Pourquoi la conciliation volontaire n'est-elle pas plus efficace que la conciliation obligatoire ? L'adaptation inattendue des parties

Résumé

Les auteurs tentent, à partir des résultats d'une recherche présentés dans un article récent de la revue, d'expliquer pourquoi la conciliation volontaire n'est pas plus efficace que la conciliation obligatoire. La comparaison des objectifs, des comportements et des tactiques adoptés par les parties dans chacun des régimes fait ressortir des conclusions inattendues. Parmi celles-ci, les deux plus surprenantes sont les suivantes. Tout d'abord le changement de régime légal exerce une influence sur le comportement des parties non pas durant le processus mais au moment de son enclenchement. Ensuite il a engendré certains effets contre-productifs sur l'efficacité du processus par rapport au but visé par le législateur.

Abstract

This article seeks to compare the efficiency of the compulsory and voluntary conciliation systems in Quebec. As opposed to other studies of this subject, the approach involves a direct comparison of the two systems in the broad context of the same jurisdiction. Moreover, from a methodological standpoint, the present study is supported by important data of both a quantitative and qualitative nature. Analysis of 3500 conciliation records was carried out, and statements were gathered from more than 300 management and union spokespersons and from 16 conciliators with extensive knowledge and experience of the conciliation procedure. The research, which was conducted over a period of more than 15 years, leads to an unusual conclusion : unlike most of the studies that find greater efficiency of one or the other conciliation system, our results show that both systems appear similar in terms of efficiency.

The role of the conciliator during the conciliation process has been extensively documented. The present article, however, focuses on the parties themselves. In spite of the importance of the conciliator, it is actually the parties who have the last word as to the outcome of the conciliation process. The research results demonstrate the appropriateness of this approach. In reality, the strategy, attitudes and tactics of the parties influence the efficiency of conciliation much more so than do their objectives. Indeed, it was shown that a change in the legal framework of conciliation had no influence whatsoever on a number of variables (4 out of 11) that are significantly related to the efficiency of the conciliation process. As for the seven other efficiency-related variables affected by the system change, the effect was to reduce the efficiency of conciliation in all cases except one.

These results provide a partial explanation for the minimal impact of a change in the legal framework on the efficiency of conciliation. Surprisingly, it appears that on a general level, in adapting themselves to the new system, the parties have (consciously or not) carried on the status quo concerning the effectiveness of the procedure. In so doing, they have managed to avoid modifying one aspect of the balance of power prevalling between them. The research also shows that the effect of the legal framework was felt mainly at the level of the original data with which the parties (employer, union, conciliator) had to deal during the conciliation.

Moreover, the transition to a voluntary conciliation system has not significantly changed the attitudes of the parties during the process, at least concerning those variables with an important impact on the efficiency of conciliation.

Consequently, it appears that a change in the legal framework does not constitute an effective tool for modifying the behaviour of the parties during the conciliation process, either to reinforce positive behaviour or to alleviate or eliminate a less positive attitude toward the outcome of conciliation. It follows that the legal framework indeed has some influence on the conciliation process, although the effect is somewhat limited and does not always operate in the direction intended.