Alternate Dispute Resolution (ADR) Mechanisms
There are various processes which may be used as alternative mechanisms for the informal resolution of workplace issues, including bullying claims. It is at the discretion of the grievance receiver (such as the nominated supervisor or next most senior manager) to determine the most appropriate process, based on the circumstances in each instance, to help resolve the issue locally.
However, all such alternative dispute resolution (ADR) processes are voluntary and are subject to agreement to participate by the parties concerned.
ADR processes may involve an independent third party intervention and may be:
- Facilitative, i.e. where the third party intervention focuses on the process of achieving a resolution via agreement, rather than the issues in the grievance; or
- Advisory, i.e. where the third party may also provide advice in relation to the issues of the grievance and suggest possible outcomes.
Mediation and facilitated discussions are facilitative processes, whereas conciliation may include facilitative and advisory aspects.
Mediation is a facilitative means of resolving a grievance whereby a neutral person, the mediator, helps the parties to reach a resolution during a confidential, face-to-face meeting(s). The mediator helps the parties clarify the disputed issues and identify possible options/ suggest possible compromises. A mediator does not impose a decision, or provide legal advice to the parties.
However, the critical factor with mediation is that it is a voluntary process and both parties must be prepared to enter into mediation and agree to participate, with a view to reaching a resolution.
Therefore mediation is useful only when the parties are prepared to participate in good faith, listen, compromise and work towards a mutually satisfactory outcome. The outcome of a successful mediation process may be a written agreement, which would be signed by the concerned parties.
A Facilitated Discussion is a process to help parties have their say and reach their own decision. In this process, a facilitator guides the parties through a discussion, while keeping in mind the outcome that the parties wish to achieve. A facilitator may be either internal (e.g. the nominated supervisor if appropriate, or a HR staff member) or an external person with appropriate expertise.
A Facilitated Discussion is conducted in accordance with the principles of mediation, but delivered in a more informal and flexible manner. Facilitated Discussions may be suitable, when the parties to a grievance are not willing to engage in the mediation process.
The facilitator will also keep the conversation on track in order to aid a productive and participative discussion and listen for common ground.
A Facilitated Discussion may result in the identification of the issues of the grievance, development of options and consideration of alternatives with a focus on reaching an agreement. The agreed outcome need not be formalised with a written agreement.
Conciliation is a voluntary process to help the parties informally resolve a workplace grievance or issue, and reach a resolution. Similar to mediation, an independent person (i.e. the conciliator) helps the parties to work through their issues and arrive at a solution. Conciliators will lead the discussion, provide guidance and advice to the parties and explore the issues involved.
Conciliators are normally more active in exploring issues and possible solutions and will help you and the other party consider the strengths and weaknesses of your arguments, and encourage a resolution but they will not decide the issue for you. The outcome in the matter will depend on what the parties are willing and able to achieve.
If an agreed settlement has been reached, a written agreement will be prepared, which will need to be signed by both parties to the grievance.
A behavioural agreement is an agreement or a memorandum of understanding between the parties which specifies clear expectations of behaviour, which will normally be in line with the ACU Code of Conduct. The agreement may also set out the specific conduct or behaviour that a staff member will need to display and also, specific disrespectful or negative behaviour(s) they will need to avoid in future.
A behavioural agreement may be a consequence of a successful mediation, conciliation or facilitated discussion process. In certain instances, a grievance receiver may recommend a behavioural agreement to the parties, as a possible resolution of low level negative behaviours and/or to avoid escalation of a grievance in its early stages.
Once a behavioural agreement is finalised and signed, copies are placed on each staff member’s employment file. A staff member who breaches the agreement may be subject to disciplinary action by the University.