One of the most significant dangers of ADR in the workplace, is the temptation to assume that informal processes can trump the external legal rights of workplace participants. Let's take, for example, the situation where the employer insists upon a mediation process to resolve a human rights discrimation case. Mediation diverstion can be extremely successful for such cases in the right situations. This time, however, the employer insists that the employee sign a document stating that this mediation process will take the place of any adjudication through the human rights process. Clearly, in Canadian jurisdications at least, this would be viewed as an improper demand - and would not likely stand up in the external legal processes available.
The fairness system should not overreach its authority by infringing upon the legal rights of the participants. Decisions must be considerate of the legal entitlements of participants and invite legal counsel if needed. For example, if mediation ends with a signed agreement that precludes a participant from seeking further redress in the common law courts, the participants should be aware of their options. Where legal entitlements are effected, participants must have appropriate legal advice. The mediator could make a tentative agreement and defer the final decision until the participants have obtained legal advice. Alternatively legal advice could be engaged as a part of the mediation. Thus, the Legal Focus measures the extent to which the fairness system protects the legal rights of the participants.
This concludes the first part of this series of articles on the elements of fairness in workplace conflict management systems: the Justice Quotient. The next series of articles will explore the measurement of Efficiency in workplace conflict management systems.
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