Recommendations
on employment
problems in Tunisia

2.4 Mediation-arbitration

Guideline for employment problems / RESOLVING: 2.4 Mediation-arbitration

Most plausible interventions

During the orientation process of the available literature, we identified the following interventions as most plausible for Precarious working conditions in manufacture industries disputes:

‘Med-arb’ is the short-hand description of a hybrid procedure of mediation and arbitration, where the same neutral ‘switches hats’. This occurs when the mediator is asked to serve as arbitrator by the parties, or the arbitrator is asked to mediate the dispute before ^[1].

Even though mediation and arbitration are distinct alternative disputes resolution (ADR) processes, often aimed at achieving very different results, med-arb practitioners see it as an opportunity to offer a process that combines the best of both mediation and arbitration by guaranteeing a final resolution (‘finality’) but incorporates informal opportunities for settlement (‘flexibility’). The ‘finality’ of arbitration is utilised as the stick to promote good behaviour in mediation, while the ‘flexibility’ of informal mediated discussions promotes efficiency and cost-savings over the use of arbitration ^[2].

Med-arb is a flexible process, and, depending on the circumstances, there can be fairly dramatic differences in how it operates. For example, in an interest med-arb, that is, a dispute based on collective agreement negotiations, the med-arbiter may move back and forth between mediation and arbitration. In a rights med-arb, a dispute based on collective agreement administration, the med-arbiter typically progresses distinctly from mediation to arbitration ^[3].

Med-arb can work in several ways:

The parties agree, in advance of the mediation, that if some or all of the issues. cannot be resolved at mediation, the mediator will act as arbitrator.
The parties request, during the mediation, that the mediator act as arbitrator for some or all of the issues that are not resolved.
The arbitrator suggests, before or during an arbitration, that he first try to mediate the dispute ^[4].

Arbitration is the most formal of the three main types of ADR, it is essentially a form of private court hearing. It may be either ad hoc, in which case the parties agree on the arbitration procedure that they will follow, or institutional, in which case the arbitration will take place according to the rules of an arbitral institution appointed by the parties. The parties to a dispute agree to the appointment of an arbitrator who then plays the role that the judge would play in conventional court proceedings. Having agreed in advance to be bound by the decision of the arbitrator, the parties must then abide by the outcome of the arbitration. The process is quasi-judicial, with evidence prepared and presented to the arbitrator during a formal arbitration hearing in a similar manner to that which would apply to court proceedings ^[5].

The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest ^[6].

The med-arb process is a promising intervention in resolving employment disputes. Moreover, its innovative process makes a lot of scholars praise it. This is why it is interesting to compare med-arb with arbitration as one of the oldest and traditional dispute resolution processes.

PICO question

For parties to a precarious working condition in manufacturing industries dispute, is med-arb process or arbitration more effective for well-being?

Search strategy

The databases used are: Hein Online, Westlaw, JSTOR and ResearchGate.

For this PICO question, keywords used in the search strategy are: med-arb, employment disputes resolution, Arbitration, Hybrid process.

Assessment and grading of evidence

The main sources of evidence used for this particular subject are:

Megan Elizabeth Telford, Med-Arb: A Viable Dispute Resolution Alternative, Industrial Relations Centre, Queen’s University, 2000.
Brian A. Pappas, “Med-Arb and the Legalization of Alternative Dispute Resolution,” Harvard Negotiation Law Review, vol. 20, p. 157, 2015.
Clyde Croft, Alternative Dispute Resolution in Arbitration: Is Arb-Med Really an Option?, Supreme Court of Victoria, paper prepared for the International Arbitration Conference, 2014.
Alan L. Limbury, Med-Arb, Arb-Med, Neg-Arb and ODR, paper presented to the NSW Chapter of The Institute of Arbitrators and Mediators Australia, Sydney, 2005.
David C. Elliot, “Med-Arb: Fraught with Danger or Ripe with Opportunity,” Alberta Law Review Society, 1995.
Amy Lieberman, “Med-Arb: Is There Such a Thing?” Attorney at Law Magazine, 2012.
David C. Singer, “Symposium Pre-Dispute Agreements to Arbitrate Employment Claims,” Labor and Employment, 2019.
Richard Miskella, Briefing on Alternative Dispute Resolution in the Workplace, Global HR Lawyers.
Peter Frost, Arbitration of Employment Disputes, Blackstone Chambers, 2014.
Stuart H. Bompey, Michael Delikat, and Lisa K. McClelland, “The Attack on Arbitration and Mediation of Employment Disputes,” The Labor Lawyer, vol. 13, no. 1, Summer 1997, pp. 21-86.
Arbitration and Employment Disputes, ELA Report, Employment Lawyers Association, 2017.
Katherine V.W. and Alexander J.S. Colvin, The Arbitration Epidemic: Mandatory Arbitration Deprives Workers and Consumers of Their Rights.
Alexander J.S. Colvin, “Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?” The Pennsylvania State University.

Megan Elizabeth Telford in her empirical study used the results of her detailed interviews with experienced med-arbiters at the Grievance Settlement Board (GSB) to throw new light on the continuing debate about med-arb. She pointed out the critics’ question on the compatibility of mediation and arbitration in one hand and the possible abuse of the process and how it could be risky sometimes if it’s not used correctly.

Brian A. Pappas demonstrated in his article that despite efforts to provide flexibility and choice to prospective arbitrators, the key principles of both mediation and arbitration are compromised by med-arb. He argues that the inherent weaknesses in each process that Med-Arb seeks to counteract are actually due to the negative effects of legalisation on each process model. The ‘solution’ offered by med-arb is built on a false premise that further legalisation can correct legalisation. He describes the ways in which med-arb is detrimental to the fundamental tenets of both mediation and arbitration and how, despite efforts to the contrary, med-arb will only further legalise both processes.

Clyde Croft through his working paper prepared for the international arbitration conference in Sydney tried to defend the adoption of arbitration process amidst the concerns which are raised by the hybrid processes, he empathises that arbitrators and arbitral institutions must ensure that arbitration processes continue to develop along a similar line, to ensure that arbitration remains an attractive choice within which parties are able to resolve their disputes and to use the Med-Arb process as an option that is suggested as a means to promote the efficiency of arbitration aimed at facilitating early settlement.

Amy Lieberman tried briefly to highlight the advantages and disadvantages of the med-arb process and to give some best practices of the med-arb and how it could be helpful in resolving employment disputes.

Alexander J.S. Colvin examines in his empirical research on employment arbitration, focusing on a series of critical issues. First, the consequences of adopting employment arbitration and the factors that influence the decision by employers to adopt these procedures. Second, the outcomes of employment arbitration cases. Lastly, the relationship between employment arbitration and other aspects of organisational dispute resolution systems such as internal grievance procedures.

Katherine V.W. Stone and Alexander J.S. Colvin in their article, following the supreme court shift in the civil justice system where it enabled large corporations to force customers and employees into arbitration to adjudicate all types of alleged violations. These trends are undermining decades of progress in consumer and labour rights. They highlighted that consumers and employees are less likely to win their cases when they are heard in arbitration, and when they do win, the amounts of damage awards are far less than would be forthcoming in a court. Also, arbitration can be too expensive and the results too risky for individual consumers or workers to undertake. To reverse these trends, they suggest arbitration as a due-process protection and unbiased decision-making.

The Employment Lawyers’ Association (ELA) has published a report on arbitration and employment disputes where a great deal of research and discussion has been undertaken by members of the group into different issues that arise in relation to the arbitration of employment disputes. they provided an overview of arbitration, describing what it is, the difference between institutional and ad hoc arbitration, various forms of arbitration agreement, they also highlighted the advantages and disadvantages of arbitration and described the experience of arbitration of employment disputes in the UK and elsewhere and consider the Advisory, Conciliation and Arbitration Service (acas) and ELA arbitration schemes and make a number of proposals for ELA to have a role in relation to employment arbitration.

Quality of evidence and research gap

According to our research method, we grade the evidence comparing the med-arb process and arbitration as moderate.

The sources used to compare are medium-sized or large empirical studies. Available studies and expert opinion are of a high quality, but do not pertain to precarious work conditions disputes in particular and significant gaps in empirical research remain.

Recommendation

Desirable outcomes

Med-arb process	Arbitration
Using the same neutral [party] saves time and cost by eliminating the need for parties to identify, appoint, and educate an additional neutral ^[7] where the neutral has the skills necessary to conduct both processes, there is a saving in both time and money in combining them, since the neutral is already ‘up to speed’ when changing from one role to another and may gain insights during the mediation phase that could contribute to a more appropriate award [8] . Taking for example the past circumstances that have presented a number of creative ways to reach integrative agreements. One is the possibility of recovering working hours lost during the toughest phase of the pandemic in exchange for keeping jobs in the organisation. Another is investment in online training during periods of the pandemic when economic activity was low. In these cases, the parties refocused the negotiation from the single issue of how many hours could be recovered by identifying the multiple issues regarding training or teleworking during the pandemic that turned out to be the real issues in these negotiations, issues with integrative potential as they are able to create added value and maximise joint gains ^[10].	Arbitration provides confidentiality, whereas tribunal and court hearings are normally in public, and court pleadings are generally accessible to the public, arbitration proceedings and the details of any award made are generally confidential to the parties unless they agree otherwise. Instinctively, one would assume that confidentiality would favour an employer who might not want to ‘wash its dirty linen in public’, but employees can also benefit from confidentiality, particularly those that may have concerns on the effect of a messy public dispute on their future career ^[18].
Flexibility is promoted as a med-arb benefit, med-arb advocates promote the use of a hybrid process as a means of infusing arbitration with many of the informal benefits of mediation ^[9]. The med-arb solution provides arbitration with flexibility by adding mediation and mediation gains finality by adding arbitration and placing the decision-maker in the room to provide the ‘stick’ that promotes settlement. As a result, both processes gain efficiency by utilising each other’s natural advantages ^[10].	Flexibility [in multiple jurisdictions], an employee with claims in a number of jurisdictions and an employer potentially having to deal with multiple claims could well find it attractive to have those claims resolved in one fell swoop by arbitration ^[19].
The flexibility of med-arb is further illustrated by the various models of med-arb in use today: non-binding med-arb, where both the mediation and arbitration stages are non-binding on the parties. med-arb ‘show cause,’ where, if the dispute is arbitrated, the third-party neutral renders only a tentative decision that is presented to the parties for their consideration. ‘medaloa’, mediation and last offer arbitration, where if mediation is unsuccessful, the parties engage in final-offer arbitration in which the arbitrator must choose the final position of one of the respective parties. post-arbitration mediation, where mediation is performed by the arbitrator after the arbitration session but before the final binding decision is made known ^[11]	The parties have a considerable degree of autonomy and influence on the arbitral process. This includes the appointment of the arbitrator, who can be selected for their expertise and suitability for the issues in dispute. It also extends to the procedural rules that can be agreed between the parties subject to mandatory provisions of the applicable law (such as the arbitration act 1996). The timetable can also be agreed between the parties. This can mean obtaining a prompt decision from the arbitrator on interlocutory or internal issues ^[20].
Med-arb fosters better arbitrated decisions, understanding all the merits of the case, including confidential information obtained in private caucuses, helps the med-arbiter fashion a decision which meets the real needs and interests of the parties. In some variations of med-arb the third-party neutral renders a decision based solely on the area narrowed down by the parties during mediation. The parties may have reached a settlement on some of the issues, leaving less to be decided in arbitration. However, even when mediation fails to produce any settlement, the differences between the parties as they move to arbitration is often considerably narrowed, so that “a much more reasoned and more predictable result can be expected by the parties where the med-arbiter has to make the decision” ^[12].	The arbitrator’s decision is intended to be final and the ability to appeal is heavily circumscribed ^[21]. It is open to the parties to agree to exclude appeals to the court on a point of law, and this is often done. The upside is that once an arbitral award is made, that is generally the end of the matter (subject to the right to challenge the award on grounds of lack of jurisdiction or serious irregularity) ^[22].
Med-arb is most successful at resolving interest, or contract-negotiation disputes. To increase negotiated settlements, med-arb should be used as an extension of bargaining, rather than as a separate procedure, because it will be perceived as a more consensual, non-adversarial approach. This is comparable to the view that med-arb works best when the parties want to settle a dispute in an amicable manner and when a guaranteed solution is needed quickly. Several authors suggest that med-arb is best used in high-profile or difficult interest-dispute situations, for example, when a breakdown in negotiations could result in a strike that would have a serious impact on the community or economy ^[13].	Gaining time and money [compared to litigation], the principal advantages to employers of arbitration compared to civil litigation are time and money. Because of limited discovery and motion practice, as well as the informality of hearings, arbitration may cost far less than civil litigation. Arbitration can also resolve disputes more quickly than litigation hearing dates are usually scheduled well before a trial date would be set and, if parties are conservative in estimating the required time, or not beset by postponements, as is often the case with civil litigation. The informality of arbitration leads to relatively speedy hearings, and arbitrators typically render prompt decisions ^[23].
Med-arb is effective in settling grievances, Med-arb can be particularly helpful when the parties want a settlement on a particular issue but do not want to set a precedent. Med-arb also gives the employer and griever time to work out an arrangement to their mutual satisfaction, such as compensation or reinstatement, but still leaves both parties with a resolution if a settlement cannot be negotiated ^[14].
Med-arb ensures certainty that, either by agreement or by award, the dispute will be resolved. The parties are at liberty to put a time frame on that in their med-arb agreement. If the parties use only mediation, they run the risk of not settling all the issues in dispute. If they use only arbitration, they know that all the issues will be resolved but they deprive themselves of an opportunity to reach their own settlement agreement ^[15].
Only one third-party neutral is involved; if the dispute proceeds to arbitration, the third party is already familiar with the issues and argument; and very few cases in med-arb actually proceed to arbitration ^[16]. According to a study, when the mediator had the power to arbitrate, Disputants made fewer angry or hostile comments and fewer invidious comparisons, they also proposed more new alternatives for dealing with the issues, an indication of creative problem solving. Disputants behaved most constructively under med-arb and least constructively under straight mediation ^[17].

Undesirable outcomes

Med-arb process	Arbitration
The risk of competency, arbitrators who lack mediation experience may become offended when the parties reject their suggestions during mediation, and they may then pressure the parties into what they feel is an acceptable solution. While these problems may arise with any overly forceful mediator, they are more serious in med-arb because the parties may feel more inclined to concede to a forceful med-arbiter, knowing that the med-arbiter could ultimately decide the dispute ^[24]. In a study comparing mediation, med-arb with the same mediator and arbitrator, and med-arb with a different mediator and arbitrator, it was observed that during the mediation stage the “use of heavy pressure tactics – threats and strong advocacy of a particular solution” was greater in med-arb with the same mediator and arbitrator. Furthermore, it was observed that some med-arbiters pushed for a particular solution after only a few minutes of mediation and that disputants “appeared particularly anxious to follow the suggestions of and to please the mediator, perhaps because mediator prestige was greatest in this condition” ^[25].	Lack of jurisdiction over third parties, the powers of an arbitrator are prescribed and the only persons who are subject to their jurisdiction are the parties to the particular arbitration. Generally, claimants cannot join other parties to the proceedings. A party may use the same procedures available in relation to legal proceedings to secure the attendance of a witness in order to give oral evidence or to produce documents or other material evidence, but only with the permission of the arbitrator or the agreement of the other parties ^[32].
The relationship between the parties, since mediation and arbitration present two different procedures with different methods. In mediation, parties are generally familiar with each other and are open to communicate together and disclose further information. This is not the case in arbitration where parties’ behaviour tends to be reserved. Consequently, parties will think that any indication of flexibility could be interpreted as a sign of weakness which might adversely affect an award if the dispute goes to arbitration [med-arb process doesn’t guarantee]. The existence of a prior relationship between the parties is thought to be crucial to the success of med-arb because, in mature relationships, rights eventually give way to interests, mutual goals, and a living relationship. Procedures become less binding, and standards of conduct and fairness become paramount ^[26].	Arbitration is not necessarily cheaper than proceedings in the high court. Where an institution is involved, fees will be payable, the amount of which varies, and the parties will also have to pay the fees of the arbitrator(s) – usually on an hourly rate basis. The fees of the arbitrator will normally initially be split equally between the parties [33]. Indeed, an important due process issue in debates over employment arbitration has been whether employees are being required to pay a significant portion of arbitrator fees, which might serve as a barrier to access to the system ^[34].
Behavioural concerns of the parties. One of the most commonly recognised behavioural concerns with arb-med is that disputants are likely to be inhibited in their discussions with the mediator if they know that the mediator is, or is likely to be, acting as arbitrator in the same dispute. This, of course, can impede any forthrightness, or bargaining creativity, that a party may display. In particular, the parties are unlikely to let the mediator know what settlement proposals they are likely to accept. Another commonly raised concern is that having the arbitration procedure sitting as an endpoint may lead to parties treating any mediation set down in an arb-med process as merely preparation for the arbitration. By engendering such attitudes amongst the parties, the purpose of the mediation can be defeated, as any creative problem solving that may arise from the dialogue, disclosure and compromise in the mediation can be lost ^[27].	Arbitration awards do not establish precedent. This means that the decision reached in one arbitration is not binding on subsequent arbitrations which raise the same or similar legal issues or factual circumstances. The costs of agencies and arbitrators’ fees can also be a drawback to arbitration. Many employees believe that a serious obstacle to fair arbitration is the pool of available arbitrators ^[35].
An arbitrator may appear to be, and may even actually be, biassed if they have received private representations from the parties while acting as the mediator ^[28]. Added to this, if the mediation fails, the arbitrator will have learned confidential and/or attorney-client privileged information that may color his analysis in the arbitration process. This can jeopardise the integrity of the final award, subjecting it to later challenge [29]. Moreover, some critics fear that “having the power to arbitrate makes mediators too forceful; resulting in a decision that unduly reflects the views of the mediator” ^[30].	Procedural limitations. It is not possible to join a third party to an arbitration (without their agreement), it may be more difficult to obtain summary judgement, and disclosure may be more limited, than in the high court. It may be necessary to apply to the high court for interim injunctive relief in aid of the arbitral process. Whilst an arbitral tribunal has power to grant injunctive relief under the Act, it may not be possible to convene the tribunal quickly enough for the purpose of urgent interim injunctive relief ^[36].
In traditional mediation, the parties may reveal personal, confidential, and then even damaging information about their case to the mediator. Mediation may also reveal underlying interests, which may not surface in arbitration. Critics of med-arb are therefore concerned that med-arbiters may acquire ‘information in attempting to bring about a settlement that should have no bearing on their decision as adjudicators’. They suggest that it is unrealistic to expect a mediator-turned-arbitrator to put these underlying issues aside when making a decision ^[31].	Many of the same features that make arbitration desirable may make it undesirable to some employers. For example, because of the lack of effective review of arbitrator decisions, some observers fear that arbitrators can and do render clear erroneous or illogical decisions. Indeed, like jurors, some arbitrators are very willing to substitute their own judgement for that of an employer and/or to be guided only by their personal sense of ‘fairness’ in resolving employment dispute arbitrators may get an opportunity to do this especially when they a not required to issue a written decision explaining the basis for award ^[37].

Balance of Outcomes

Taken together, the available research suggests that adopting the med-arb process proves to be desirable in resolving precarious work conditions disputes. This innovative hybrid process fosters better arbitrated decisions and helps the med-arbiter fashion a decision which meets the real needs and interests of the parties. Also, using the same neutral saves time and cost.

Added to this, The Med-Arb flexibility provides efficient results by utilising each other’s natural advantages. Thus, it ensures certainty that, either by agreement or by award, the dispute will be resolved. Moreover, med-arb has proved its success at resolving both interests, or contract-negotiation, disputes and in settling grievances.

The mentioned benefits don’t deprive it from being risky at times mainly when the arbitrators lack competency where the issue of impartiality, bias and exposure of private information could be revealed. This can make the parties uncomfortable when negotiating with the third party and could make them reserved.

On the other hand, arbitration is not always useful in resolving the dispute. Even though. This traditional process provides three main benefits: confidentiality, flexibility and finality. The lack of jurisdiction over third parties, the expensive proceedings and the final decision that could not review or award a precedent for a similar legal issue makes it.

The desirable outcomes of med-arb process outweigh those of arbitration, and the undesirable outcomes of arbitration outweigh those of med-arb process. Therefore, adopting the med-arb process is preferred.

Recommendation

Taking into account the balance of outcomes, the benefits for parties to precarious working conditions in manufacturing industries disputes and the quality and consistency of the evidence, we make the following recommendation: for parties to a precarious work condition dispute, med-arb process is more conducive to well-being than arbitration.

View References

^[1] Amy Lieberman, Med-Arb: Is There Such a Thing?, Attorney at Law Magazine, 2012, p. 36.

^[2] Brian A. Pappas, « Med-Arb and the Legalization of Alternative Dispute Resolution », Harvard Negotiation Law Review, vol. 20, p. 160, 2015.

^[3] Megan Elizabeth Telford, Med-Arb: A Viable Dispute Resolution Alternative, Industrial Relations Centre, Queen’s University, 2000, p. 2.

^[4] Lieberman, op. cit., p. 36.

^[5] Richard Miskella, Briefing on Alternative Dispute Resolution in the Workplace, Global HR Lawyers, p. 3.

^[6] ELA Report, Arbitration and Employment Disputes, Employment Lawyers Association, 2017, p. 8.

^[7] Brian A. Pappas, op. cit., p. 168.

^[8] Alan L. Limbury, Med-Arb, Arb-Med, Neg-Arb and ODR, presented to the NSW Chapter of The Institute of Arbitrators and Mediators Australia, Sydney, 2005, p. 8.

^[9] Pappas, op. cit., p. 168.

^[10] Ibid., p. 168.

^[11] Telford, op. cit., p. 2.

^[12] Ibid., p. 5.

^[13] Ibid., p. 6.

^[14] Ibid., p. 6.

^[15] Ibid., p. 2.

^[16] Ibid., p. 2.

^[17] Ibid., p. 2.

^[18] Peter Frost, Arbitration of Employment Disputes, Blackstone Chambers, 2014, p. 13.

^[19] Ibid., p. 13.

^[20] ELA Report, op. cit., p. 8.

^[21] Frost, op. cit., p. 14.

^[22] ELA Report, op. cit., p. 8.

^[23] Stuart H. Bompey, Michael Delikat, and Lisa K. McClelland, « The Attack on Arbitration and Mediation of Employment Disputes », The Labor Lawyer, vol. 13, no. 1, Summer 1997, p. 34.

^[24] Telford, op. cit., p. 3.

^[25] Ibid., p. 3.

^[26] Ibid., p. 6.

^[27] Clyde Croft, Alternative Dispute Resolution in Arbitration: Is Arb-Med Really an Option?, Supreme Court of Victoria, 2014, p. 2.

^[28] Ibid., p. 4.

^[29] Lieberman, op. cit., p. 37.

^[30] Telford, op. cit., p. 3.

^[31] Ibid., p. 4.

^[32] Frost, op. cit., p. 14.

^[33] Ibid., p. 14.

^[34] Katherine V.W. and Alexander J.S. Colvin, The Arbitration Epidemic: Mandatory Arbitration Deprives Workers and Consumers of Their Rights, p. 27.

^[35] Bompey, Delikat, and McClelland, op. cit., p. 36.

^[36] ELA Report, op. cit., p. 8.

^[37] Bompey, Delikat, and McClelland, op. cit., p. 35.