experts
VIII. Views of social partners / trends
IX. Conclusion
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I. MethodologyI. Methodology
comparative analytical report
of EIRO and EWCO
EU 27 national reports (-FR +NO) structured questionnaire
1 overview report John Purcell, ACAS / Warwick
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II. Typology of ADRII. Typology of ADR
A) judicial ADR
= use of third parties engaging prior to a court hearing
B) non-judicial ADR
= some MS emphasise the role of the SP partners in the workplace in providing an avenue for a worker to resolve a dispute at the level of the works council or similar institutions
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A. Typology of ADRA. Typology of ADR
conciliation third party acts only as a facilitator by maintaining
the two-way flow of information between the conflicting parties and encouraging a reconciliation between their antagonistic positions
mediation third party helps two or more people in dispute to
attempt to reach an agreement first type is similar to conciliation, whereby the
mediator meets the parties with a view to finding an acceptable solution and then issues a non-binding recommendation
similar to mediation in collective labour disputes
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A. Typology of ADRA. Typology of ADR
second type tagged ‘relational mediation’, based on the principles of collaborative problem-solving, with the focus on rebuilding relationships mediator guides the parties towards finding their
own solution by getting them to explore different and new ways of thinking and acting
usually conducted without representatives or lawyers being present and no written decision is issued
origins in family mediation
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A. Typology of ADRA. Typology of ADR
arbitration the third party hears the case presented by each
person and makes a binding ruling on the outcome
labour inspectors or ombudsmen/women specialist experts deal with individual disputes inside
their workplaces (e.g. IE) in some countries appointed by the state to deal with
particular types of disputes (e.g. discrimination)
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B. Typology of ADRB. Typology of ADR
non-judicial ADR
involve the SP engaging in joint efforts to resolve the problem
through negotiation, problem-solving and/or the use of grievance and disciplinary
procedures
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II. Typology of ADRII. Typology of ADR
mainly non-judicial AT, DE, DK and SE
both judicial and non judicial IE, IT, LU and UK
distinct form of ADR bipartite conciliation commissions
EE, LT, LV and PL
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III. Extent of useIII. Extent of use
Countries with low use of ADR
Countries with medium / high use of ADR
Belgium (BE) Austria (AT)
Bulgaria (BG) Cyprus (CY)
Czech Republic (CZ) Germany (DE)
Estonia (EE) Denmark (DK)
Finland (FI) Ireland (IE)
Greece (EL) Italy (IT)
Hungary (HU) Malta (MT)
Latvia (LV) Norway (NO)
Lithuania (LT) Spain (ES)
Luxembourg (LU) Sweden (SE)
Netherlands (NL) United Kingdom (UK)
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IV. Types of ADR in useIV. Types of ADR in use
conciliation CY, IE, IT, MT, NO, ES and UK
mediation AT, BE, BG, CY, DE, EE, ES, HU, IE, LV, LU,
NL, NO, PT, RO, SI, SK and UK court based: NL and UK established by law: SK established by SP: PT
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IV. Types of ADR in useIV. Types of ADR in use
mediation relational mediation: FI and UK modified relational mediation: IE
arbitration AT, CY, CZ, DK, ES, IE, IT, LU, NO, PL, PT, SI,
SE and UK labour inspectors
EE, EL and LU ADR by SP
AT, DE, DK and SE
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IV. Types of ADR in useIV. Types of ADR in use
labour dispute commissions EE, LT, LV and PL
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V. ADR and the workerV. ADR and the worker
direct application to the appropriate ADR mechanism most common practice often assisted by TU if worker is member
need for in-company procedures to have been used before court application 12 MS no such restriction in 10 MS
mandatory withdrawal of claim ES, RO, UK or, if agreement is reached
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VI. Funding of ADR servicesVI. Funding of ADR services
conciliation in general funded by the state
if lawyers are used > paid by parties
where mediation provided by private individuals / companies fee must be paid usually borne by the employer
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VI. Funding of ADR servicesVI. Funding of ADR services
award of costs/fines/compensation by the courts can inhibit the use of ADR
DK: lawyers often wish to resolve the cases according to the letter of the law
IT: TU retain 5% - 10% of any compensation
UK: growth of ‘no-win, no fee’ legal practices fewer conciliated settlements if lawyers believe that
the case can be won in the tribunal and the compensation awarded will exceed that offered at the conciliation stage
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VII. Experts in conciliation, mediation and VII. Experts in conciliation, mediation and arbitrationarbitration
experts in conciliation are often civil servants e.g. EL, IE, IT, LV and UK
growth of mediation > specialist centres list of approved mediators
BE, CY, EL, PT, RO and SI private mediation centres
HU, LV, NL and PL private independent third parties
IE former managers, trade union officials and
staff from state-run, third-party bodies
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VIII. Views of social partners on ADR VIII. Views of social partners on ADR
support and growing use BE, BG, CY, CZ, ES, FI, IE, IT, LU, LV, MT,
NO, PT, RO, SI, SK, UK
neutral attitude & no change in practice AT, DE, DK, EE, EL, HU, LT, NL, PL, SE
trends growth in ADR in majority of MS views of SP often coincide on ADR, idem for gov. general TU support except for some forms
e.g. relational mediation in IE, IT, UK
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IX. ConclusionIX. Conclusion
use of ADR is growing across Europe
broad definition of ADR is the more helpful covering non-judicial as well judicial forms
optimistic estimate two thirds of judicial ADR interventions are
successful relational mediation
not well established but an area where interest is growing in a few countries
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IX. ConclusionIX. Conclusion
growth of mediation as a private practice raises questions over the need for entry or
qualification standards along with training and some form of canons of good practice already occurring in MS
arbitration, by definition, is used as a last resort evidence seems to suggest that it is not a popular form
of ADR too inflexible and has little advantage over a court
hearing
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IX. ConclusionIX. Conclusion
TU and EMP generally in favour
governments as well
lawyers and judges less enthusiastic
increased take-up likely in the future
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http://www.eurofound.europa.eu/eiro/studies/tn0910039s/index.htm
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