Mediation of industrial and employment disputes : can mediation offer an alternative dispute resolution framework for Malta?

Abstract

Mediation as an alternative dispute resolution process plays an important role in conflict resolution in the industrial and employment dispute realm overseas. In Malta, conciliation is used solely for the voluntary settlement of trade disputes specifically for those disputes between employees' representative and the employer; employees and employers' association; or between employees' representative and employers' association. Conciliation is used widely within the employment context without distinction from mediation. The main distinguishing elements being that conciliation is used widely for collective mediation, that is between trade union and an employer while on the other hand, the term mediation is referred to within a context of an employee and employer in conflict. In Malta, disputes consisting of alleged unfair dismissal, discrimination, harassment, work of equal value and victimisation that fall within the exclusive jurisdiction of the Industrial Tribunal are not considered eligible for conciliation. The law aims at addressing conflict at collective level rather than at the individual level. Unless any one of the disputants takes the initiative to use mediation as an alternative dispute resolution, the only alternative is to open a case with the Industrial Tribunal. Therefore, the debate focuses on whether mediation can offer an alternative dispute resolution framework in Malta for all disputes that are within the sole jurisdiction of the Industrial Tribunal. This research study treats legislative frameworks and models from countries like Australia, the United Kingdom and New Zealand. The findings corroborate the concept for the use of mediation as an appropriate tool for employment related disputes. This is further backed by statistics that show that the majority of cases that are subject to ADR processes are successful with only a small percentage of cases being referred for arbitration. The study further elaborates these findings vis-à-vis the Maltese context through elite interviews with the main stakeholders. The results demonstrate that the process of mediation together with its advantages are not well understood and appreciated by the interested parties. However, there are stakeholders that would like to see mediation for all employment related disputes, hence giving value to the relationship between the parties and the possible settlement of a dispute voluntarily. Furthermore, based on the limited data available on employment disputes in Malta, there are already a considerable number of cases amongst those at the Industrial Tribunal that are resolved voluntarily before any decisions by the Tribunal. It is concluded that mediation can be an appropriate tool for dispute resolution. Therefore, it is being proposed that the mediation process is integrated within a structured approach to employment dispute resolution, through legislative amendments that make the mediation option mandatory. Although mediation is being proposed to be obligatory, this shall not impinge on the aspect of voluntariness, since parties to a dispute would still have the right to terminate mediation at their will at any stage of the process. Moreover, the dissertation makes a number of recommendations to further mediation in the Maltese Islands