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Relations 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 quasi judicial 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 bonded ruling Differences Between Conciliation and Arbitration 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.
Placement Of Blame The placement of blame on an entity regarding an industrial dispute is a significant distinction between conciliation and arbitration. Fulton (1989) advocates that the mediators endeavours are not aimed at identifying which disputant is right and which is wrong. The mediators 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. Greater Control 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. Financial Costs 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. Future Concerns 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 mediators 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 mediators 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. Functions Of Mediation In Industrial Relations Negotiations 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. Fostering Greater Communication 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 3 rd 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 Urys 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 eachother's 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 rancor, 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...
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Research essay sample on The Role Of Conciliation In Industrial
