When an employment dispute arises, litigation is the last resort. The lawyers at Bretton Woods Law can provide crucial legal, strategic and tactical advice aimed at resolving disputes before litigation becomes necessary. Our assistance can take a number of forms, whether through the provision of legal advice as to the merits of bringing a case, the drafting of Letters Before Action, mediation or negotiation with a view to achieving mutually agreed termination of the contract of employment.
Mediation is a flexible and informal process conducted confidentially in which a neutral person – the Mediator – actively assists the international civil servant and the international organisation for which he or she works (“the Parties”) in working towards a negotiated agreement of the employment dispute, with the Parties in ultimate control of the decision to settle and the terms of resolution.
Mediation is playing an ever-increasing role in the internal justice systems operated by many international organisations, such as the Asian Development Bank, where it is termed Compulsory Conciliation, the European Bank for Reconstruction and Development and the World Bank Group. A good example of the widening use of mediation can be found at the Inter-American Development Bank (“IDB”) based in Washington DC. On 1st April 2013, the IDB adopted and implemented a new internal justice system (PE-323) that controversially replaced its Conciliation Committee, which was for many years the IDB’s first-tier fact finding body or ‘court-of-first instance,’ with compulsory or Formal Mediation. IDB employees are now compelled by the Bank’s internal law to use mediation to attempt to resolve their employment disputes before they are permitted to have the merits of their respective cases aired before judges of the IDB Administrative Tribunal.
Members of Bretton Woods Law regularly represent parties in mediation proceedings. Further, we have also represented groups of international civil servants within international organisations. In complex mediations such as these, both parties are usually legally represented. Alex Haines, for example, has represented 10 Country Offices of a large Multilateral Development Bank based in Washington DC in formal mediation proceedings in English and Spanish.
Acting as Mediators
Lee Marler and Neil Macaulay, the two Lead Counsel at Bretton Woods Law, are known experts in international organisations law and in particular International Administrative Law (“IAL”), which is the employment law of the international organisations. What is more, Lee and Neil are CEDR trained and accredited mediators who have the ability to broker settlement agreements in the most difficult and challenging of circumstances. Although a school of thought exists that mediators do not need to have expert knowledge or subject matter expertise, it of course assists greatly if they do. This is where Lee and Neil have the distinct advantage over so many other mediators, for they do have the necessary International Administrative Law expertise and experience and it is this skill-set that enables them to mediate successfully the most complex of international employment disputes faced by the parties.
Arbitration of Contractual Disputes
Arbitration is the determination of a dispute in private by the decision of one or more persons called arbitrators. Many, if not all commercial contracts entered into by international organisations contain a clause by which the parties to the contract agree, in the event of a dispute between them, that the dispute will not be litigated before courts or tribunals, but referred instead to arbitration. Arbitration is a legally effective and formal adjudication of a dispute otherwise than by recourse to the ordinary procedure of the courts. The international organisation and the entity or person that it has entered into a contractual relationship with (“the Parties”) choose the arbitrator, who is normally a specialist in the relevant field. The arbitrator is required to act in a judicial manner and his decision is called an award. The award is made according to the relevant law, is binding and is not normally subject to appeal.
Lee and Neil will not only act as mediators in the international organisations around the world, but, as the two Lead Bretton Woods Law counsel, they will, if called upon to do so, act also as arbitrators or, alternatively, as counsel for the parties. Once again, the advantage that Lee and Neil have over so many other lawyers is that they are experts in and practitioners of international organisations law, such that they know and understand the rights and duties of international organisations; they understand the extent of the immunities of such organisations and the idiosyncrasies of contracting with them. Lee and Neil have the ability to comprehend the underlying facts of the dispute, however complex they may be, and place them in their true international context. If acting as arbitrators, they will impose upon the Parties a suitable and appropriate award, or, if acting as counsel, ensure as far as possible that their clients receive a just and equitable outcome.