Employment Dispute Resolution
Employment Dispute Resolution (Employment Law)
Conflicts are commonplace in workplaces and transpire between personnel and managers in the course of employment engagement. Consequently, employment dispute resolution (EDR) developed as an area responsible for addressing disagreements that occur in the course of employment and during termination, particularly if the decision is regarded as unlawful. Typical cases of employee disputes include issues of discrimination under the law, whistle-blower retaliation, wrongful discharge, compensation of workers, violation of wages and working hours, disputes associated with occupational safety and working conditions, communication issues, and breach of contract among other concerns (Carneiro, Novais, Andrade, Zeleznikow, & Neves, 2013). The problems are outside the collective bargaining agreement scope, and they are addressed through state and federal laws. Therefore, such laws have authorized the establishment of programs by courts and administrative agencies to resolve employee disputes through various interventions. Mediation is one of the commonly used alternative dispute resolutions used at the organizational level to address employment disputes. Although employment mediation/dispute resolution is an effective approach in addressing various disputes in employment relations, barriers associated with communication issues might adversely hinder the success unless effectively resolved.
Dispute Resolution through Mediation
Mediation is a form of employment dispute resolution that is effective in dealing with employment disagreements. The approach is an alternative method for addressing disputes, involving employment relations. The law mandates organizations to establish policies and programs that support mediation in disputes emanating from their workplaces. The Employee Dispute Resolution policy aims at increasing options for employees to address employment-related disputes and to motivate appropriate voluntary solutions to arising issues before they escalate into serious legal problems. According to Carneiro et al. (2013), through the employment dispute resolution, employees are encouraged to seek an equitable and satisfactory resolution to conflicts that occur in their workplaces through open discussions with the management or individuals involved in the conflict. The process allows for a less stressful settlement of everyday disputes arising in the workplace.
The law mandates employers to seek potential solutions whenever they face employment disputes. Bollen and Euwema (2013) support the argument by stating that employees are encouraged to seek guidance from the human resource department regarding disputes in the workplace to achieve a successful resolution. Organizations recognize the importance of using alternative methods to resolve conflicts instead of relying on adversarial processes, which can be lengthy and costly. Consequently, employees and employers are protected from the court and adversarial processes that could end up damaging employment relationships. Hence, mediation provides a successful and efficient method for addressing common disputes in the workplace (Carneiro, et al., 2013). As an initiative, organizations in both public and private sectors have implemented effective programs to support employment mediation.
In the United States, employment dispute resolution is implemented following particular legal guidelines, including the Dispute Resolution Act of 1998 and the Equal Employment Opportunity Commission (EEOC). The Dispute Resolution Act of 1998 was signed into law by President Clinton in October 1998 to give authority to all federal courts in the country to create an employment dispute resolution program. According to Nolan-Haley (2013), the program would legally allow various agencies and organizations to use alternative dispute resolution approaches to address employment and other disputes. Bollen and Euwema (2013) add that even state courts would also use the mediation program to ensure effective resolution of disputes. The Equal Employment Opportunity Commission (EEOC) has implemented mediation procedures to support its operations in addressing employment disputes, especially those related to discrimination in the workplace. State and local anti-discrimination agencies use similar processes to achieve the objective of dealing with employment disputes (Nolan-Haley, 2013). Consequently, the country has witnessed an increase in the number of would-be employment litigations resolved through mediation.
Employment mediation plays a vital role in issues arising from employment contracts. In Gilmer v. Interstate Johnson Lane Corp., 111 S.Ct. 1647 (1991),[1] the United States Supreme Court extended the use of arbitration to employment contracts under the Federal Arbitration Act. The decision in the case and its progeny allowed companies and organization to come up with internal mediation and arbitration programs to enable dispute resolution (Gough, 2014). The programs would lead to binding settlements without the need for employees to move to administrative agencies or courts to seek support in cases of violation of their rights. Under the various acts, the United States acknowledges the importance of mediation and other alternative dispute resolution procedures to address issues arising from employment relations. The Civil Rights Act of 1991, an amendment to the Act of 1964 is among the most recent efforts by the federal government to support alternative methods of dispute resolution (Bollen & Euwema, 2013). The law supports and promotes the use of employment dispute resolution using the mediation approach.
Application of Employment Mediation
A better understanding of mediation includes information on the different approaches to the process. Gough (2014) reveals three practical approaches to intervention, including facilitative, evaluative, and transformative. Mediators use the different methods depending on the demands of each situation. When using the facilitative form, the mediator avoids any opinion in the process. However, in the evaluative process, the mediator is free to provide a piece of advice regarding the case. For example, the mediator can add an opinion regarding the value of evidence, terms of a reasonable settlement, and possibility of success among other views. Transformative mediation aims at altering the relationships between the parties in a dispute to increase understanding of the position of the other party and enable better communications between them.
Consequently, the mediator changes the course of addressing the dispute. In the context of the employment law, transformative mediation is the most commonly used and in most cases between entirely facilitative and evaluative forms. The technique usually applies to cases where the parties in the dispute do not have a continuing relationship, for example, where the complainant has ceased to work for the employer (Gough, 2014). Generally, the mediator is expected to use the most effective technique depending on the demands of a particular situation. Hence, the mediator should investigate the unique conditions surrounding each dispute and critically analyze the nature of the conflict before beginning the mediation process.
Mediation is increasingly being used as an alternative dispute resolution method involving employment conflicts. Some companies have taken a step further to implement mediation programs or policies to guide the process in their workplaces. Such efforts are critical in preventing instances of the adversarial process in issues that can be resolved quickly in out-of-court settlements (Moore, 2014). Various cases of a dispute are reported in organizational settings, including conflicts between employees, performance issues, harassment complaints, and termination. According to Gough (2014), due to their constant interactions, employees experience various disputes, which if left unresolved, can become significant problems for the organization. Such issues affect individual employees and the performance of the organization. Hence, employers can use mediation as a means of addressing such disputes promptly to prevent the escalation to a detrimental level. Therefore, mediation plays a role in resolving conflicts between employees in a confidential, impartial, and nonjudgmental manner enabling workers to improve their relationships and interactions in the workplace.
The performance of employees is critical in all organizational settings. However, such performance can decline for various reasons, including poor communication, personal relationships, misunderstanding about roles and responsibilities, and misperceptions among other issues. Mediation provides an alternative and productive way of addressing the challenges to improve the performance of employees (Moore, 2014). The process is an alternative to the standard performance review processes undertaken by companies.
Cases of harassment are common in workplaces. The use of mediation is an essential step in addressing incidents of harassment, especially if it involves misunderstanding or misperception of the acceptable conduct at the workplace. Mediation provides the avenue for open communications between the parties in the dispute to support clarification of the acceptable workplace behavior and conduct (Moore, 2014). The process promotes a healthier understanding and relationships between employees.
Terminations always bring conflicts within the workplace due to the difficulties in dealing with the adverse outcome. The process in most cases results in negative relationships between the employer and employees. Hence, mediation plays an essential role in supporting the decision by allowing employees a chance to share their feelings and concerns relating to the conditions surrounding the termination (Moore, 2014). The process can support peaceful settlements that lead to the satisfaction of the terminated employee and prevent possible legal cases in the future.
Communication Issues in Employment Mediation
Increasingly, employment disputes are being resolved through mediation. The process can be spearheaded by internal peer mediators or external professional mediators to help parties in a conflict to address their issues effectively. Regardless of the benefits of mediation, communication made during the mediation process plays a critical role in the success of the process (Yalabik, Popaitoon, Chowne, & Rayton, 2013). However, communication is not always straightforward because parties entering into a mediation process have one thing in common. For instance, Moore (2014) avers that parties in a dispute are rarely able to communicate effectively to settle conflicts on their own. Yalabik, Popaitoon, Chowne, and Rayton (2013) add that communication challenges are the leading reasons for employment dispute resolution discussions. Disputants agree that they are unable to communicate with each other to reach an agreeable solution to their dispute. They experience misunderstanding because they do not share the points of view on the issue that cause conflicts. Hence, communication barriers can prevent the effective settlement of disputes through mediation.
Confidentiality is a significant issue that emanates in communication during employment mediation process and can affect the outcome. Protection of information divulged during the mediation process is an integral part of the process. The knowledge that the information given is protected allows parties in the dispute to open up and freely exchange views during the dispute resolution process. In addition, Yalabik, Popaitoon, Chowne, and Rayton (2013) suggest that open communication is critical in the dispute settlement process because the mediator can understand the differing points of view and work with the parties in the dispute to come to a compromise. Open communication also allows the mediating parties to understand the causes of the conflict to address the problem. However, confidentiality issues can affect the outcome of the mediation, especially when employees are afraid that the information they give will affect their work. The fear of the information being used in the future against the employees may prompt them to withhold critical information that could alter the course of the mediation process.
It is critical to understand the legal basis of confidentiality in mediation. By definition, mediation is not confidential. Kovach (2014) argues that there is no legal basis or privilege existing between the mediator and parties in the dispute. The situation differs from the relationship between an attorney and a client or between a patient and a doctor. Hence, although the privacy of information is considered a perfect condition for the success of the mediation process, it is not an absolute requirement. Written agreements are the only way to ensure confidentiality of communications during a mediation process. The agreement can either be given by the external professional mediator or internally through the mediation policy or program that exists within the organization (Trakman, 2014). The agreement defines the scope and limitation of confidentiality that parties agree to before commencing the mediation process. However, the signed arrangement does not guarantee confidentiality in all circumstances involving employees.
Confidentiality is a serious issue in employment negotiations as it can hinder the free flow of information that supports the success of mediation processes. Mediation agreements are based on the assumption that all information or communications divulged during the mediation process will be confidential, which is not necessarily the case. Even in instances where the legal basis for confidentiality is evident, limitations still exist. However, in some cases, mediators fail to indicate the deficiencies in the mediation agreement and process. For example, the mediator cannot guarantee confidentiality in cases involving sexual or physical abuse in the workplace. According to Kovach (2014), such cases exclude protection of confidentiality to allow the adversarial process. The mediator has an obligation to the victim of the abuse to report and even testify in such incidents. Such situations raise communication issues because the accused person might fail to provide sufficient information during the mediation process for fear of legal repercussions.
Disclosure of information plays a significant role in ensuring that the parties in the dispute provide sufficient information to address the dispute. Potential disclosure of information in courts is one of the reasons some parties in the conflict might withhold important details. In disputes that lead to court proceedings, the mediator might be subpoenaed to give testimony in the legal procedure (Trakman, 2014). If the law fails to protect the mediation process’ confidentiality, settlement discussions can be provided through the evidentiary rules (Kovach, 2014). The same procedures are useful in offering settlement in the dispute resolution process. The court considers the benefit of accessing pertinent evidence to make a judgment against the importance of promoting settlement. The court does not guarantee that the negotiation agreement will be honored in such situations. As a result, the possibility of the negotiator using the same information as evidence in the court of law might hinder effective disclosure by some parties in the mediation.
Another issue relating to communication in mediation is the observance of the neutrality principle. Individuals in a dispute disagree and have different perspectives on a similar concern. According to Bailey (2014), as a matter of the first principle, people disagree because they have a different way of seeing things and have priorities and tastes that differ. While differences are expected, they become a problem during arbitration when people are unable to objectively reason and come to a compromise on the course of action. The most important individual in the negotiation process is the mediator who is expected to remain neutral throughout the mediation process. The conciliator is expected to create an environment of effective and controlled dialogue where parties in the dispute are free to give their opinions and emotions without feeling judged. However, the communicative objective of mediation becomes unachievable when perceptions of biasness are evident. Furthermore, such a negative environment affects the relationships among the parties in the dispute instead of resolving the problem.
Mediators suffer the risk of unintentional prejudice and stereotype that might hinder their neutrality in the mediation process. According to Kovach (2014), individuals tend to have preconceived notions about other people or issues that might affect the way they approach and interact in communications. Consequently, these states of mind tamper with a clear and objective assessment of a dispute and might affect the communicative outcomes. Hence, Bailey (2014) advices that negotiators should become aware of the possibility of such preconceptions to ensure that they do not interfere with their objective assessment of the situation and a fair settlement of the dispute. Prejudice and biases prevent an individual from actively listening to parties in dispute. In addition, it hinders the potential of gathering adequate information about the issue to provide a balanced course of action. Neutrality relates to the ability of the negotiator to listen and make a judgment using the facts presented in the case on personal perception of a situation.
Communication effectiveness is sometimes affected by the level of truthfulness in the mediation process. Some of the ethical issues surrounding mediation include the suitable degree of truthfulness for dialogues that take place during the process and the appropriate division of power between the mediator and parties in the dispute before and in the course of the mediation process. The level of truthfulness affects the communicative outcomes and settlement in mediation processes to settle employment disputes (Menkel-Meadow & Porter-Love, 2014). For example, if the mediator is perceived as being deceptive, other parties in the dispute might fail to be truthful, hence affecting the outcome of the entire process. Similarly, the disputants are expected to be honest in their communications, while information given enables the successful dispute resolution through mediation. However, it is not always possible to know with certainty whether a person is honest in a discussion. Consequently, parties in dispute may base some settlements on an assumption of truth.
Recommended Strategies to Address Communication Issues
Organizations should implement mediation programs or policies to guide dispute resolution. Such initiatives should cover relevant aspects of mediation, including the legal and ethical basis of effective processes. The policy should guide dispute resolution by internal and external mediators based on the legal requirements (Menkel-Meadow & Porter-Love, 2014). However, even organizations that use external professional mediators should consider the legal implications of the process, including the protection of confidentiality. Besides implementation, mediation programs or policies should be monitored closely for efficiency and effectiveness. Kovach (2014) adds that rules related to confidentiality should provide responsible, statistical monitoring and evaluation of the programs to make them effective in resolving employment disputes. The policy can address communication issues associated with confidentiality and other communication barriers since they emanate from misunderstanding and lack of effective interpretation of the law and procedures regarding employment dispute resolution. The policy or program should be the guiding principle for the effectiveness of the mediation process.
Organizations should understand the legal basis of mediation, including the federal and state laws regulating the practice. For example, in California, significant amendments to the evidence code have been made recently aimed at protecting the sanctity of communications taking place in mediation processes. According to the state law, mediators and other participants in the mediation process are not legally competent to testify in civil proceedings. Hence, they are limited to the report on whether they reached an agreement in the mediation process. However, Kovach (2014) notes that the limitation is only limited to civil cases without actual remedy for a violation of confidentiality in matters that remain in-house. The only legal sanction available for such violations is the ordinary breach of contract or tort. The information is critical for mediators to be protected against liability and to ensure that parties to the negotiation communicate freely, hence understanding the legal ramifications of their information.
The law supports the protection of personal information in alternative dispute resolution. The Uniform Mediation Act is another legal foundation relating to the protection of communications arising during the mediation process. The law was approved by the National Conference of Commissioners on Uniform State Laws to guide states in legal matters relating to confidentiality in mediation (Menkel-Meadow & Porter-Love, 2014). The law maintains that mediation communications should remain confidential according to the agreement between the parties in the mediation and as required by other state rules or laws. Furthermore, the Administrative Dispute Resolution Act of 1996 covers employees at the federal level. Besides promoting the use of Alternative Dispute Resolution, the law has important provisions relating to the protection of confidentiality. According to Menkel-Meadow and Porter-Love (2014), the law indicates the extent to which mediators and other parties in the mediation process should avoid disclosing communications. Hence, organizations that understand these laws promote the use of mediation and support open discussions among parties in the arbitration to find an effective settlement.
In mediation, the beginning step for the mediator is to understand the different points of views of involved parties. The third party in the process is referred to as the “neutral third party” due to the requirement of neutrality expected from this critical factor in the mediation process. The mediator should create an environment to allow the potential of understanding the different perspectives (Menkel-Meadow & Porter-Love, 2014). Mediators should be effective in communication by developing listening and mutual respect skills. It is critical for organizations to use professional mediators with an adequate understanding of the value of the process as a neutral voluntary, informal, and non-judgmental (Kovach, 2014). The mediator should understand and respect the importance of the ongoing relationships between parties in the dispute to observe objectivity in the discussion. Neutrality is critical in the course of mediation process and to reach an agreeable settlement to the conflict. Hence, considering the importance of positive relationships in the workplace, organizations should strive to observe neutrality and objectivity in all dispute resolution activities.
Mediators can have an adverse effect on the course and outcome of a mediation process. Previous studies reveal some cases where lawyers have been disciplined for failure to disclose vital details in mediation. One such case is Kentucky Bar Ass’n v. Geisler, 938 S.W.2d 578 (Ky. 1997) where the lawyer was found liable for failing to disclose client’s death to the opponent. Consequently, it is legally required that the mediator divulge all information to the disputants during the initial stages of the mediation process to set the direction for truthfulness (Kovach, 2014). Generally, ethical conduct on the part of the mediator encourages the other participants to be honest and ethical. While it is impossible to identify the ethical principle that emanates from such cases of disclosure violation, it is evident that they set the norm of ethical practice in communications during the mediation process (Menkel-Meadow & Porter-Love, 2014). Mediators should understand their moral duty to the client and follow the necessary principles throughout the negotiation process.
Conclusion
Mediation plays a critical role as an alternative dispute resolution method in employment disputes. The federal and state laws in the United States have outlined the logic of mediation as one of the available alternatives to disputes settlement through the court or other administrative agencies. Various cases such as Gilmer v. Interstate Johnson Lane Corp and the Civil Rights Act of 1991 have set a precedent for the use of mediation in settlement of employment disputes. The laws authorize organizations to form internal mediation policies or programs to allow effectiveness in addressing conflicts arising from employment relations. Hence, organizations should consider the potential communication issues associated with confidentiality, neutrality, and other ethical principles that might occur during the mediation and establish measures to address them such as the provisions of the mediation agreement. Evidently, given the importance of mediation, it is imperative that the process follows legal and ethical procedures to become successful in settling disputes and preventing any potential for further litigations.
[1] Gilmer v. Interstate Johnson Lane Corp., 111 S.Ct. 1647 (1991)
