Employment Mediation and Dispute Resolution

Disputes and disagreements occur in every workplace. Conflict can arise between colleagues, between managers and employees, and between employers and members of their workforce. Most workplace disagreements are resolved informally, or the parties choose to move on for the sake of their working relationship. However, in cases where the parties cannot resolve the matter themselves or the issue is serious, it is advisable to use a more formal approach to dispute resolution.

Mediation and dispute resolution in the workplace

Conflict in the workplace can arise for a variety of reasons, including personality clashes, competition for promotion and bonuses, unfair distribution of work or workplace benefits, badly defined staff hierarchy and responsibilities, and poor leadership and communication. However, some workplace disputes are the result of serious conflict or abuse, including bullying or other unlawful behaviour, such as sexual harassment.

Dispute resolution is the process of attempting to bring closure to a conflict. The several different kinds of dispute resolution that can be used in a workplace are:

• negotiation where the parties attemptto reach a resolution between themselves
• mediation where an independent party tries to help the parties reach a mediated outcome and
• arbitration where an independent arbitrator or court decides how to resolve a dispute and makes a binding order to that effect.

Effective alternative dispute resolution in the workplace can deliver:

• improved relationship between employers and employees and work force retention
• improved job satisfaction and reduced worker stress
• increased employee productivity and
• reduced costs, as most disputes are resolved internally

Mediation and dispute resolution policy

It is best practice for an employer to have a written policy that specifies how it will approach dispute resolution in relation to all kinds of workplace disputes. The dispute resolution policy should specify the method of dispute resolution, how disputing parties should use mediation (and other alternative dispute techniques), and whether participation is voluntary. Importantly, this policy should stress confidentiality, and the need for consistency across the organisation to afford equality and procedural fairness. The most effective dispute resolution policies are simply written and convey to employees the overarching message that their grievances will be taken seriously.

Suitability for internal resolution

The way that an employer should approach a workplace dispute depends on the nature of the conflict and who is involved in the grievance. The first step for an employer is usually to gather evidence from all of the parties to better understand the cause of the conflict. Obviously, a different approach is called for in cases of personality clash compared to serious criminal conduct. If there is an allegation of criminal conduct, the employer should generally discontinue any attempt to resolve the dispute, and refer the matter to the relevant authorities.

If it is established that a dispute is suitable for internal resolution, the employer still needs to choose a suitable form of alternative dispute resolution. For instance, mediation is most successful when the parties can negotiate freely, without fear of reprisal. Mediation may helpfully address tension between two workers at a similar level of seniority, with a trained professional guiding the parties to identify and address the issues at stake in the dispute. In contrast, mediation is an less beneficial choice for a bullying complaint from a junior employee against a senior manager, as there is an inherent power imbalance between the parties.

Whatever dispute resolution technique the employer selects, they should:

• Treat the issue confidentially, and assure the employee that making a complaint will not lead to any adverse action.
• Listen carefully and clarify the facts of the dispute to ensure that all grievances are out in the open. It is possible that the dispute is over a simple misunderstanding or a easily resolved matter.
• Establish expectations at the outset about how the dispute can be resolved, and the fact that it may be escalated if necessary.
• Provide an avenue for escalation with a third party such as a mediator or arbitrator.
• Provide consistency so that employees assume the business will treat all disputes with the same objectivity and expectations.
• Promptly resolve disputes to avoid ongoing conflict in the workplace and reduce distraction.
• Provide transparency so that employees understand the process and the potential outcomes.

Legal framework for formal disputes

Most employees in Australia have access to dispute resolution through their employment contract, modern award or enterprise agreement. This entitlement is typically used to settle issues relating to the industrial instrument or more broadly related to the National Employment Standards. While the wording of dispute resolution clauses vary across industries and agreements, they usually have similar approaches, such as:

1. Workplace Negotiation: where the employee and manager try to resolve their dispute through discussion. Should this prove unsuccessful, then there may be several escalations to more senior levels of management to try and resolve the matter. 
2. Resolution through External Mediation or Arbitration: an employee, their representative or the employer can refer the dispute to the Fair Work Commission (FWC) for conciliation, mediation, or (with the agreement of both parties) arbitration. At that stage, the FWC can use any sort of dispute resolution allowable under the Fair Work Act 2009 to settle the dispute.

Go To Court Lawyers can answer any questions you have about employment mediation and dispute resolution. You can contact our experienced solicitors on 1300 636 846.