The emergence of a dual system of dispute resolution: private facilitators in Irish industrial relations

• DOI: http://doi.org/10.1111/irj.12105
• Published date: 01 July 2015
• Author: William K. Roche
• Date: 01 July 2015

The emergence of a dual system of dispute

resolution: private facilitators in Irish

industrial relations

William K. Roche

ABSTRACT

This article examines the practice of private facilitation in Irish industrial relations,

drawing on interviews with key practitioners and on case studies. It explores ante-

cedents of private facilitation, examines the multiple processes involved, identifies

influences on the growth of private facilitation and locates the Irish case in compara-

tive context.

1 INTRODUCTION

While much is known internationally about the work of state conflict resolution

agencies in industrial relations (see, e.g. Brown 2014; Goodman, 2000; Valdes

Dal-Re, 2003; Welz and Kauppinen, 2005), relatively little is known about the work

of private facilitators. Private facilitators are practitioners engaged by employers

and unions, and also possibly by state agencies, to assist the process of collective

bargaining in various ways, or to support dispute resolution. They may be inde-

pendently employed or work in conflict resolution or HR consulting firms. They

may focus on collective bargaining and industrial relations, or offer services in these

areas in addition to providing mediation and related activities in grievances involv-

ing individual employees. Practitioners of this kind have been active to varying

degrees in industrial relations in all Anglo-American jurisdictions. There has been a

significant rise in the numbers of private facilitators practising in Ireland in recent

decades and they now play a significant role in industrial relations and dispute

resolution. This article examines their work and explores the influences that account

for the growing prominence of private facilitation in the Irish case. The article

begins by reviewing the limited international evidence on the incidence and work of

private facilitators. The next section sets the context by examining the growth of

private facilitation in Ireland and presents the research methods used to study

private facilitation. The article then examines the dispute prevention and resolution

processes in which private facilitators are involved and their experiences and views

regarding their work. The article next considers influences on the growth of private

facilitation. The article concludes by returning to the comparative context and

❒William K. Roche is Professor in the School of Business, University College Dublin. Correspondence

should be addressed to William K. Roche, School of Business, University College Dublin, Dublin Co.

Dublin, Ireland; email: bill.roche@ucd.ie

Industrial Relations Journal 46:4, 293–311

ISSN 0019-8692

© 2015 John Wiley & Sons Ltd

import of the Irish case. The article shows that Anglo-American dispute resolution

systems comprise two main models: dual systems, like those of the United States

and Canada, where various forms of private facilitation and state provision are

found, and unitary systems, like those of the UK, Australia and New Zealand,

where public agencies virtually monopolise dispute resolution. It shows that private

facilitation has expanded significantly in Ireland and reveals the features of private

facilitation as commonly involving a blend of assisted bargaining, conciliation,

investigation or fact-finding and arbitration. The growth of private facilitation in

Ireland is attributed to the interaction of demand-side influences (complex restruc-

turing programmes, the search for more flexible forms of third-party mediation by

employers and unions, the vogue from the 1990s in workplace partnership and

changes in the practice of the Irish Labour Court) and supply-side influences (the

growing availability of skilled and experienced facilitators, and the advent of con-

sultancies and more proactive approaches to marketing facilitation services). The

article finally shows that the dispute resolution system in Ireland is evolving

towards a dual system, with overlapping public and private provision of third-party

services.

2 ANGLO-AMERICAN COUNTRIES: UNITARY AND DUAL DISPUTE

RESOLUTION SYSTEMS

The prevalence and nature of private facilitation varies from country to country. The

focus here will be on Anglo-American countries that share a tradition of third-party

involvement in collective bargaining and conflict resolution beyond the ambit of civil

courts. In the United States and Canada, a variety of facilitation roles developed from

the 1990s during the vogue in ‘workplace partnership’. These involved the provision

of support in such areas as quality of work–life initiatives, new forms of work

organisation, interest-based bargaining, the establishment and facilitation of partner-

ship committees and changes in dispute resolution processes and systems

(Chaykowski et al., 2001: Ch. 2). With respect to the conduct of collective bargaining,

new roles emerged for third parties who might now be required to undertake more

complex mediation activities that included addressing deeper underlying issues sur-

rounding the relations between the parties to collective bargaining (Chaykowski et al.,

2001: Ch. 4; Cutcher-Gershenfeld et al., 2007; Lipsky et al., 2014). That said, privately

engaged arbitrators, who have long played a key role in dispute resolution in US New

Deal industrial relations, remained wedded in the main to rights-based adjudication

and were reluctant to adopt more flexible, ‘interest-based’ modes of mediation

(Chaykowski et al., 2001: 15; Cohen, 2010: 14). The growth of private employment

arbitration in the non-union sector has resulted from decisions by the US Supreme

Court and the decline in the labour movement and collective bargaining (Corby and

Burgess, 2014; Seeber and Lipsky, 2006). In the US education sector, new facilitation

and co-facilitation roles (involving pairs of third parties mandated by employers and

unions) also emerged around initiatives in interest-based bargaining that had been

animated by education reforms. Not all approaches to interest-based bargaining

however favoured the use of facilitators (Klingel, 2003: 33). Private facilitation and

arbitration coexists with public provision for dispute resolution and prevention

through the Federal Mediation and Conciliation Service (FMCS) in what might be

termed a dual or binary dispute resolution system.

294 William K. Roche

© 2015 John Wiley & Sons Ltd