Impasse and Alternative Dispute Resolutions (ADR) Discuss two of the following s

Question

Impasse and Alternative Dispute Resolutions (ADR)

Discuss two of the following statements

Define what is meant by the term, Alternative Dispute Resolution (ADR) and discuss the differences, advantages and disadvantages between arbitration and mediation.

Discuss the following statutes that govern the arbitration of disputes: Taft-Hartley Act 1947; Railway Labor Act (RLA) 1926; and the Federal Arbitration Act (FAA) 1925.

Outline the procedures in arbitration and mediations. Also describe the roles of the arbitrator and the mediator in the negotiation and bargaining process.

Describe the roles and functions of the American Arbitration Association (AAA) and the Federal Mediation and Conciliation Service (FMCS) and the procedures involved when parties have reached an impasse and are in need of an alternative dispute resolution (ADR).

Explanation / Answer

Arbitration is means of securing an award on a conflict issue by reference to a third party. It is a process in which a dispute is submitted to an impartial outsider who makes a decision which is usually binding on both the parties. It is a process where there is a hearing and a determination of cause between parties in controversy by a person or persons chosen by them, or appointed under a statutory provision. The parties submit their disputes/issue and are bound by the award of an arbitrator in relation to the matter which is in dispute between them.

Arbitration is to be distinguished from conciliation not only by the fact that its decion is biding on the parties but also by its different approach and spirit. The main objective of arbitration is adjudicatio and hence there is no place for compromise in awards though the parties are at liberty to do so. While the conciliator has to reconvile the recommendations of the parties, sometimes against his own discretion as long as he brings about an agreement between the contending parties, the arbitrator enforces his own point of view on the contending parties and the opinions of the disputants are not given any predominance. Moreover, arbitration is more judicial in character than conciliation.

Arbitration s also to be distinguised from mediation. Arbitration is a judicial process, while mediation has a legislative tinge. The award of the arbitrator rests on equity and justice i.e. there is no score for compromise, while compromise is the very essence of mediation. The arbitrator's award is binding while that of the mediator is not. Arbitrator often leads to the termination of the dispute, but mediator may or may not bring about this termination. Arbitration is best suited for the settlement of contractual rights, whereas mediation is suited to the adjustment of disputes over interests.Advantages of Arbitration

a) Since its is established by the parties themselves, arbitration has the particular advantage of bringing the dispute settlement procedure down to the level of the parties to the dispute. Workers and management tend to have greater faith and confidence in a settlement machienry which is in effect their own.

b) Since arbitration is established by agreement, it is more flexible than other procedures and can be adjusted to the views, desires and experience of the parties and to the circumstances obtaining in the undertaking or industry.

c) This procedure, operating at the level closest to the parties to the disputes, has the advantage of enabling the arbitrators to acquire a much greater familiarty with the characteristics of the particular industry or undertaking than most courts or tribunals.

d) The procedure is relatively expeditions when compared to that in ordinary courts or labour tribunals. It cust down delays and results in a prompt settlement of differences.

e) It is informal in character because the disputes are handled by the parties themselves, often without recourse to lawers. Arbitration there is a less expensive than other procedures.

f) Awards are capable of implementation without any grudge on the part of both the parties of the dispute and do not lead to further chances of litigation.

g) Since arbitration is based on the consent of both the parties, it helps building up a sound base for healthy industrial relations, mutual understanding and cooperation.

i) It is popular because it is suitable and compelling. It is far better than a costly work stoppage, even though not wholly satisfactory from either parties point of views.

Evils of Arbitration:

1) It deprives labour of its right to go on a strike, for there is often a provision in the agreement that the trade unions and workers will refrain from a strike during the continuance of the agreements.

2) Judgement is arbitrary and ill advised as the arbitrators are not well-versed in the economic and technical aspects of industry.

3) Arbitrator are often biased against labour and their award is therefore usually not in its favour.

4) Delay often occurs in arriving at the award and settlement of disputes. This leads ot a breadkdwon in the morale of members.

5) Though arbitration is an essential element in the creation of better labour management relations, its availability may lead to less dependence on negotiation and the conditions imposed by a third party may be resented.

6) Too much arbitration is not a sign of healthy relationships. Parties which find it necessary to leave the disposition of disputes to third parties do so often becuase they have not learnt how to solve their own problems, how to live with one another. Therfore, too frequent arbitration is not only costly and time-consuming but promotes a hostile and rigid relationship between the parties.

Procedure:

After the dispute has been referred to the arbitrator, he will hear both the parties. Hearing involves mastery of the facts of a particular dispute as well as the relevant provisions of the collective agreement and of the past practices of the parties in relation to th ematters relevant to the dispute. An investigation of the facts and circumstances of the dispute is of great importance. The investigation should aim at ascertaining who and what are involved in the dispute. The investigation should aim at ascertaining who and what are involved in the dispute. The arbitrator may call witnesses, get evidence and relevant records and documents, current and the past agreements, ordinances, court decisions, statutes (bearing on the case) and arbitration decision by other arbitrators in similar cases, that may suggest a line of reasoning. When an important witness is unable to attend, sworn affidavt is often used.

Role of the arbitrator:

The arbitrator after investigating the dispute, has to submit his award to the government . The award will have the same legal force as the judgement of a labour court or tribunal. The award must be signed by the arbitrator. While writing this award, the arbitrator has to ensure that:

a) The award is in line with the terms of reference and that it does not go beyond its jurisdiction.

b) It must be precise and definite that it must be clear, unambiguous and without any, vagueness and that it is not in any way capable of being understood or misinterpreted.

c) It should be capable of being enforced or implemented. In other words, it should not contain directives or provisions which apparently seem impossible of enforcement.

d) The award should contain a date or a specific perdiof for its implementation.

e) The award should not violate any provision of any existing law or settlement legally arrived at, or one which is binding on parties.

f) The award should contain sufficient justification or reasons for the settlement arrived at by the arbitrator.

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