Dispute Resolution

Dispute Resolution Methods

Avoidance

Negotiation

Mediation

Dispute Review Board

Arbitration

Litigation

Self-help

Avoidance

Even avoidance isnt avoidance

In construction we have lots of reasons to avoid

confrontation

In construction, 99% of avoided disputes

become bigger they fester they dont
self-resolve
But sometimes
resolution takes
a while

Negotiation

Dispute resolution between the parties involving only

the parties

Casual

Formal

Conversations, emails, texts, phone calls

Meetings, documentation, presentations

Resolution

Regardless of how you got there:

Put it in writing

Elevating the Negotiation

Cant settle at the jobsite level?

Push the dispute upstairs bubble up

Again, only the parties are involved

May be multiple meetings

Resolution must be written

Mediation

Mediation: Bringing in a respected, neutral,

uninvolved person to help everyone reach a mutually
acceptable resolution

The mediator DOES NOT decide

Mediation may not resolve a dispute

Key Points

Voluntary

The resolution is binding, but the process is not

There is no such thing as Binding Mediation

You set the rules

Mediation

The Parties must agree to mediate

The Parties must select a mediator

The Contract may define mediation terms,

procedures, maybe even the mediator

Select a mediator with whom you are

comfortable and who you believe will also be
credible with the other parties

Mediation The Process

Parties provide the Mediator with information to

understand the dispute

The Mediator chooses to meet individually with the

parties, or to call all parties together in a joint session

After a sufficient exchange of information, the Mediator

breaks the parties apart and begins shuttle diplomacy

The Mediator works for you make the Mediator work,

not just shuffle back and forth

Dispute Review Boards

A contractually defined process

3 members all are neutral:

Contractor nominated, Owner nominated

Those two appoint the 3rd neutral

Typically defined in the contract

But can be established any time the parties agree to do

so

Regular site visits

Conducts hearings

Dispute Review Board

Hearings

Frequently no attorneys

Parties explain their version to the DRB

Exhibits, Calculations, Presentations

DRB hears and receives the information

Dispute Review Board

Decisions

Check your contract terms vary

Typically non-binding but admissible

Probably the best independent evaluation

youll ever get for your problem

Arbitration

Arbitration is the submission of a dispute to one

or more impartial persons for a final and binding
decision, known as an "award."

Awards are made in writing and are generally

final and binding on the parties in the case.

From the American Arbitration Association website: www.adr.org

Non-Binding Arbitration

When the parties agree to Arbitrate, but also agree that

the result will only be binding if all parties agree to
accept the decision

Many view this as a dry-run

Could be considered similar to the Dispute Review

Board, but without the project knowledge of the DRB
members

In our Dispute Resolution Committees experience not

a common Dispute Resolution Methodology

The Hearings

NO Ex Parte communications

Arbitrator sets schedule

Proceedings are formalized through rules

Evidence is presented through sworn testimony

Arbitrator may question the witnesses and the

attorneys

Arbitrator sets, with party input, closing briefs,

submission timelines, and form of decision

The Decision

The Final Decision is Final

There are very few accepted ways to overturn a

Decision:

The Arbitrator failed to hear evidence

The Arbitrator was on the take, misbehavior

The Arbitrator exceeded the powers granted to the

Arbitrator

Other than winning an appeal using one or more of

those conditions you are stuck with the Decision.

Arbitration Pluses & Minuses

Finality

Letting a knowledgeable someone else decide

Speed

Cost

Evidence Rules Discovery, Depositions

Hearing Flexibility dates, format, location

Confidential Proceedings

Predictability

Litigation

May be a Federal or State Agency

Board of Contract Appeals, for example

In a courtroom, you get to choose

Judge: Bench Trial

Yesterday, the Judge sentenced a rapist to life, today, the Judge is

hearing you argue about money and time

Jury: Your Peers

Check that jury pool do any of them really understand the nuances of a
construction project?

EMPLOYEE
GRIEVANCES AND
DISCIPLINE

INTRODUCTION
When an employee feels that something is unfair in the organisation,
he is said to have a grievance. To be precise, grievances have
certain common features;

Features of the term grievance

Perceived non fulfilment of one's expectations leading to dissatisfaction with any

aspect of the organisation.

The dissatisfaction arises out of employment and not due to personal or family
problems

The reasons could be real or imaginary or disguised.

The discontent may be voiced or unvoiced

Employee Grievances And Discipline

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EMPLOYEE GRIEVANCES
Causes
Economic
Work environment
Supervision
Work group
Miscellaneous
Effects
If grievances are not identified and redressed properly, they may
adversely affect the workers, managers and the organisation.
Production
Employees
Managers
Employee Grievances And Discipline

22-4

Grievance Procedure
It is a formal channel of communication used to resolve grievances.
Having a formal grievance procedure has its own advantages.
Workers get a wonderful opportunity to ventilate their feelings.
Management can go back to the roots of a problem quickly.
Supervisors, too, have to fall in line and listen to workers
complaints more seriously. A fair redressal mechanism would boost
the morale of all employees greatly.

Employee Grievances And Discipline

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The discovery of grievances

The success of a grievance procedure, to a large extent, depends
on the various ways adopted to dig out the problem:

How to uncover grievances?

Observation

A formal grievance procedure

Gripe boxes

Open door policy

Exit interviews

Opinion surveys

Employee Grievances And Discipline

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Essentials of a formal grievance

procedure
A sound grievance procedure must have the following characteristics

Prerequisites of a grievance procedure

Conformity with statutory provisions

Unambiguity

Simplicity

Promptness

Training

Follow up

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Steps in the grievance procedure

Identify grievances

Define correctly

Collect data

Analyse and solve

Prompt redressal

Implement and follow up

Employee Grievances And Discipline

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Model Grievance Procedure

The model grievance procedure suggested by the National Commission
on Labour involves six successive time-bound steps each leading to the
next, in case employees have any reason to complain against any issue
affecting their organisational lives.

Model grievance procedure

P ro ce d u re

T im e F r a m e

A p p e a l a g a in s t w it h in a w e e k
M anager

3 days

G r ie v a n c e C o m m it t e e

7 d a y s u n a n im o u s

HOD

3 days

S u p e rv is o r

4 8 h o u rs

F o re m a n
W o rk e r

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Grievance Procedure
Guidelines for handling grievances

Treat each case as important and get the grievance in writing

Talk to the employee directly

Discuss in a private place

Handle each case within a time frame

Examine company provisions in each case

Get all relevant facts

Control your emotions

Maintain proper records

Be proactive, if possible.

Employee Grievances And Discipline

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Discipline
In a restricted sense, it is the act of imposing penalties for wrong
behaviour (negative); broadly speaking, it is a condition of orderliness,
where employees willingly practice self control and respect organisational
rules and codes of conduct (positive). The differences between the two
sides of the same coin could be expressed thus:

The differences between positive and

negative discipline
P o in t

N e g a tiv e D is c ip lin e

P o s itiv e D is c ip lin e

C oncept

I t i s a d h e r e n c e t o e s t a b li s h e d n o r m s
a n d r e g u la t i o n s , o u t o f f e a r o f
p u n is h m e n t .

I t is t h e c r e a t io n o f a c o n d u c i v e c lim a t e
in a n o r g a n i s a t i o n s o t h a t e m p lo y e e s
w i ll in g ly c o n f o r m t o t h e e s t a b lis h e d r u le s .

C o n f lic t

E m p lo y e e s d o n o t p e r c e iv e th e
c o r p o r a t e g o a ls a s t h e ir o w n .

T h e r e is n o c o n fl ic t b e tw e e n in d i v id u a l
a n d o r g a n i s a t io n a l g o a ls .

S u p e r v is i o n

R e q u ir e s i n t e n s e s u p e r v is o r y c o n t r o l
to p r e v e n t e m p lo y e e s f r o m g o in g o ff
th e tra c k .

E m p lo y e e s e x e r c is e s e lf c o n tr o l t o m e e t
o r g a n is a t io n a l o b j e c t iv e s .

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Discipline
Some of the common disciplinary problems confronted by
organisations include the following

Common disciplinary problems

A tte n d a n c e -r e la te d p r o b le m

O ff th e J o b b e h a v io u r p r o b le m s

U nexcused absence

I n s u b o r d in a t io n

C h r o n ic a b s e n t e e is m

S m o k in g

L e a v in g w it h o u t p e r m is s io n

F i g h t i n g w i t h c o ll e a g u e s

E x c e s s iv e t a r d in e s s

G a m b lin g , b e t t in g

C a r e le s s n e s s

D is h o n e s t y a n d r e la t e d p r o b le m s

T h e ft, u n s a fe a c ts

S le e p in g w h ile a t w o r k

F a ls if y i n g e m p lo y m e n t a p p li c a t io n

U s in g a b u s iv e la n g u a g e a g a in s t s u p e r v is io r s

W ilf u lly d a m a g in g f a c t o r y a s s e t s

S e x u a l h a ra s s m e n t

F a ls ify in g w o r k r e c o r d s

A c c e p t in g b r ib e s , g ift s

P e r fo rm a n c e r e la te d p ro b le m s

F a ilu r e t o c o m p le t e a s s ig n e d w o r k

P r o d u c in g s u b s t a n d a r d p r o d u c t s

F a ilu r e t o m e e t p r o d u c t io n n o r m s

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Discipline
Causes of Indiscipline

Absence of effective leadership

Unfair management practices

Communication barriers

Non-uniform disciplinary action

Divide and rule policies

Inadequate attention to personnel problems

Employee Grievances And Discipline

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Positive Discipline Approach

The positive discipline, based upon reminders, is a cooperative
discipline approach where employees responsibility for the desired
behavioural change. The focus is on coping with the unsatisfactory
performance and dissatisfactions of employees before the problems
become major.

Employee Grievances And Discipline

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Steps in positive discipline approach

Step 1: An Oral Reminder: Notice here that the word warning is removed. The oral
reminder, supported by written documentation, serves as the initial formal
phase of the process to identify to the employee what work problems he or
she is having. This reminder is designed to identify what is causing the
problem and attempts to correct it before it becomes larger.
Step 2: A Written Reminder: If the oral reminder was unsuccessful, a more
formalised version is implemented. This written reminder once again reinforces what
the problems are and what corrective action is necessary.
Furthermore, specific
time tables that the employee must accept and abide
by, and the
consequences for failing to comply, are often included.
Step 3: A Decision-making Leave: Here, employees are given a decision-making
leavetime off from work, usually with payto think about what they are
doing and whether or not they desire to continue work with the company:
This deciding day is designed to allow the employee an opportunity to make
a choicecorrect the behaviour, or face separation from the company.

Employee Grievances And Discipline

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Progressive Discipline Approach

In a progressive discipline system, the employee is given ample
warning of performance or other work related problems. Failure to
change his or her behaviour is accompanied by increasingly harsher
disciplinary action. Due process is based on the action that
employees have the right to be treated fairly, particularly when being
disciplined.

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The Progressive Discipline Approach

Im p r o p e r b e h a v io u r

D o e s t h i s v i o l a t io n
w a r r a n t d is c ip lin a r y
a c tio n ?

No

N o d is c i p l in a r y
a c tio n

No

O ra l
w a rn in g

No

W r itt e n
w a rn in g

Ye s
D o e s t h is v io la t io n
w a rra n t m o re th a n
a n o r a l w a r n in g ?
Ye s
D o e s t h i s v i o l a t io n
w a rra n t m o re th a n
a w ritte n w a rn in g ?
Ye s
D o e s t h i s v i o l a t io n
w a rra n t m o re th a n
a s u s p e n s io n ?
Ye s
Te r m in a tio n

Employee Grievances And Discipline

No
S u s p e n s io n

22-17

Progressive Discipline Approach

The Red Hot Stove Rule
This rule states that discipline should be immediate, consistent, impersonal
and should be in writing.
Disciplinary Action in India
The disciplinary action followed in most Indian companies consists of the
following steps:

Issuing a letter of charge

Considering the explanation offered by the employee

Issuing a show cause notice

Holding an enquiry based on principles of natural justice

Employee Grievances And Discipline

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Progressive Discipline Approach

Giving a fair chance to employee to explain his case thoroughly
Enabling the employee to cross examine the evidence furnished by
management
Explain his own point of view without any fear or pressure
See that punishment is in line with the offence committed.

Making a final order of punishment consisting of various actions such as:

Dismissal
Discharge
Suspension
Demotion to a lower grade
Withholding of increments
Imposing fines
Issuing a warning
Initiating follow up action.

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Essentials of A Good Disciplinary System

Rules and performance criteria

Documentation of facts

Consistent response to rule violations

Training of supervisors

Prompt action

Impersonal discipline

Reasonable penalty

Follow up

Employee Grievances And Discipline