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Traditionally, Industrial relations in Australia has been governed by the process of arbitration. Dispute resolution and collective bargaining arrangements were all determined by the courts and/or Industrial Relations Tribunal. However, throughout the last three decades, the process of conciliation (mediation) has gained greater favour as a mechanism to maintain industrial harmony. This essay will be structured in 6 main divisions. Firstly, the introduction will provide a background to the evolution of conciliation, and definitions of both conciliation and its counterpart, arbitration. The second section of the essay will discuss the major differences between conciliation and arbitration that has resulted in the former playing a more influential role in industrial relations. The third part of the essay will discuss the various functions mediation plays within industrial relations. The fourth section of the report will discuss how collective agreements can be best interpreted through conciliation. Finally, the conclusion will weigh up the arguments and determine the role that conciliation plays in Australian industrial relations.
According to Vessenes (1996) “mediation is one of the techniques that have come to be known as Alternative Dispute Resolution (ADR), designed to avoid costly litigation. It is a voluntary process where a neutral third-party mediator helps the parties find common ground and negotiate a final settlement agreement”. On the other hand, arbitration is best described by Beach (1980) as a process where “the arbitrator (or arbitration panel) conducts a formal quasijudicial hearing at which the union and employer negotiators present testimony of witnesses, arguments, and documentary evidence in support of their respective positions. Sometime later, the arbitrator (or the panel) issues a legally binded ruling”
Meyer (1979) argues that “Mediation and arbitration have conceptually nothing in common. The one [mediation] involves helping people to decide for themselves, the other involves helping people by deciding for them”. The integrative nature of mediation, in comparison with arbitration, has provided the former with a greater exposure as a means to resolve disputes in Australian Industrial Relations.
The placement of blame on an entity regarding an industrial dispute is a significant distinction between conciliation and arbitration. Fulton (1989) advocates that “the mediator’s endeavours are not aimed at identifying which disputant is right and which is wrong. The mediator’s aim is rather to disperse any private antagonism which may exist between the parties and to gain a solution.” On the other hand, arbitrators main objective is to weigh up all the evidence put forward relating to a particular dispute and to make a distributive judgement ruling in favour of one entity over another.
It can be said that conciliation provides employees with the ability to determine their own outcomes which they must commit to. Plant (1997) advocates that “the principal reason value is created through mediation is party control. In contrast to adversarial processes, mediation reposes in the parties themselves control over the resolution of their problem. The parties themselves create a solution; it is not imposed on them by a third person, ie a judge, a jury or an arbitrator. Thus, the opportunity for finding a win-win situation is virtually unlimited”. Cohen (1999) supports the claims made by Plant by stating that “the use of mediation helps the parties gain commitment to the implementation of the resolution. Studies have indicated that parties are more likely to follow through mediated solutions rather than imposed solutions” It can be said that mediation has gained greater influence as a means to maintain industrial harmony because the parties involved can retain control over the outcome, agreeing only if they wish and on terms they consider to be in their self interest.
It is worthy to note that there is a limited amount of research that actively supports the argument that conciliation saves both time and money when compared to arbitration. In both instances assumptions need to be made in order to validate the argument. Vessenes (1996) supports the argument by stating that “mediation is generally less expensive than arbitration and litigation. Frequently, the parties handle the matter themselves without legal assistance and the quick resolution time also helps reduce expenses.” These potential savings appear attractive to businesses as the concern to maximise profits whilst in the pursuit of industrial harmony is a major prerogative for modern organisations. However, Feuille (1992) in his research has indicated that “the dollar savings identified in the various studies are highly uncertain.”
It can be safely said that arbitrators are predominantly concerned with making an assessment of what has already occurred. In addition, the expectation that anything that cannot be proved with supporting evidence cannot be said to have occurred. Subsequently it is likely that the adversarial ruling has the potential to tear worker relationships. As a result, the future of worker cohesion is placed in serious doubt. On the other hand, conciliation has a strong concern for the future. Fulton (1989) believes that “the mediator’s role is to bring about a commitment in the parties to abide by an agreement which emanates from their own negotiations, that is to say, the mediator’s interests is in creating a structure for the parties’ future relations rather than in personal histories”. In order to preserve future working relationships, conciliation would be the most attractive process as it is the least likely to jeopardise future organisational harmony.
The process of mediation has the ability to fulfil several functions in Industrial relations negotiations. Not only is mediation viewed as a means to gain a compromise in a dispute, but it is also a way to facilitate greater trust and communication. In addition, it provides a foundation for disputants to develop a problem solving attitude.
USA Today (1994) argues that “the heart of mediation- and the reason it is so efficient – – is that it is an open, direct, no-nonsense approach to getting parties together to air their grievances and state their interests”. Heated disputes in the workplace or in the industrial arena often lead to a lack of communication and a lack of subsequent trust between disputants. As a result, finding a solution without 3rd party intervention is very arduous. However, conciliation offers parties the chance to informally discuss and disclose their interests and views instead of emphasising conflicting positions. Fischer and Ury (1981) support this claim by stating that “interests motivate people; they are the silent movers behind the hubbub of positions.” Taking Fischer and Ury’s standpoint, the reconciling of interests to a mediator has the potential to motivate individuals to increase their communication. In doing so, Plant (1997) argues that “the parties will better understand eachothers interests and needs if they communicate directly”. By mediating the dispute both sides have the opportunity to raise communication levels which is a integral step in dispute resolution.
The increased levels of effective communication also provides a means to re-establish the level of trust and commitment to the working relationship. The mediator is given the opportunity through effective and open discussion, to remove rancour, personal recrimination and sources of irritation at their meetings – substituting in their place an atmosphere of friendliness and cooperation that will induce them to regain trust. Cohen (1999) believes that mediation can “improve working relationships between the disputants. By assisting them in resolving their problem, the manager can facilitate constructive handling of conflict situations that may go well beyond the current problem.” Through mediation, entities have the opportunity to re-establish trust which had been lost throughout the dispute in order to maintain close-knit working relationships now, and in the future.
Mediation also fulfils the function of emphasising and inhibiting compromise in a dispute. The mediator can exert several influential strategies that will ascertain compromise for disputants. Provis (1997) puts forward several tactics to achieve this objective. For Example, “making substantiative suggestions for compromise, press on or both of the parties to change their bargaining positions or their expectations for settlement, strongly criticising one or both of the parties for intransigent behaviour” Guyatt (1999) supports this claim by advocating that “the mediator will stress to both sides the importance of accepting the need for compromise in order that a successful agreement can be engineered. The mediator is skilled at suggesting creative solutions which meet part, although not all, of each sides aspirations and which can often result in both parties being able, at the end of the day, to continue with, or even expand upon, their pre-existing commercial relationship.” The ability to demonstrate compromise reinforces to disputants that the objective of the mediation process is to establish a “win-win” outcome.
It can be safely said that mediation offers disputants with the opportunity to resolve the dispute on their own. Without mediation, it would bevery difficult to gain a mentality that was problem solving driven. In most circumstances, the dispute would escalate and disputants would be fighting over positions and develop an “attack-defend” mentality. However, through communication and negotiation, disputants can readily adopt a Problem Solving mentality with a commitment to resolving the issues behind the conflict. Wan (1999) supports this claim by believing that “in general, mediation is therefore a cooperative ,problem-solving process, and designed to help the parties find constructive solutions to their problems rather than enforcing legal rights.” For example, a mediator can acknowledge a suggestion and emphasise that it is relevant and important.
Through active employee participation in mediation proceedings, the disputants can adopt a problem-solving strategy which attacks the issues and attempts to resolve them. Lewicki, Saunders and Minton (1998) argue that “to resolve the dispute- the major difference is that mediation seeks to achieve the objective by having the parties themselves create the agreement.” In order to assist disputants in establishing a problem-solving approach, mediators can creatine salience in the options that are brought forward throughout the proceedings. For example, the use of phrases like “yes, thats is important, why don’t we discuss it further” or “that is also relevant” can ensure that the views of all parties are taken seriously. In addition, this provides a stimulus to increase the level of communication.
Collective bargaining disputes are not a new concept in Australian Industrial relations. Industrial action such as lockouts and strikes are two forms of activities that have commonly been used because of a failure to provide an adequate agreement. Often, industrial action has resulted from legislation being handed down to employees with the terms and conditions already determined. Sisson (1986) believes that determining collective bargaining arrangements involves two aspects. “First, the rules can either be made by the parties themselves or they can be imposed by the state in the form of legislation; and second, in those cases where they are made voluntarily, the rules can be treated as ‘gentlemen’s agreements’, binding in honour only, or as legally enforceable contracts.” Mediation can be called upon to provide an alternative means to determine the terms and conditions of employment. Through mediation, employees can have the opportunity to voice suggestions and opinions regarding certain aspects of the employment relationship. Mediators can adopt a strategy of promoting an integrative result which allows both employees and management to gain. In doing so, mediation can allow disputants to resolve their collective bargaining issues in a way that promotes joint utility.
Many commentators, when dealing with the area of alternative dispute resolution, emphasise mediation. Mediation has become increasingly used as an informal tool to resolve conflicts in the workplace. One of the main objectives of this essay was to distinguish how mediation has gained a greater exposure in industrial dispute resolution. Mediation promises a direct, less adversarial approach to resolve disputes whilst preserving working relationships at minimal time and expense. Through mediation the onus is on establishing a win-win resolution rather than arbitration’s objective of choosing one argument over another. Mediation also emphases several other benefits that can be capitalised upon whilst in dispute resolution proceedings. The need for compromise and enhanced communication has the potential to span well into future issues or disputes. This will enable disputants to effectively manage conflict in the long run. Mediation also promotes and encourages the development of a problem solving mentality. Not only will this assist mediators in efficiently reaching a solution, however, it can also be useful in all other areas of work. Through mediation, the arduous task of determining collective bargaining arrangements can be executed more effectively. Through using the tactics like promoting communication and compromise, employees, management and unions can adequately determine collective arrangements without the requirement of industrial action or other forms of conflict. On the whole, mediation provides managers with an alternative form of dispute resolution that offers the opportunity to maximise joint utility. This process should be looked upon as the primary way to resolve disputes now, and in the future.
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