ADR – Alternative Dispute Resolution
Alternative Dispute Resolution means many things to many people. Effectively, it refers to the broad range of dispute resolution mechanisms (short of legal proceedings) that are applied to resolve disputes. ADR has been used effectively in the employment relationship for many years. It is particularly suited to the employment context, mainly due to the ongoing nature of the relationship between the parties to a dispute.
Employment disputes generally arise from Grievances, Disciplinary issues (work performance, behaviour, etc.) and Dignity at Work. Grievances that are not addressed or resolved promptly and effectively can fester, resulting in significant costs to employers. These costs are direct financial costs (e.g. legal costs, tribunal or court awards, production down-time), less obvious financial costs such as a reduction in productivity, poor morale, staff turnover, replacement costs, etc.
Early intervention that is appropriate to the situation can avoid or at least minimise conflict and cost. At Talbot Pierce Consulting we have significant expertise and an excellent track record in alternative dispute resolution (ADR). The following are the main types of ADR mechanisms.
Like mediation, conciliation is a voluntary, flexible, confidential, and interest-based process. The parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party. The key difference between this and mediation is that the Facilitator participates in a more active way in the exploration of solutions.
Mediation is an informal, but structured settlement procedure. A mediator is engaged to facilitate and assist parties in reaching an amicable dispute settlement. The main characteristics of mediation are that it provides a voluntary, non-binding, confidential and interest-based procedure. Parties are free to terminate mediation at any time after the first meeting. No decision can be imposed on the parties involved, and they may or may not agree upon a negotiated settlement. The confidentiality principle assures that any options the parties discuss will not have consequences beyond the mediation process. Interest-based procedure means that the criteria established to reach resolution does not solely adhere to the law, instead it can include considerations concerning financial, business and personal interests as well.
The role of the mediator is to assist the parties in reaching a negotiated agreement. Unlike an arbitrator, the mediator is not a decision-maker. In a facilitative mediation, the mediator merely assists the parties in their communication and negotiations. The key difference between this and conciliation is that in conciliation, the facilitator participates in the process in a more active way in attempting to reach solutions.
Difficulties often arise on issues or between people in situations which often have not yet been called a ‘dispute’ or ‘complaint’. All the parties need is a forum in which they feel ‘safe’, where they are not on their own with the other party, but do not want to be ‘represented’ or formally accompanied by anyone. This is particularly the case where the people concerned do not want the matter escalated. This type of situation can be assisted greatly with the attendance of a facilitator. The role of the facilitator is to be the independent and objective third-person in the room to provide comfort, security, be a sounding-board and to interject to keep ‘order’ if necessary.
We carry out independent investigations on any issue requiring an objective thorough enquiry to ascertain the facts. Such investigations cover a variety of matters, in particular Disciplinary, Grievance, Dignity at Work (bullying & harassment). We understand the importance of investigations being carried out in a prompt manner. Our legal training, qualifications and expertise add significant value to these processes.
At the conclusion of the investigation, we produce a comprehensive report based on which the employer can, with confidence, decide on the appropriate course of action. Our reports have been subjected to scrutiny in a variety of fora, in particular, in the context of legal and EAT disputes (unfair dismissals) and our record is impeccable.
We carry out investigations solely or on a joint basis with the client company (e.g. in conjunction with a line manager).
Decisions made in respect of people in the course of their work are usually open to appeal. Such decisions include a decision to dismiss, impose a disciplinary sanction, to make someone redundant, etc. Appeals should be heard by a person unconnected with the process so far and in a position of authority, at least as senior as the person who made the decision that is under appeal.
Talbot Pierce can support the manager throughout the process (advising on process, attendance at the meeting(s), etc.). Alternatively, where the business does not have a suitable person to hear the appeal, Talbot Pierce Consulting can hear the appeal. While having an appeal heard and determined by someone unconnected with the business is not ideal, there are no procedural difficulties with it and we ensure that we gain a good understanding of the business in advance of reaching a decision.
Please contact us to discuss what we can do for you: Info@TalbotPierce.com or (01) 902 00 31.