Dispute resolution 2 Flashcards
What is mediation?
Mediation is a process that necessarily involves the participation of a neutral third party (a mediator) who helps the disputing parties find solutions to contested issues
When is mediation done?
Mediation is used when the parties to the conflict have exhausted the procedures established in the collective agreement and thus have failed to settle the dispute
What is involved in the mediation process?
- The Commission shall request the parties to settle the dispute by mediation within three days of the Commission becoming aware of the non-resolution of the dispute.
- At the end of the mediation, the agreement shall be documented and signed by the mediator and the parties to the dispute.
- The agreement shall be binding on all the parties unless otherwise stated by the agreement.
- When no agreement is reached, the mediator shall declare the dispute as unresolved and refer the dispute to the Commission.
How are mediators appointed?
- The Commission shall maintain a list of qualified persons who are knowledgeable in industrial relations to serve as mediators or arbitrators for each region in Ghana. Appointments of mediators may be made from the list
- In situations where the disputing parties have knowledge of a mediator they would like to invite to facilitate the process, that could be considered. Thus, a mediator not on the Commission’s list can be used.
What is arbitration?
A dispute settlement process by the use of a neutral third party. When mediation fails, the dispute is referred to voluntary arbitration.
What are the two types of arbitration?
- voluntary
- compulsory
What happens during the voluntary arbitration process?
Refer to Section 157 of the Labour Act (2003), Act 651 for the process
The decision of the arbitrator or a majority of the arbitrators shall constitute the award and shall be binding on all the parties
What happens during compulsory arbitration?
If a dispute is referred to compulsory arbitration the Commission shall be the arbitrators and shall serve on the parties a notice (Refer to Section 164)
In compulsory arbitration, the decision of the majority of the arbitrators shall constitute the award and shall be binding on all the parties.
How are arbitrators appointed?
- The parties to an industrial dispute shall agree on the method of appointment otherwise, the Commission shall appoint the arbitrator or arbitration panel.
- An arbitrator that has any financial or other interest such as a shareholding, consultancy etc in the undertaking or employers’ or workers’ organisation involved in the dispute is not qualified (conflict of interest
- The Commission shall maintain a list of qualified persons who are knowledgeable in industrial relations to serve as arbitrators for each region in Ghana. Appointments of arbitrators may be made from the list
- In situations where the disputing parties have knowledge of an arbitrator or panel of arbitrators they would like to invite to facilitate the process, that could be considered. Thus, a mediator not on the Commission’s list can be used.
What are the powers of an arbitrator?
An arbitrator shall have the powers of the High Court in;
-enforcing attendance
-examining persons on oath or affirmation
-compelling the production of documents
What can be done if there is a vacancy in the arbitration panel
- The arbitrators may with the consent of the parties, act notwithstanding the vacancy. That is, if the disputing parties do not mind the absence of a member on the panel.
- Where the parties fail to give their consent, the party whose number of arbitrators is affected by the vacancy, shall appoint another arbitrator to fill the vacancy immediately; failing that the Commission shall appoint another arbitrator to fill the vacancy.
- In a compulsory arbitration, where a vacancy occurs in the arbitration panel, the other member of the Commission representing the interest group of the absent arbitrator shall fill the vacancy. The arbitrator that can defend the interest of the party affected shall be appointed.
