Designing an Internal ADR Program
Richard A. Posthuma, J.D., Ph.D., GPHR, SPHR
2010
Key ADR Topics
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Informal conflict resolution
Peer review
Grievance/complaint procedures
Ombudsman
Mediation
Arbitration
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Popularity of ADR
• There are more than 20,000 ADR professionals in the
U.S.
• The Federal Mediation and Conciliation Service now
employs nearly 200 full-time mediators.
• The U.S. Postal Service conducts more than 10,000
mediations a year through its REDRESS program.
• The Equal Employment Opportunity Commission
employs more than 100 full-time mediators to assist with
employment discrimination cases.
• According to a 1998 survey by PricewaterhouseCoopers
and Cornell University, 88 percent of American
corporations had used mediation and 79 percent used
arbitration in the previous three years. In addition, more
than 84 percent said that they were likely or very likely to
use mediation in the future, while 69 percent said the
same about arbitration.
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Key ADR Topics
Open-door policies may refer to:
• Informal conflict resolution.
• The entire in-house ADR program.
• A grievance procedure in a non-union
workplace.
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Informal Conflict Resolution
• The most common method.
• No formal system, paper, procedure, etc.
• Often the most effective: Avoids escalation of
conflict.
• Utilizes employee relations skills of
supervisors and HR staff.
• Often used with more formal methods.
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Peer Review
• A process whereby workers at the same or
similar level listen to employee complaints and
give their recommendations, either binding or
not.
• Not the same as 360 degree feedback which is
a performance evaluation by your peers.
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Peer Review
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The process is somewhat formal:
> Specific issue/complaint.
> Meeting with peers.
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Anticipated benefits:
> Peers more objective.
> Results more acceptable.
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Grievance/Complaint Procedures
• Union or non-union.
• Government agencies in-house procedures.
• Relatively formal; forms, meetings, requests or
demands, answers, etc.
• Non-union, private sector:
> May be binding or not.
> Pre-dispute or post-dispute.
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Ombudsman
Historically:
• In 1800’s, a Swedish public official who
investigated government agency infringement
of rights of individuals.
Nowadays:
• An in-house staff person
> Usually outside the normal chain of
command
> Attempts to resolve employee complaints –
usually informally, or by using an
organization’s resources.
Practice Point:
• Sometimes this person is really a mediator or
arbitrator.
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Mediation
• Third party
> Mediator
• Informal
• Mediator tactics push employer and
employee(s) to voluntarily agree.
• May be a necessary step before arbitration.
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Mediation
Effective mediation tactics:
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Pressure
Process
Friendliness
Avoid negative emotions
Discuss alternatives
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Arbitration
• Third party
> Arbitrator
• Semi-formal, trial-like hearing.
• Arbitrator’s decision is binding on the
employer and employee(s).
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Types of Arbitration
• Grievance arbitration:
> Under a collective bargaining agreement (union).
> Used to determine if a collective bargaining
agreement has been violated.
• Employment arbitration:
> Also known as non-union grievance arbitration.
> Used to resolve complaints about discrimination and
other matters
> An employer either permits or requires employees to
file complaints to an arbitrator where there is no
union.
> Employers see this as a way to avoid litigation.
• Interest arbitration:
> Used to determine the terms of a new contract.
> Used by public-sector employees (police and fire),
athletes, etc.
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Employment Arbitration
• Arbitration arises out of an agreement between
employer and employee.
• Issues:
> Valid waiver of right to sue.
> Protection of statutory rights.
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Employment Arbitration
Validity of Waiver:
• Statutory authority (FAA, Title VII, etc.); Circuit
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City v. Adams
Pre-dispute
Voluntary
Knowing
“May” arbitrate versus “must” arbitrate
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Employment Arbitration
Protection of statutory rights:
• Arbitrators must be neutral and fair.
> Hooters used arbitrators selected by the
employer.
• Arbitrators must comply with applicable statutes.
> But what standard? (Are they making law or
applying law?)
• Arbitration agreement must provide fair
procedures.
• Arbitration agreement must provide fair
substantive remedies.
• Protection of public interest in a private setting?
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Employment Arbitration
• Employers may be able to avoid costly litigation
with enforceable arbitration agreements.
• Enforcement of arbitration agreements is a
tricky legal issue.
> Consult your attorney for this and all ADR
policy language.
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Best ADR Policies
High
UserFriendliness
Low
Low
High
Legal Enforceability
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Summary
• There are many types of in-house ADR
programs.
• An effective policy may reduce litigation costs.
• Policies should be fair and legal.
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