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DOI: https://doi.org/10.34069/AI/2024.73.01.8
How to Cite:
Ustinova-Boichenko, H.M., Skriabin, O.M., Fatah, A.A., Yunatskyi, M.O., & Yamkovyi, V.I. (2024). Alternative forms of
resolution of labor disputes. Amazonia Investiga, 13(73), 100-113. https://doi.org/10.34069/AI/2024.73.01.8
Alternative forms of resolution of labor disputes
АЛЬТЕРНАТИВНІ ФОРМИ ВИРІШЕННЯ ТРУДОВИХ СПОРІВ
Received: September 27, 2023 Accepted: November 21, 2023
Written by:
Hanna M. Ustinova-Boichenko1
https://orcid.org/0000-0001-5821-3832
Oleksii M. Skriabin2
https://orcid.org/0000-0002-8915-5943
Anna Abdel Fatah3
https://orcid.org/0000-0001-9494-7614
Marian O. Yunatskyi4
https://orcid.org/0000-0003-2093-716X
Vladyslav I. Yamkovyi5
https://orcid.org/0000-0001-5662-7951
Abstract
The purpose of the article is to identify effective
alternative forms of labour dispute resolution based
on the analysis of theoretical information and
practical experience of their application in the
modern world and the possibility of their use in
Ukraine. The methodological basis of the work is
the methods of analysis and synthesis, comparative
law, logical and legal, abstract and logical methods,
and the method of generalisation. The author
identifies the features and advantages of using the
main alternative forms of labour dispute resolution:
conciliation, direct negotiations, mediation,
arbitration, and mediation. The author examines the
international experience of using alternative forms
of labour dispute resolution (France, Bulgaria,
Poland, and the United Kingdom). The reasons for
the low prevalence of the use of alternative forms
of labour dispute resolution in Ukraine are: lack of
legislative regulation or gaps in it; low level of
public awareness; lack of qualified specialists
(arbitrators, mediators). The author identifies the
appropriate measures for the effective
implementation of alternative forms of labour
1
Docent, PhD in law, head of the department of Civil and Commercial Law of the Kryvyi Rih Educational and Scientific Institute of
the Donetsk State University of Internal Affairs, Kryvyi Rih, Ukraine. WoS Researcher ID: AAE-3383-2022
2
Professor, Doctor of legal sciences, Professor of the department of Civil and Commercial Law of the Kryvyi Rih Educational and
Scientific Institute of the Donetsk State University of Internal Affairs, Kryvyi Rih, Ukraine. WoS Researcher ID: ADX-2439-2022
3
PhD in law, Associate Professor of Civil and Commercial Law of the Kryvyi Rih Educational and Scientific Institute of the Donetsk
State University of Internal Affairs, Kryvyi Rih, Ukraine. WoS Researcher ID: ACM-1356-2022
4
Docent, Ph.D. in Economics, Associate Professor, Department of Civil and Commercial Law of the Kryvyi Rih Educational and
Scientific Institute of the Donetsk State University of Internal Affairs, Kryvyi Rih, Ukraine. WoS Researcher ID: IZH-8770-2023
5
Docent, PhD in Law, Associate Professor Law Institute State University of Economics and Technology, Kryvyi Rih, Ukraine.
WoS Researcher ID: JVP-2990-2024
Ustinova-Boichenko, H.M., Skriabin, O.M., Fatah, A.A., Yunatskyi, M.O., Yamkovyi, V.I. / Volume 13 - Issue 73: 100-113 /
January, 2024
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dispute resolution in Ukraine, which will reduce the
burden on the judicial system, and resolve labour
conflicts more quickly, efficiently, and with lower
material costs.
Key words: regulation, legislation, labour disputes,
mediation, arbitration, conciliation, alternative
dispute resolution, forms of labour rights
protection, non-jurisdictional forms of labour rights
protection.
Introduction
In today's world, the issue of labour dispute
resolution is of particular importance. The
international community pays special attention to
the protection of the human right to work, as
labour is the main source of well-being for
citizens and the state as a whole.
The dynamism of change, economic crises,
changes in labour organisation at the
international level related to the COVID-19
pandemic, the impact of sociocultural changes on
labour relations - all of this contributes to an
increase in the level of pressure employers exert
on employees. In addition, there is instability in
the labour market, which can also have a negative
impact on the exercise of employees' rights.
The protection of labour rights is more often
considered in the context of court proceedings,
but alternative forms of labour dispute resolution
are becoming increasingly important. Scholars
study various ways of regulating and resolving
labour disputes outside of court, but there is no
unified approach in the scientific community on
this issue.
Alternative forms of resolving labour disputes
allow for a settlement of the situation, thus
relieving the country's judicial system. In
addition to alternative labour dispute resolution,
online labour dispute resolution is gaining
popularity. Alternative methods and online
labour dispute resolution are characterised by
greater flexibility, efficiency, and convenience
compared to the court procedure.
The current legislation of European countries
emphasises the importance of the human right to
work. For example, the European Social Charter
states that achieving and maintaining stability
and high levels of employment is one of the
leading objectives of public policy (Council of
Europe, 1996). The Charter also establishes the
task of the state to protect the right of every
worker to earn a living through his or her chosen
profession. However, despite the tasks set out in
the Charter, the number of labour disputes is not
decreasing, so it is important to implement and
develop effective ways to resolve labour
disputes, taking into account the current dynamic
realities.
This is especially true in Ukraine, as the
development of labour relations is currently in its
infancy. The settlement of labour disputes is the
most vulnerable area due to outdated and
inefficient labour legislation. It should be noted
that Ukrainian legislation is gradually being
improved and changes are being implemented,
but it is necessary and important to introduce a
legislative mechanism for regulating labour
disputes through alternative forms.
Therefore, it is advisable to analyse and study the
specifics and experience of using alternative
forms of labour dispute resolution, which will
reduce the burden on the judicial system, speed
up the labour dispute resolution process and
peacefully resolve conflicts in the field of labour
relations.
The paper aims to identify effective alternative
forms of labour dispute resolution based on the
analysis of theoretical information and practical
experience of their application in the modern
world and the possibility of their use in Ukraine.
Methodology
The researchers carried out a comprehensive and
systematic analysis of alternative forms of labour
dispute resolution, which involves the
application of general theoretical and special
scientific methods and approaches.
Using the method of comparative analysis, the
author identifies the advantages and
disadvantages of judicial and extrajudicial forms
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of labor dispute resolution.The dialectical
method is used for the general characterization of
alternative forms of labor dispute resolution. It is
established that alternative forms of labor dispute
resolution are more efficient, cost-effective and
effective.
A systematic analysis of the theoretical
contributions of modern Ukrainian and foreign
authors has made it possible to identify the most
common alternative forms of conflict resolution
in the labor sphere: mediation, conciliation,
direct negotiations, arbitration and med-arb. The
author highlights the features and specifics of
each type of out-of-court forms of labor dispute
resolution.
The methods of analysis and synthesis made it
possible to identify the specific features and
distinctive characteristics of mediation,
arbitration, direct negotiations, and conciliation
as the main alternative forms of labour dispute
resolution.
To achieve this goal, the author uses the
following research methods: analysis of legal,
scientific, and methodological literature by
foreign scholars and Ukrainian authors to define
the categorical and conceptual apparatus of the
study; analysis of legislation to determine the
features, specifics, and advantages of alternative
forms of labor dispute resolution in different
countries.
The information and analytical basis of the article
is made up of international legal and regulatory
documents governing the use of alternative forms
of labor dispute resolution in different countries
of the world:
1) International
1. Committee of Ministers of the Council of
Europe. (1981).
2. Committee of Ministers of the Council of
Europe. (1986).
3. Committee of Ministers of the Council of
Europe. (2002).
4. Directive on certain aspects of mediation in
civil cases and commercial affairs (2008).
5. Committee of Ministers of the Council of
Europe. (1998).
6. Convention on International Settlement
Agreements Resulting from Mediation
(United Nations, 2019).
7. European Social Charter. Council of Europe
(1996).
2) Ukrainian:
1. Law on Mediation No. 1875-IX. (2021).
Law of Ukraine dated November 16, 2021.
2. Law of Ukraine No. 1618-IV. Civil
Procedure Code of Ukraine: of March 18,
2004.
3. Labour Code of Ukraine (2019).
Consolidated version as of June 1, 2019.
3) Other states:
1. Labor Code of the Republic of Poland
(1974).
2. French Labour Code (2019).
3. Bulgarian Law on Mediation (2004).
4. Labour Code of the Republic of Bulgaria
(1987).
The method of comparative law helped to
determine the specifics of the use of alternative
forms of labour dispute resolution in different
countries in order to identify the possibilities of
implementing such forms of labour dispute
resolution in Ukraine. The comparative legal
method also helped to formulate general
recommendations for the effective use of
alternative forms of labour dispute resolution in
Ukraine to protect the rights of employees.
The author examines the practice of applying
alternative forms of labor dispute resolution in
different countries of the world on the example
of Poland, Bulgaria, Great Britain and France.
A systematic approach is used to study each
element of the system of alternative forms of
labor dispute resolution, their interconnection,
and differences, with a view to determining the
advantages and limitations of each type of issue
under study.
Based on a systematic analysis of international
experience in the use of alternative forms of labor
dispute resolution, the author identifies the
specific features of each type of out-of-court
labor dispute resolution. The following
characteristics are highlighted: participants to the
labor dispute resolution procedure; final result;
features; advantages and disadvantages. A
comparative analysis of alternative forms of
labor dispute resolution is carried out based on
the following features: duration of the procedure;
the need for participation of experts/specialists;
and cost of the procedure.
The comparative legal method also helped to
formulate general recommendations for the
effective use of alternative forms of labour
dispute resolution in Ukraine to protect the rights
of employees.
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The logical and legal method was used to analyse
the specifics of labour dispute resolution in
Ukraine. Generalisation of theoretical
provisions, the establishment of cause and effect
relationships, and the formulation of conclusions
were carried out using the abstract logical
method and the method of generalisation.
The analysis of the specifics of alternative forms
of labor dispute resolution made it possible to
determine the possibilities of implementing
international experience into Ukrainian practice.
The authors conclude that it is advisable to
introduce the use of alternative forms of labor
dispute resolution in Ukraine at the legislative
level. Based on the results of the study, the
authors conclude that the most relevant and
effective forms of labor dispute resolution in
Ukraine will be such alternative forms of labor
dispute resolution as conciliation, direct
negotiations and mediation. This is due to the
advantages of these forms of labor dispute
resolution, such as the effectiveness of the final
result and lower material costs for the procedure.
The author uses the methods of abstraction and
generalization to identify the peculiarities of the
implementation of alternative forms of conflict
resolution in the labor sphere in Ukraine in
modern conditions. The modeling and
forecasting methods allowed the author to
identify ways to improve the use of alternative
forms of labor dispute resolution in Ukraine. By
using the method of analysis and generalization,
the author draws conclusions based on the study.
Literature review
Consideration of the issue of alternative forms of
labour disputes regulation should begin with the
definition of the essence of the concept of
“labour disputes”. Thus, V. Burak understands
the concept of labour disputes as “disagreements
between the subjects of labour relations that are
not settled as a result of mutual negotiations and
arise from the application of labour legislation or
the establishment or change of working
conditions” (Burak, 2003; p. 12).
Yu. Shemchushenko et al., (2004) gives a deeper
definition of the term labour relations:
these are unresolved disagreements that arise
between an employee and an employer or
between employees and employers on the
application of laws, other labour regulations and
the terms of an employment contract or the
establishment or change of working conditions,
conclusion of an agreement. (p. 576).
The peculiarity of this definition is the allocation
of types of labour disputes, depending on the
subject - individual and collective labour
disputes.
It is advisable to identify the limitations and
inaccuracies of the above definitions with regard
to such a characteristic as “unsettledness”. At
present, labour relations are sufficiently
regulated by both regulations and provisions of
employment contracts. Therefore, it is necessary
to provide a more precise definition of the
concept under study. Ukrainian scholars define
labour disputes as “disagreements between
labour law subjects on the application of labour
law or the establishment of new working
conditions submitted to a jurisdictional body for
consideration” (Yaroshenko, 2022).
Labour disputes can be resolved in court or out
of court (Mishchuk, & Pasichnyk; 2014).
Previously, labour rights protection usually took
place in court, so labour disputes took a long time
to resolve.
(Vavzhenchuk, 2013) notes that
in practice, the protection of labour rights is
usually limited to judicial protection, which is far
from perfect and does not always provide timely
and prompt protection of violated labour rights,
as the courts are, firstly, overloaded, and
secondly, the current system of consideration and
resolution of labour disputes needs to be
improved (p. 444).
Therefore, the out-of-court procedure, which
involves the use of conciliation procedures -
alternative forms of labour dispute resolution - is
becoming increasingly common. Scholars define
alternative ways of resolving labour disputes as
“a set of procedures not prohibited by law aimed
at peaceful settlement of disputes between the
parties on the basis of coordination of their
positions and interests, carried out by the parties
to the conflict themselves or with the
involvement of other persons, to develop a
mutually acceptable solution that satisfies the
interests of each of them and aims to resolve the
conflict” (Burak, 2015).
Considering the practice of labour dispute
resolution in Ukraine, it is worth noting a
significant event - the signing of the Association
Agreement with the European Union. As a result,
“Ukraine has undertaken to carry out certain
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reform actions aimed at transforming legal
regulation, in particular the labour sphere and the
sphere of labour dispute resolution, to European
standards” (Terekh, 2020). Accordingly, the
practice of resolving labour disputes in Europe is
dominated by out-of-court mechanisms, which
are characterised by higher efficiency and
promptness.
(Rieznikova, 2012; p. 10) notes that “alternative
dispute resolution is defined as a group of
processes by which disputes, conflicts and cases
are resolved without resorting to court
proceedings”. In turn, (Izarova, 2015) specifies
that “alternative dispute resolution methods
provide a real opportunity to resolve a dispute
without a trial and overcome the related problems
of high cost, excessive duration, complexity, and
the need to represent interests in court” (p. 255).
In other words, alternative forms of labour
dispute resolution provide easy access, efficient
dispute resolution, and proportionate costs.
Any mechanism for resolving labour disputes
that takes place outside of court proceedings is
considered to be an alternative. Typically,
alternative forms of labour dispute resolution
include neutral assessment, conciliation,
mediation, negotiation, and arbitration. An
increasing number of countries are adopting
alternative forms of labour dispute resolution due
to the increased workload of the judicial system,
the rising costs of litigation, and time delays.
Some such programmes are mandatory, while
others are voluntary. The most common “forms
of alternative dispute resolution are arbitration
and mediation, the parties to the relevant
relations almost always try to resolve disputes
through negotiations, and the main advantage of
this form is that it allows the parties themselves
to control the process and resolution” (Legal
Information Institute, 2021).
(Barona, 2014) notes that “alternative dispute
resolution was initially perceived as an
alternative to state courts, but today it is clear that
alternative dispute resolution is a complement to
the judicial system”.
V. Burak (2017), clarifying the definition of the
concept of alternative forms of labour dispute
resolution, notes: “only such methods that are
consensual in nature and necessarily involve the
participation of neutral, independent persons in
the dispute resolution are recognised as an
alternative”. The advantage and specificity of
such methods is that the parties can make their
own decisions and settle the dispute or resolve
the conflict by engaging an intermediary.
Analysing the world experience of applying
alternative mechanisms of labour dispute
resolution confirms the feasibility and
effectiveness of this form of conflict resolution
(Paladii, & Sheveleva, 2007 p. 4-7). This is a
very real and viable mechanism of conflict
resolution (Hoiko, 2011). Therefore, in European
countries, 80 % of labour disputes pending
before the courts are referred to mediation and
eventually resolved out of court (Volkovytska,
2018).
Most European civil procedure codes provide for
the mandatory use of alternative dispute
resolution methods. Thus, in Belgium and
France, the court must offer the parties to resolve
the conflict through ADR mechanisms, and in
England, the court has the right to impose
financial sanctions on the parties to the dispute if
they refuse, for example, mediation (Kossak,
2009).
(Hryn, 2022) notes the important role of the
Committee of Ministers of the Council of
Europe, which has adopted a number of acts
aimed at simplifying access to justice:
1. Committee of Ministers of the Council of
Europe (1981). This recommendation
recognises that legal proceedings are often
complex, lengthy, and expensive. Therefore,
governments are encouraged to take
measures to simplify, expedite, and reduce
the cost of court proceedings. This can be
achieved through measures such as
conciliation or amicable settlement of
disputes.
2. Committee of Ministers of the Council of
Europe (1986) This recommendation states
that it is advisable to include in the judicial
policy the promotion of reconciliation of the
parties both outside the judicial system and
before and during the trial, in order to reduce
the workload of the courts, reduce
unnecessary jobs, improve the quality of
justice.
3. Committee of Ministers of the Council of
Europe. (2002). The purpose of this
Recommendation is to clarify the meaning
of the term “civil matters”, which refers to
cases involving civil rights and obligations,
including commercial, consumer, and labour
law cases.
4. Directive on certain aspects of mediation in
civil cases and commercial affairs (2008).
The purpose of this directive is to facilitate
access to dispute resolution through
mediation and to ensure a balance between
court proceedings and mediation.
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5. Committee of Ministers of the Council of
Europe. (1998).
In accordance with international and European
legislation, the most common alternative forms
of conflict resolution in the labour sphere are as
follows:
− reconciliation through conciliation
procedures;
− mediation;
− direct negotiations;
− arbitration procedures (Butynska, 2020).
The specificity of using such forms of labour
dispute resolution is that “the use of one of the
procedures does not exclude the possibility of
using another option for resolving a labour
dispute” (Burak, 2017).
1. Reconciliation
Conciliation is an alternative “method of
resolving a labour dispute, which consists in
finding a solution mutually acceptable to the
parties through negotiation, mediation,
conciliation, or other procedure. It is an effective
means of reaching a compromise between the
parties if all possibilities not prohibited by law
are properly used” (Burak, 2017). The essence of
reconciliation lies in its restorative function
aimed at “bringing social relations back to the
state in which such relations were before their
violation” (Enykeev, 1996).
2. Mediation
Al-Khafaji (2021). notes that mediation before it
became a legal means of dispute resolution, was
a social phenomenon. Mediation was inherent in
societies in ancient and modern history. It has
played a very important role in the organisation
of social relations for thousands of years.
Mediation in the context of dispute resolution is
defined as any process in which the parties ask
another person, called a mediator, to assist them
in their attempts to resolve a dispute between
them regarding contractual or non-contractual
legal relations, without the mediator having the
power to impose a resolution of the dispute
(Şimşek, Bölten; 2017).
The peculiarity of mediation in resolving labour
conflicts is voluntary. Labour disputes are
resolved through negotiations with the
participation of a mediator/mediators between
the parties to the conflict in order to resolve the
dispute and make a joint decision.
Mediation can resolve labour disputes faster,
cheaper, and more efficiently, as negotiated
conflict resolution increases the likelihood of
continuing the employment relationship between
the parties (Colvin, 2004).
The role of a mediator is to create conditions for
dialogue, explore the real issues, and help create
and evaluate options for a fair outcome accepted
by both parties (Vezzulla, & Souza, 2004). The
mediator does not have the right to make
decisions on the conflict between the parties but
helps to find and reach a mutually acceptable and
voluntary solution (Zahorka, (s.f)).
Ukrainian scholars note that mediation,
according to European Union legislation, is
defined as “a structured process in which two or
more parties voluntarily try to reach an
agreement on a conflict that has arisen between
them with the participation of a mediator”
(Terekhov, 2019).
The main features of mediation in labour dispute
resolution are:
1) The existence of three subjects - two parties
to a labour dispute and a mediator who acts
as a neutral participant offering his/her
assistance in resolving the conflict (Lyakh,
2020).
2) The mediator's function is to help the parties
resolve the conflict on their own, not to act
as a judge. The mediator does not evaluate
evidence and does not make any decisions
(Stratiuk, 2019).
3) Flexibility and informal nature of the
mediation procedure.
4) The use of mediation in most cases of private
law disputes.
5) Voluntary participation in the process.
6) Most often, mediation is conducted in the
format of a personal meeting between the
parties to the dispute and the mediator.
3. Arbitration
Arbitration, whether binding or non-binding,
resembles jurisdictional dispute resolution in its
procedure, as the problem is resolved by a third
party, an arbitrator (Pedroso et al., 2002; Pedroso
et al., 2003). Arbitration or arbitration procedures
are one of the alternative ways to resolve labour
disputes, the essence of which is to submit the
conflict to a specially created body by the parties
to the conflict (Komarov et al, 2011). By their
legal nature, arbitration bodies are a kind of
extrajudicial entities established in accordance
with the current legislation to resolve labour
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disputes on behalf of the parties to the labour
dispute themselves (Burak, 2017). A
characteristic feature of arbitration, as well as
other alternative forms of labour dispute
resolution, is a voluntary process, according to
which neither party can be forced to reconcile
(Bondarenko, 2018).
4. Direct negotiations
Negotiations are a formalised process that “sets a
specific goal, defines a range of issues, and is
always implemented in specific conditions,
under specific circumstances. Negotiation is the
most effective and widespread way to resolve
disputes around the world” (Merrills, 2005).
D. Pruitt considers negotiation as “an attempt to
resolve a particular conflict of interest through
peaceful dialogue and discussion of the problem.
It is a specific form of social interaction and
decision-making that involves two or more
parties with conflicting interests and goals”
(1981).
(Bondarenko, 2018) believes that negotiation is
almost always present in some other alternative
form, and mediation is often used as a
preliminary procedure before the start of court
proceedings. Negotiations are often used in
mediation, mediation, arbitration, and even in
court itself (settlement of a dispute with the
participation of a judge) (Law of Ukraine
No. 1618-IV, 2004).
Results and discussion
The analysis of the literature allowed the author
to determine the effectiveness and availability of
alternative forms of labour dispute resolution.
The author identifies the main types of
alternative labour dispute resolution methods. At
the same time, in practice, the use of each type of
alternative forms of labour dispute resolution
differs from country to country. Therefore, in
order to assess the effectiveness of each form and
the possibility of its implementation and
widespread use in Ukraine, it is necessary to
analyse the international experience.
1. Reconciliation
A study of international experience has shown
that most EU member states have enshrined the
use of conciliation as a way of resolving labour
disputes in legislation.
One example is the Republic of Poland, where
the Labour Code (Chapter 12) provides for the
possibility of implementing a conciliation
procedure between the parties in the event of a
labour dispute (Labor Code of the Republic of
Poland, 1974). The reconciliation procedure in
Poland involves reconciliation commissions,
which begin their work after the employee files a
complaint. The statutory deadline for settling a
dispute is 14 days after the submission of the
relevant application. In some cases, provided for
by law, the deadline may be extended by 15 days.
The purpose of the conciliation commission is to
provide proposals to the parties to the conflict on
how to resolve it. The commission may terminate
its work if the parties fail to resolve the conflict
and refer the case to the court. The Republic of
Poland does not have a clear mechanism for
enforcing decisions made in the course of the
commission's work. If one party fails to comply
with the decision, the other party may go to court.
The conciliation procedure is similar in France,
where the Labour Law states that a labour dispute
may be subject to conciliation. Thus, Articles
2522-1 and 2522-13 (Labor Code, 2019) provide
for the possibility of conciliation in the event of
a labour dispute by involving special
commissions. French law defines the criteria of
reasonableness regarding the duration of
conciliation, but does not set a time limit for the
implementation of conciliation.
2. Mediation
The adoption of legislation by European
countries on the use of mediation in the
resolution of labour disputes was due to the
heavy burden on the judicial system. Therefore,
many countries have successfully introduced
mediation into the legal system as an alternative
way to resolve labour disputes. France was the
first country to adopt the relevant legislation.
Articles 2523-1 and 2523-10 of the French
Labour Code define the provisions on the use of
mediation in labour conflicts (Labor Code,
2019).
Another country in which mediation as a means
of resolving labour disputes is enshrined in law
is Bulgaria. Art. 3 of the Law on Mediation
(Bulgarian Law on Mediation, 2004) enshrines
the possibility of using mediation in resolving
labour disputes. Mediation is possible only with
the consent of the two parties to the conflict. The
peculiarities of using mediation in Bulgaria in
resolving labour disputes are as follows:
1) Possibility to engage several mediators.
2) Only an impartial person may be a mediator.
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3) During the mediation, the mediator
determines the subject matter of the dispute
and informs the parties to the conflict about
the consequences of certain actions aimed at
resolving the dispute.
4) If an agreement is reached, the parties sign
an agreement that is binding only on the
parties to the dispute.
5) The absence of clear ways in the legislation
to monitor the fulfilment of the terms of the
agreement concluded in case of agreement.
6) The mediation procedure may be terminated
in several cases: settlement of the dispute,
initiative of one or two parties to the conflict,
death of a party to the dispute.
7) If the parties to the conflict fail to reach an
agreement and six months have elapsed
since the start of mediation, the procedure
may be terminated (Terekhov, 2019).
The advantages of mediation, in comparison with
other alternative forms of labour dispute
resolution, are that it is the fastest and most
inexpensive way to resolve disputes, which can
be applied only with the mutual consent of the
parties and is conducted through negotiations
(Mazaraki, 2016).
(Hryn, 2022) notes that
the main feature of this procedure is its maximum
autonomy, confidentiality, and voluntariness,
because the decision as a result of conflict
resolution comes not from the mediator, but from
the parties to the conflict, and is set out in the
agreement of the parties to the dispute based on
the results of mediation. (p. 18).
3. Arbitration
The experience of France is interesting in terms
of applying the arbitration procedure in resolving
labour disputes, where the Labour Code provides
for the possibility of using arbitration if it is
stipulated in the employment contract. The
parties may choose an arbitrator by mutual
agreement and must provide access to all
documents necessary for the investigation in
order to resolve the conflict. The specificity of
the procedure is that the decisions made by the
arbitrator are binding on the parties. Therefore,
this procedure is efficient, effective, and prompt.
The main drawback of this procedure for
resolving a labour dispute is the high cost of
arbitration.
O. Terekh (2020) notes that “arbitration can be a
good alternative to litigation, which usually
requires significant time and effort on the part of
both parties to the dispute”. The scientist believes
that it is advisable to introduce such a procedure
for resolving labour disputes at the legislative
level in Ukraine.
4. Direct negotiations
Direct negotiations as a way to resolve labour
disputes have been enshrined in Bulgarian law
for quite some time. For example, the Labour
Code of the Republic of Bulgaria in 1987
enshrined the possibility of negotiations between
an employee and an employer in resolving labour
disputes. The fact that the parties have reached an
agreement is certified by a protocol, which has
the same legal force as the decision of the labour
dispute commission. If the management does not
make any decisions within seven days of
receiving a copy of the employee's application, it
is considered that the employee's claim is
rejected (Deineka, 2014).
UK legislation provides for direct negotiations as
the first mandatory stage of labour dispute
resolution. The purpose of direct negotiations is
to reach a mutually acceptable agreement
between the parties (Venediktov, 2017).
5. “Med-arb”
Considering various forms of labour dispute
resolution and the possibility of their application
in Ukraine, (Bondarenko, 2018) notes that “of all
the methods of alternative dispute resolution, the
most relevant for Ukraine are: negotiations,
mediation, and arbitration, as well as a number of
specific procedures, such as mediation”.
(Vasylyna & Hansetska, 2020) note that med-arb
combines two forms, namely mediation and
arbitration. This is a form of dispute resolution
with the help of an arbitrator, who, if the parties
fail to reach an agreement, is authorised to make
a binding decision in arbitration (France,
Germany, Sweden. (p. 18).
The use of mediation prior to arbitration allows
the parties to personally express their comments
and opinions on the possibilities of resolving the
dispute under the guidance of a mediator - an
experienced and qualified mediator. The
advantages of mediation are the flexibility of
forms and the effectiveness of labour dispute
resolution, which allows achieving the best
result, depending on the specifics of the conflict,
circumstances, and needs of the parties.
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Table 1.
Analysis of the specifics of alternative forms of labour dispute resolution.
№
A form of
alternative
dispute
resolution
Participants
of the
procedure
The end result
Features
Advantages
Disadvantages
1
Reconciliation
a) the
employer b) the
employee; c) the
Conciliation
Commission.
a) peaceful
resolution of the
conflict -
acceptance of the
proposals of the
conciliation
commission; b) if one party fails
to fulfil its
obligations, the
case may be
referred to court.
Depending on
the legislation of
a particular
country, time
limits for
reconciliation
may be set. If the
parties fail to
reach an
agreement within
the specified
period, the case
is referred to the
court.
a) participation of a
neutral party - a
conciliation
commission that
objectively assesses the
circumstances and
specifics of each
particular labour
dispute; b) an opportunity to
save money on
resolving labour
disputes without going
to court.
1) lack of
guaranteed
effectiveness
and resolution
of the labour
dispute; 2) the
possibility of
delaying the
dispute
resolution
process if no
time limits for
reconciliation
are set.
2
Mediation
a) the
employer b) the
employee; c)
mediator(s) -
professional
mediator.
a) settlement of the
dispute and signing
of the agreement; b) termination of
the dispute if one
or two parties to
the conflict initiate
the termination of
negotiations or if a
party to the dispute
dies; c) referral of the
case to court.
a) voluntary -
mutual
agreement of the
parties to start
negotiations; b) the mediator is
necessarily an
impartial party; c) the mediator
only suggests
ways to resolve
the conflict and
does not
pronounce a
verdict.
a) effectiveness b) efficiency; c) material profitability; d) flexibility and
informality of the
negotiation process.
a) there is no
control over the
fulfilment of the
terms of the
agreement in
the event of a
labour dispute; b) can be used
only by mutual
agreement of
the parties.
3
Direct
negotiations
a) the
employer; b) the
employee.
a) reaching an
agreement between
the parties to
resolve the labour
dispute; b) in case of failure
to reach an
agreement, several
options are
possible: - application of
another type of
alternative form of
labour dispute
resolution; - referral of the
case to court.
a) can be used as
the first stage of
labour dispute
resolution; b) does not
involve third
parties.
a) material efficiency; b) the ability to resolve
the conflict without
involving other persons
and to ensure the
confidentiality of the
case.
a) lack of an
objective view
of the case by
an impartial
person; b) lack of
guarantees of
resolution of the
case.
4
Arbitration
a) the
employer b) the
employee c) arbitrator.
a) the arbitrator
makes an award
that is binding on
the parties.
a) formality of
the procedure; b) binding nature
of the decisions
made by the
arbitrator.
a) promptness of case
resolution; b) efficiency.
a) high cost of
the procedure.
5
arb-Med
a) the
employer b) the
employee c) an
intermediary
arbitrator.
a) decision-making
by an intermediary
arbitrator.
a) combination
of two alternative
forms of labour
dispute
resolution; b) mandatory
fulfilment of the
conditions set by
the arbitrator for
resolving the
dispute.
a) efficiency and
effectiveness; b) efficiency c) guarantee of
fulfilment of the terms
of dispute resolution.
a) high cost of
the procedure.
(developed by the authors)
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An analysis of international experience in the use
of alternative forms of labour dispute resolution
has made it possible to determine their
effectiveness, financial efficiency, and
promptness, as compared to the resolution of
labour conflicts in court.
Each of the alternative forms of labor dispute
resolution is characterized by advantages and
disadvantages that determine the effectiveness
and feasibility of using this particular type in a
particular situation.
For example, conciliation, arbitration, mediation,
and med-arb procedures for resolving labor
disputes require the involvement of special
commissions/outsiders (mediators), which may
result in a delayed conflict resolution process. At
the same time, the objectivity of the result may
be increased.
Direct negotiations between the parties in
resolving labor disputes do not require the
involvement of third parties, but this may
negatively affect the objectivity of the conflict
resolution and the duration of the negotiations.
The duration of resolving a labor dispute through
the use of alternative forms depends on many
factors, including the availability of certain time
limits, the parties' interest in resolving the
dispute, and the availability of established rules
and stages of the conflict resolution procedure.
The cost of using alternative forms of labor
dispute resolution is determined by the need to
engage third-party specialists (arbitrators,
mediators, conciliation commissions).
However, in Ukraine, the practice of using
alternative means of resolving labour disputes is
not widespread. This is due to gaps in the
legislation, low public awareness of the
possibilities of using alternative forms of labour
dispute resolution, and unwillingness to use
“peaceful” methods of conflict resolution.
With regard to Ukrainian legislation, it should be
noted that in 2019 Ukraine signed the UN
Convention on International Agreements to
Settle Disputes through Mediation. United
Nations (2019).. Subsequently, in November
2021, the government adopted the Law on
Mediation No. 1875-IX (2021). According to
Ukrainian law, mediation is “an out-of-court
voluntary, confidential, structured procedure in
which the parties, with the help of a mediator
(mediators), try to prevent or resolve a conflict
(dispute) through negotiations” (Law on
Mediation No. 1875-IX, 2021).
At the same time, mediation is currently not a
popular form of labour dispute resolution in
Ukraine, unlike in European countries. The
reasons for this situation are as follows:
1) The adoption of a law does not mean its
successful functioning. It is still important to
comprehensively refine the legislative
mechanism of legal regulation and introduce
the necessary legislative changes that will
take into account the specifics of modern
labour relations.
2) Low level of public awareness of the
possibilities and benefits of using mediation
as an alternative form of labour dispute
resolution. The lack of awareness of citizens
contributes to prejudices and stereotypes
about the legal approaches of this form of
conflict resolution, which leads to reluctance
to use it. Therefore, it is important to raise
public awareness of the benefits and
effectiveness of mediation as a legal
institution through an information policy
aimed at shaping a positive attitude towards
mediation.
3) Currently, there is a lack of qualified
mediators in Ukraine, so it is particularly
important to promote the training of
mediators. In this regard, it is advisable to
involve higher education institutions and
professional associations of mediators “in
the educational process of training
mediators, establishing standards for
training mediators, creating appropriate
centres for training mediators and their
accreditation” (Melnyk, 2022).
Therefore, it is important to improve legislation
in terms of using alternative forms of labour
dispute resolution and introducing mandatory
pre-trial settlement of labour disputes. This issue
should be addressed comprehensively and
systematically. The following measures are
advisable to introduce the use of alternative
forms of labour dispute resolution:
1) Amendments to the Labour Code of Ukraine
and laws regulating the labour dispute
resolution procedure, taking into account the
current reality in Ukrainian society.
2) Conducting an information policy to raise
public awareness of the possibilities of using
such alternative forms of dispute resolution
as mediation, conciliation, direct
negotiations, and arbitration.
3) Promote professional training of arbitrators,
mediators, and other specialists. In this
regard, it is important to establish standards
for training specialists, create special centres
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for training and professional development,
and involve higher education institutions in
the training of such specialists.
4) Adopting the experience of countries that
actively use alternative forms of labour
dispute resolution.
Such a comprehensive approach to the
introduction of alternative forms of labor dispute
resolution in Ukraine will reduce the material and
time costs of labor dispute resolution, reduce the
burden on the judicial system, and increase the
effectiveness of conflict resolution.
At the legislative level, it is advisable to establish
the mandatory application of alternative forms of
labor conflict resolution, which will allow to
spread the practice of their use. In addition, it is
important to set maximum time limits for the
procedure to ensure that the labor dispute
resolution process is not delayed by one of the
parties.
When assessing the feasibility of introducing
certain alternative forms of labor dispute
resolution, it is important to pay attention to the
cost of the procedure. It is determined that the
main disadvantage of arbitration and mediation is
the high cost of the procedure. Therefore, the
possibility of implementing these forms of labor
dispute resolution in Ukraine in the current
conditions is quite limited.
Currently, Ukraine has introduced legislation on
the use of mediation in resolving labor disputes,
which may be due to the lower cost of the
procedure and the popularity of its use in other
countries.
At the same time, conciliation and direct
negotiations are not currently used in the practice
of resolving labor disputes in Ukraine. It is
advisable to pay attention to these alternative
forms of resolving labor conflicts and introduce
them into Ukrainian practice.
The possibility of using several alternative forms
of resolving labor conflicts will allow for
choosing the most appropriate type (e.g.,
mediation, direct negotiations, or conciliation),
depending on the situation.
Conclusion
The protection of the human right to work and
the peaceful settlement of labour disputes are
pressing issues that the international community
is focused on. The urgency of these issues is
caused by the consequences of the COVID-19
pandemic, economic crises, changes in labour
organisation, and the impact of sociocultural
changes on labour relations. Previously, labour
disputes were most often resolved through court
proceedings, but now alternative forms of dispute
resolution are gaining popularity globally as an
effective tool for resolving conflicts in the field
of labour. However, this practice is not widely
used in Ukraine today. Therefore, it is advisable
to define the specifics of alternative forms of
labour conflict resolution and analyse the
international practice of their application. The
purpose of the article is to determine the effective
alternative forms of labour dispute resolution
based on the analysis of theoretical information
and practical experience of their application in
the modern world and the possibility of their use
in Ukraine.
The author defines the concept of labour disputes
as disagreements between labour law entities on
the application of labour legislation or the
establishment of new working conditions,
submitted to a jurisdictional or non-jurisdictional
body for consideration with a view to their
settlement. Labour disputes may be resolved in
court or out of court. The need to use alternative
mechanisms for resolving labour disputes is due
to the heavy workload of the judiciary and the
lengthy period of time required for a case to be
considered in court. Alternative forms of labour
dispute resolution are the mechanisms for
resolving labour conflicts outside of court
proceedings.
The author examines the specifics of the main
alternative forms of labour dispute resolution:
conciliation, direct negotiations, mediation,
arbitration, and mediation. The author analyses
the international experience of using alternative
forms of labour dispute resolution on the
example of France, Bulgaria, Poland, and the
United Kingdom. The author identifies the main
advantages of using alternative mechanisms for
resolving labour disputes in comparison with the
judicial procedure: promptness of conflict
resolution, efficiency, and economic
profitability.
The reasons why alternative forms of labour
dispute resolution are not widespread in Ukraine
are specified:
1) Absence of legislative regulation or failure
to finalise legislation on the legal regulation
of conflict resolution in the field of labour
relations.
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2) Low level of public awareness of the
benefits and possibilities of using alternative
forms of labour dispute resolution.
3) Lack of qualified specialists (arbitrators,
mediators).
Effective implementation and promotion of the
use of alternative forms of labour dispute
resolution in Ukraine is possible through the
implementation of the following measures:
1) Reforming the Labour Code of Ukraine and
laws aimed at resolving labour disputes.
2) Implementation of an information policy on
the possibilities of using alternative forms of
labour dispute resolution to raise public
awareness.
3) Professional training of specialists
(arbitrators, mediators, and other
professionals) by involving higher education
institutions, establishing standards for
training specialists, creating special training
and professional development centres.
4) Adopting successful international
experience.
The implementation of these measures will allow
for the widespread use of alternative forms of
labour dispute resolution in Ukraine, which will
reduce the burden on the judicial system, speed
up the process of resolving labour conflicts and
increase the effectiveness of resolving labour
conflicts.
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