By Delight Adufutse
Appropriate Dispute Resolution (ADR) mechanisms are embedded in our day-to-day activities. The society within which we live has existed decades with numerous degrees of feuds, differences and misunderstanding.
In most cases, in our long cherished traditional and social settings, community elders, traditional leaders, religious leaders as well as family heads, devised ways and means to resolve issues to ensure peace and sanity among disputing parties.
Because such interventions are mostly not planned, and do not take place in a formal setup, they are therefore not regarded by the society as ADR. But the essence of ADR is embedded in the nature of our traditional way of settling differences.
However, most of these issues of conflict encountered in other societal and family setup currently exist in almost every organisations and it takes a skilled Human Resource practitioner to ascertain the importance of ADR mechanisms in resolving these disputes that have the tendency to affects the growth and sustainability of organisations.
Some of the regular disputes and grievances that Human Resources practitioners are confronted with include promotions, overtime payments and salary issues, performance appraisal reports, work schedule and work load, sexual harassment and discrimination, occupational health, safety and hazards, appointments and termination of employment.
One of the key legislation guiding the practice of Human Resource in Ghana is the Labour Act, 2003 (Act 651). The Act and its supporting legislative instrument, L.I.1822, provides for the resolution of employment disputes by negotiations, mediation and arbitration. Thus in terms of managing the relationship at the workplace between Labour and Management, an understanding of ADR and the acquisition of ADR skills are critical to the contemporary practice of Human Resources.
ADR generally refers to a range of consensual means by which disputes are resolved outside of the court. It entails a very broad scope of mechanisms of resolving disputes. There are three primary mechanisms of ADR, and these are Negotiation, Mediation and Arbitration. Other hybrid mechanisms exist such as Mediation-Arbitration (Med-Arb), Mini-trial, Private Judging (also known as Rent-a-Judge) and Expert Neutral Evaluation (ENE).
Negotiation is simply a process where parties who have a dispute or difference engage each other directly in a constructive process aimed at resolving their differences without any third party intervention.
Arbitration is a quasi-judicial process where parties to a dispute engage the services of a third person for a final and binding resolution of the dispute in the nature of an arbitral award. Arbitration follows an established procedure for determining the dispute in a judicial manner although parties are at liberty to choose their own arbitrator and the rules and procedures they want to apply to the matter.
Mediation however, is a process where the parties to a dispute engage the services of a third party who is an impartial person to help them resolve their dispute for which reason it is often referred to as a facilitated negotiation. Mediation usually comes after a failure of direct negotiation between the parties although sometimes parties engage in mediation without first attempting negotiation.
Mediation will be required in a situation where there is a wrong computation of overtime, work process redesign, wrongful termination and conflicting leave schedules or plan. Many grievances and disputes occur at the workplace as a result of the daily interactions among workers.
For instance, in the event where a difference exists between staff members, the HR manager can use Managerial Mediation to resolve the matter and ensure continuing cooperation for smooth business operations. Managerial mediation in simple terms is the process where a supervisor intervenes to resolve a business problem or dispute among his or her subordinates.
Among the essential qualities that a mediator needs to possess is impartiality. It is prudent for the mediator to remain very impartial by not showing any inclination or preference towards any of the parties and rather engage the parties using this tool to constructively facilitate the resolution of disputes. In fact, the best approach is for the mediator to dissociate himself or herself from the issue at hand. Such detachments could afford HR practitioners insight into causes of conflicts at the workplace and help design systems and processes to forestall their occurrence.
Parties in conflict are able to feel comfortable and make statements of voluntary vulnerability by admitting the negative effects of their actions when they find assurances of the impartiality of the mediator and the fact that they are not being judged for their possible role which might have contributed to the dispute.
Confidentiality is another essential quality of a mediator. Being confidential denies the mediator the avenue of disclosing any information shared during the mediation process to a person who is not part of the process.
Confidentiality is so important to the process that, some consider it to be the heart of the mediation process itself. Parties in dispute are able to open up and pour their hearts out knowing that all that they share will not be circulated to other people who are not part of the process. Confidentiality preserves the interests and dignity of the parties at the workplace and also ensures that individuals are not unfairly discriminated as a result of perceived wrongdoing.
These qualities are two of the critical qualities of a mediator and forms the key elements that serve as a guide for arriving at an amicable solution by the parties without it being imposed on them.
At the enterprise level, the Human Resource practitioners serves as the ombudsman managing the concerns, complaints, grievances and disputes between workers and management. Thus critical to HR practice, is the ability to manage and resolve disputes to ensure industrial peace and harmony for increased productivity.
Therefore, Human Resource Management practitioners must consider the acquisition of ADR skills which is critical to their functions in an era where workplace cooperation has become critical for increased productivity.