Conciliation of Labor Court Disputes

Conciliation of Labor Court Disputes

Arnold Zack
Asian Development Bank

Conciliation and mediation are the terms applied to the process of using a neutral to help facilitate an agreement between disputants. It differs from arbitration where the parties' selected neutral serves as an informal judge imposing a final and binding solution of the dispute. In collective bargaining in the U.S. and Canada, conciliation, or mediation is primarily used to resolve disputes of interest in reaching agreements, while arbitration is usually invoked to provide a final and binding resolution of rights disputes under those agreements. In the unorganized sector, mediation and arbitration are often incorporated into employer promulgated internal dispute resolution systems. Outside the U.S. and Canada labor disputes are resolved at the factory level through works councils, with Labor Courts offering final resolution on a wide array of workplace issues. Conciliation, as it is usually referred to outside the U.S. and Canada, is beginning to play an increasingly important role in resolving disputes which are scheduled for hearing before national labor courts. This paper provides an overview of the use of conciliation in 18 national labor court systems in Europe, Australia and Israel. All countries surveyed show an increasing reliance on conciliation either before or during the processing of labor court cases, with the conciliation being done by external conciliators, conciliators employed by the courts, or by the labor court judges themselves

Conciliation has the benefit of helping the parties reach their own solution on issues which might go far beyond the matters to be litigated, a goal that is particularly desirable in ongoing employment relationships that will survive any immediate conflict. Additionally, it benefits the labor court system by reducing the ever increasing docket of cases, permitting judges to devote their limited time to the more complex and troublesome cases, while saving money and resources for all concerned Use of conciliation may also remove cases from litigation saving the parties and the courts additionally by obviating the need for time and money consuming litigation appeals. It could be argued that encouragement of conciliation may cost the parties for the services of a conciliator and may also deprive the court of the opportunity to make new law and precedents, but as the parties have always been encouraged to resolve their disputes on their own through negotiation, that precept should be equally applicable when the parties resort to the use of a facilitator to assist them in that effort.

The paper explores the experience with mandatory rather than voluntary conciliation, conciliation conducted prior to or during litigation, the role of the judge in conciliation, the qualifications and training of conciliators, and relative benefits of facilitative, transformational or evaluative approaches by conciliators. The conclusion of the labor court judges who provided the reports is uniformly positive in that conciliation has helped the parties reach better resolution of their problems, has helped the labor courts in their administration of labor laws and has helped demonstrate to society the benefits of the process with its potential expansion to other areas of conflict.