There is a range of types of ‘alternative dispute resolution’ but they all have in common the voluntary decision of the parties to try to find a solution outside the formal adversarial procedures of the institution or courts and tribunals.
Alternative dispute resolution options
One of the most important distinctions for the parties to a dispute to recognise is between ‘mediation’ and ‘arbitration’. Both can achieve finality, but in different ways.
‘Arbitration’ is a form of adjudication where the parties agree to submit their dispute to the decision of an abitrator. This is different from a formal hearing with a Chairman or a judge where the parties cannot choose who will adjudicate, or agree in advance the points on which there will be adjudication. In arbitration the parties agree on the choice of arbitrator and the points of dispute on which he will arbitrate. An advantage of arbitration is that the parties agree in advance that the result will be binding.
In mediation the parties voluntarily agree to try to resolve the dispute between them with the aid of a mediator whom they jointly appoint and who acts as an independent facilitator and not a judge. The parties remain in control and either party can call a halt at any time, as can the mediator if he or she can see that mediation is not going to work. Students and employees are often afraid to agree to mediation if they do not understand that they will remain in control and will not be judged.
A successful mediation can lead to an agreement which the parties can then make binding by signing a settlement agreement, which is a form of contract.
‘Heads of agreement’ reached can be signed on the day. The full settlement agreement should usually be drawn up after the mediation, to give everyone time to take advice about the exact wording.
The institution should usually pay for a reasonable amount of legal advice for a student or employee at that stage to ensure ‘equality of arms’. In the case of a Compromise Agreement which ends someone’s employment it is a legal requirement that the employer should cover the reasonable costs of such advice.
By choosing to turn the ‘mediation’ into an ‘arbitration’, the parties can allow an appropriately qualified mediator to formalize their agreement as a decision or judgement. It they choose to do that they agree in advance to accept the decision of the arbitrator. So this is still an adversarial process in which each side may win or lose.
And don’t forget that the adversarial approach:
- Costs money
- Takes up administrative time
- Can lead to appeals, and resort to external bodies, which defers the point where finality is reached.
- Someone has to ‘lose’ (usually all parties in one way or another)
- Damage is usually done to relations within the institution during the process
- At best there is a narrow range of possible outcomes
- Long-term damage is done for example to future fund-raising
- Many people beyond the main parties will learn about it, which can be bad for morale