Workplace disputes arise even in the best of organizations and can have a serious effect on the work atmosphere and relations between employers and employees. Traditional litigation for resolving these disputes in Canada is costly, time-consuming, and stressful to all the concerned parties. This has been the trend driving the increased resort to alternative dispute resolution procedures such as mediation and arbitration.
Both mediation and arbitration offer a much speedier, more flexible, and often less adversarial method of dispute resolution. This article explores the roles of mediation and arbitration under Canadian employment law, their advantages, and how these two methods can best be used to resolve work-related disputes.
Mediation
The theoretical underpinning of mediation thus involves a third-party neutral somewhat in control of an essentially voluntary process under conditions of confidentiality. The mediator has no authority to compel a decision, nor does he or she make one; rather, he or she fosters communication and negotiations between the parties in the hope that they can work out something with which all can live.
Generally speaking, with respect to Canadian employment law, most of the issues arising are mediation available. Workplace disputes vary in nature and include such common examples as wrongful dismissal, harassment, discrimination, and contract disputes.
Some of the most valuable strengths of mediation involve cooperation and relationship preservation. Because the mediator encourages open dialogue and cooperation, the process can help preserve the working relationship that is so crucial when the parties both desire to continue their professional association.
Whereas mediation is also decidedly less expensive and much quicker, with many disputes resolved in hours or days, not months or years. Importantly, the process of mediation is confidential and, for that reason, offers a way whereby sensitive issues may be discussed by one party and another without fear of public disclosure, which might be important for maintaining privacy and avoiding reputational harm.
Not every situation, however, can apply to mediation. Where there is a large inequality between the parties’ respective powers or where one of the parties is unwilling to negotiate in good faith, mediation is unlikely to produce either a reasonable or satisfactory result. In these circumstances, arbitration would be more advisable.
Arbitration
Other alternative dispute resolution methods include arbitration, whereby a neutral third party, a so-called arbitrator, listens to evidence and arguments from both sides and then renders a binding decision. Unlike in mediation, where the parties remain in the driver’s seat and determine their own fate, in arbitration, the arbitrator’s decision is to be treated as final and enforceable, not unlike a court judgment.
In this regard, arbitration in Canadian employment law is common in cases of collective bargaining agreements where, most of the time, there is a dispute between employers and the unions. It may also be applied in individual employment disputes where the parties have agreed to arbitration as an aspect of their employment contract.
The first major advantage of the arbitral process is that it presents an opportunity for a binding outcome. Since proceedings tend to be less formal and considerably faster compared to litigation, procedures are more summary in character, with limited possibilities for appeal. This has proved particularly beneficial to parties who seek speed and finality in the results.
Arbitration also offers flexibility not necessarily applicable to traditional court proceedings. The parties can choose an arbitrator who has particular experience that is applicable to the case. Agreed upon by the parties, a number of rules regarding procedures that best serve them may be issued. Besides, the proceedings in arbitration are private and this helps in protecting confidentiality of disputes.
However, the result being binding may turn out to be a disadvantage. Once the arbitrator has decided on a case, it is very hard to challenge his decision. This means that both sides should be capable and ready to acquiesce in the result voluntarily. Also, sometimes arbitration can be as costly as litigation itself because of the intricate nature of the case involved, depending on how much the arbitrator will charge.
Mediation vs. Arbitration
Basically, several factors come into play when choosing either mediation or arbitration to resolve disputes at the workplace. Normally, mediation is preferred when the two parties are willing to cooperate with each other over the solution and want to maintain their relationship in good condition. It is also best suited in cases of disputes with a complex, interpersonal nature, seeing that creative solutions that are not possible under arbitration or litigation are possible under such a process.
On the other hand, when the dispute needs to have a binding result, and appropriateness can be for arbitration, it is simply when the parties themselves cannot agree upon a question or issue. It is also a good option when the dispute contains some legal or contractual issues that need interpretation in a definitive way.
The employment lawyer can advise employees on their rights and options available, assist in preparing for mediation or arbitration, and represent them in disputes arising out of wrongful dismissal, discrimination, harassment, and other issues. They are extremely helpful in guiding complex legal matters and safeguarding an employee’s interests accordingly.
Conclusion
In particular, mediation and arbitration emerge as convenient tools in the Canadian employment law landscape, purporting to offer alternative dispute resolution methods sans having to invest invaluable time and resources in protracted litigation. It is in understanding their respective strengths and limitations that a harmonious dispute resolution approach can best be equipped to serve the interests of both employers and employees.
