Roles of CMA in resolving dispute of interest

PRELIMINARY

In labour issues, the “dispute of rights” and “dispute of interests” are common types of disputes which are mostly known by many jurisdictions across the globe.

Our labour law dispensation makes a distinction between a ‘disputes of right’ and ‘disputes of interest’. In the case of a dispute of right, the basis of an employee’s claim is vested in a legal or contractual right. Such a right can be enforced through the Labour Court or the CMA (in some instances). A dispute of interest, on the other hand, is not based on any existing right – here employees or their unions approach the employer in order to establish a new right. If the employer does not want to give employees what they want and the matter remains unresolved, then the employees may exercise their right to strike after following the appropriate procedures. They cannot have their wishes enforced through the CMA or Labour Court. A single employee would have no recourse whatsoever, because only two or more employees can strike.

The employees have a chance to take their matter or dispute to court or Commission for Mediation and Arbitration only on the matters within their contracts of job and not out of it. But when happen there is some interests that workers want to claim from the employer and when those claims they intend to claim are out of the contract, they only have one solution, to talk to employer for their concern and not to take it to court or commission for mediation and arbitration. All disputes of interests are on hands of parties, due to this, all disputes of interests are for mediation and not arbitration.

Existance or non-existance of a contract of employment is a big reason to determine which method of dispute resolution should be used in a dispute between two parties. It is easy for an employee to claim interest which has been already menthioned in a contract of employment than to claim interests which are not in a contract. This means, claiming rights is easy because a person can go to court or CMA unlike to another who claim interests not in the contract.

ROLES OF CMA IN RESOLVING DISPUTE OF INTERESTS

There is many forms of Alternative Dispute Resolution, but each form has it’s own boundaries to hear disputes according to various reasons. There are grounds which are important to follow when one is to decide to take his case to ADR as follows;

• The nature of the dispute
• Existance or non-contractul employment
• The merits of the case
• The extent to which other settlement methods have been attempted
• Whether the costs of ADR would be disproportionately high
• Whether any delay in setting up and attending the ADR would be prejudicial
• Whether the ADR has a reasonable prospect of success

Since the disputes of interests are claims out the contract, then, mediation is an only way to try this issue. And the main role of mediation is to assist parties to reach solution and not to advice or decide on their behalf.

Mediation.

Mediation is a consensual, confidential and relatively informal negotiation process in which parties to a dispute use the services of a skilled and independent mediator to assist them to define the issues in dispute, to develop and explore settlement options, to assess the implications of settlement options and to negotiate a mutually acceptable settlement of that dispute which meets their interests and needs.

 The Mediator is an independent and impartial person in whom the parties to a dispute repose trust, respect and confidence to assist them to negotiate a settlement of that dispute without giving advice, expressing opinions or making decisions for them.

Mediation is an ADR method where a neutral and impartial third party, the mediator, facilitates dialogue in a structured multi-stage process to help parties reach a conclusive and mutually satisfactory agreement. A mediator assists the parties in identifying and articulating their own interests, priorities, needs and wishes to each other. Mediation is a “peaceful” dispute resolution tool that is complementary to the existing court system and the practice of arbitration.

Arbitration and mediation both promote the same ideals, such as access to justice, a prompt hearing, fair outcomes and reduced congestion in the courts. Mediation, however, is a voluntary and non-binding process - it is a creative alternative to the court system. Mediation often is successful because it offers parties the rare opportunity to directly express their own interests and anxieties relevant to the dispute. In addition, mediation provides parties with the opportunity to develop a mutually satisfying outcome by creating solutions that are uniquely tailored to meet the needs of the particular parties. A mediator is a neutral and impartial person; mediators do not decide or judge, but instead becomes an active driver during the negotiation between the parties. A mediator uses specialized communication techniques and negotiation techniques to assist the parties in reaching optimal solutions.

Mediation is a structured process with a number of procedural stages in which the mediator assists the parties in resolving their disputes. The mediator and the parties follow a specific set of protocols that require everyone involved to be working together. This process permits the mediator and disputants to focus on the real problems and actual difficulties between the parties. Moreover, the parties are free to express their own interests and needs through an open dialogue in a less adversarial setting than a courtroom. The main aim of mediation is to assist people in dedicating more time and attention to the creation of a voluntary, functional and durable agreement. The parties themselves posses the power to control the process- they reserve the right to determine the parameters of the agreement. In mediation, the parties also reserve the right to stop anytime and refer a dispute to the court system or perhaps arbitration.

In addition to economic and legal skills, mediators are professionals who possess specialized technical training in the resolution of disputes. A mediator plays a dual role during the mediation process- as a facilitator of the parties’ positive relationship, and as an evaluator adept at examining the different aspects of the dispute. After analyzing a dispute, a mediator can help parties to articulate a final agreement and resolve their dispute. The agreement at the end of the mediation process is product of the parties’ discussions and decisions. The aim of mediation is to find a mutually satisfactory agreement that all parties believe is beneficial. Their agreement serves as a landmark and reminds parties of their historical, confrontational period, and ultimately helps them anticipate the potential for future disputes.

Arbitration.

Arbitration is an ADR (alternative dispute resolution) method where the disputing parties involved present their disagreement to one arbitrator or a panel of private, independent and qualified third party “arbitrators.” The arbitrator(s) determine the outcome of the case. While it may be less expensive and more accessible than trial, the arbitration process has well-defined disadvantages. Some of disadvantages include the risk losing, formal or semi-formal rules of procedure and evidence, as well as the potential loss of control over the decision after transfer by the parties of decision-making authority to the arbitrator. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes.