Mediation a Panacea for the Ills of Workplace Dispute Resolution

Mediation – a panacea for the ills of workplace dispute resolution? A comprehensive review of the literature examining workplace mediation.

iRowe Research Paper No. 1

Lisa Banks

Richard Saundry

Abstract

In the wake of the Gibbons Review into the UK system of dispute resolution, workplace mediation has assumed increased prominence. However, in the UK to date, there has been little academic research into mediation. This paper provides a comprehensive review of the international mediation literature in order to assess the potential of workplace mediation to combat the problem of individual employment conflict. The paper argues that there are significant obstacles to widespread adoption of workplace mediation in the UK. In addition the paper highlights key conceptual concerns and sets out a clear agenda for future research.

1

Introduction

Workplace dispute resolution has become a central focus in the UK for both policy-makers and employers in light of the rising cost of individual employment conflict, most recently estimated at £410mn annually (Gibbons, 2007:7). Traditional approaches to this problem have focussed on the use of formal grievance and disciplinary processes, reinforced in 2004, by the introduction of minimum statutory dismissal and grievance procedures under the Employment Act 2002 (Dispute Resolution Regulations).

However, in 2007, the Gibbons Review, asked by the government to ‘identify options for simplifying and improving all aspects of employment dispute resolution’ (Gibbons, 2007: 7) recommended the repeal of the statutory dispute resolution procedures and promoted a more informal and flexible approach to grievance and discipline. It placed significant emphasis on the need for employers and other stakeholders to engage with alternative methods of dispute resolution (ADR). In particular, it argued that mediation was ‘a pragmatic, flexible and informal way of providing both parties with positive outcomes’ and therefore urged the government to ‘Challenge all employer and employee organisations to commit to implementing and promoting early dispute resolution.’

The government largely adopted Gibbons’ proposals but stopped short of introducing legislation to promote mediation. Instead they accepted the need to encourage the greater use of workplace mediation to facilitate the early resolution of individual employment disputes and so reduce disruption to workplaces, individual careers and ‘burdens on the resources of all concerned – employers, employees and the state’ (Gibbons, 2007:5).

With some notable exceptions (Corby, 1999; Harris, 2008), there has been relatively little academic investigation into workplace mediation in the UK. There is a larger international literature, mostly emanating from the USA, but even here, the majority relates to court-mandated mediations and involves practitioners from many different professions (Antes and Paranica, 2009). This paper provides, for the first time, a comprehensive review of this diverse literature to examine the potential of workplace mediation in the UK and to address a number of key questions: what is workplace mediation and what are its perceived benefits? What factors shape the effectiveness of mediation? To what extent does mediation offer a way to significantly reduce the impact of individual employment disputes on employers, employees and the state? Does the existing literature provide an adequate conceptual framework for the analysis of workplace mediation?

The paper is structured as follows: Firstly, we examine definitions of mediation and the different styles that have been adopted. We then examine the perceived benefits and limitations of workplace mediation. In particular we highlight some of the difficulties associated with evaluating the success of mediation initiatives. Finally, we review how the organisational context and the different approaches and characteristics of management and mediators shape the mediation process.

What is Mediation?

While, there is no universally agreed definition or general theory of mediation (Singh, 1986; Bellman, 1998), Moore (2003:15) argues that mediation is:

‘the intervention in a negotiation or a conflict of an acceptable third party who has limited or no authoritative decision-making power, who assists the involved parties to voluntarily reach a mutually acceptable settlement of the issues in dispute’.

However when applied within a workplace setting, this approach is somewhat prescriptive, suggesting a linear model of dispute resolution. This underplays the complexity of mediation, the impact of contextual factors (Jones and Bodtker, 2001; Bowling and Hoffman, 2003; Kressel 2007) and power relations between stakeholders (Karambayya et al. 1992; Brett et al. 1996; Tillett, 1999; Seargeant, 2005; Wiseman and Poitras, 2002). Nonetheless, there is a growing recognition of the context specificity of mediation approaches (Bush and Folger, 2005), the mediation process and mediator performance (Mareschal 2002a, 2002b; Barrett, 1999). Consequently it is possible to identify a number of different mediation ‘styles’.

Most workplace mediators adopt a problem-solving approach (Anderson and Bingham, 1997) which itself can be divided into three sub-styles: evaluative, facilitative and strategic. The evaluative style has its roots in labour management disputes and occurs most frequently in the legal arena where disputants are in conflict over a single issue. Mediators are proactive and ensure that participants are realistic about their relative bargaining positions. In contrast, facilitative mediation has a strong future focus, encouraging the recognition of needs and interests in an attempt to identify areas for agreement (Alberts et al., 2005). Seargeant (2005) argues that this approach is highly effective for finding workplace solutions, but stresses that the focus is on enabling participants to work together in the future rather than resolving personality-based issues. However, critics suggest that facilitative mediation fails to focus sufficient attention on the underlying issues that lead to conflict (Kressel, 2007). Consequently, Kressel proposes an alternative ‘strategic’ style of mediation where the mediator drives the problem solving in an ‘empathic, but decidedly directive [and] non-neutral’ manner (Kressel 2007:69) in order to unearth the latent causes of conflict.

The dominant problem-solving paradigm has become increasingly challenged by relational approaches and in particular transformational mediation (Bush, 2001,Hallberlin, 2001). Here, the mediator allows the parties to determine which issues are discussed (Della Noce, 2004); settlement is not the focus, but may be a by-product (Bingham and Novac, 2001). The approach identifies that individuals, de-stabilised by conflict, can be helped to restore their self- confidence and responsiveness to others. Alternatively, ‘narrative mediation’ (Winslade and Monk, 2000) attempts to refocus the conflict story and construct ‘a respectful and equitable relational context that can serve as the basis of an ongoing relationship’ (Winslade, 2006:511).

In a workplace context, relational approaches could be criticised for underplaying the importance of ending the conflict in the short-term. Indeed, McDermott et al (2001:18) found that US Equal Employment Opportunity Commission (EEOC) mediators rarely use transformative techniques because of the ‘need for a solution in order to avert an investigation’. At present, research suggests that the facilitative style is practised most frequently in the workplace (Hermann et al., 2003; Seargeant, 2005; Fox, 2005; Mareschal 2005). However no dominant methodology has emerged and one of the largest workplace schemes (US Postal Service) utilises a transformative style (Bingham, 2004).

It could be argued that imposing clear distinctions between mediation styles fails to reflect the fact that mediators may use a range of different approaches within a single mediation (Riskin, 2003:32). Furthermore, it provides an essentially static conception of mediation that underplays the extent to which mediation is shaped by the dynamic interplay between the parties, the mediator and the mediation context (Picard, 2004).

Benefits of workplace mediation – evaluating success

A key concern of this paper is whether an extension of mediation in the UK can facilitate dispute resolution and so reduce the burdens placed on employers, employees and the state (Gibbons, 2007). Although limited, the extant evidence from the UK paints a largely positive picture. Seargeant’s (2005) evaluation of mediation in small firms found an immediate improvement in working relations in twelve out of thirteen cases examined. Three of these sustained all these improvements, while eight maintained some improvement. A 2007 survey conducted by the Chartered Institute for Personnel and Development (CIPD, 2007) found that organisations that provided mediation training were subject to lower levels of employment tribunal cases than those that did not. A further survey in 2008 (CIPD, 2008) claimed ‘strong support from employers for the use of workplace mediation’ with respondents citing a range of positive impacts in addition to helping to resolve disputes. These included: avoidance of the stress of formal procedure and the development of organisational culture. However, the most widely cited benefit was improvements in employee relationships, perhaps pointing to the broader impact of mediation.

Evidence from the USA also highlights the positive impact of workplace mediation. McDermott et al’s (2000) study of the US EEOC found that in 59% of cases the parties were satisfied with the outcome, 85% were satisfied with the fairness of the process and over 90% would use mediation again. Bingham et al’s study (2000, 2002) of the US Postal System which uses transformative mediation, revealed a 60% - 70% satisfaction rate for outcome and over 90% satisfaction with the fairness of the process, accompanied by a 17% drop in formal complaints.

There are also suggestions that mediation has clear benefits compared to ‘standard’ grievance and disciplinary procedures. Two useful quantitative examples include Anderson and Bingham (1997) who found that 66% of employees and 92% of supervisors thought mediation was more effective than traditional processes and Corby’s (1999) comparison of New Zealand (where mediation was widely used) and the UK, which suggested that the use of meditation in New Zealand had resulted in fewer cases being referred to formal tribunal hearings. Reynolds (2000:169) argues that ‘grievance and disciplinary hearings concentrate on deciding the degree to which people are right or wrong, so communication rarely gets discussed’. In contrast, mediation provides the parties with the power and space to find a mutually agreeable solution (Pope, 1996; Hebert, 1999). In addition it is argued that mediation provides significant financial savings compared with (often lengthy) traditional procedures (Kressel, 2006; Goldberg, 2005) as sessions can often be organised more quickly, restoring the employment relationship more swiftly and reducing the number of cases that reach litigation (Bingham and Pitts, 2002; CIPD, 2007).

From a participant perspective, the literature suggests that mediation provides an opportunity for individuals with an issue that falls outside formal procedures to access an avenue of resolution previously closed to them (CIPD 2004, Montoya, 1998). It also provides an alternative approach for staff wishing to progress a grievance in a less confrontational manner (Fox, 2005), perhaps encouraging employees who would normally avoid conflict (Barsky and Wood, 2005) and even leave their job (Berggren, 2006) to broach their concerns. Mediation also provides individuals with the opportunity to have ‘their day in court’, whilst allowing them to vent their emotions in a safer and less stressful environment (Singletary et al, 1995; Karambayya et al., 1992; Sulzner, 2003; Mareschal, 2005; Wall et al. 2001; Corby, 1999). Shapiro and Brett, (1993) argue that participants find mediation more satisfying than traditional methods and are thus more likely to uphold any agreement reached while Seargeant (2005:27) builds on this, arguing that a mediator’s ability to break down the disagreement into small segments helps disputants feel less intimidated and more able to manage the process.

At a broader level, the introduction of internal mediation schemes may have useful indirect ‘upstream’ effects. For example, training line managers in conflict handling approaches may be beneficial, not least because managers are sometimes the cause of conflict (Hogan et al, 1994) or fail to manage it effectively (CIPD, 2007). The literature suggests that managers trained in this capacity improve their conflict handling skills (Wiseman and Poitras, 2002, Bingham 2003, 2004), their reputation (Reynolds 2000), team morale (Fox 2005), and even gain ‘knowledge or resources that can greatly expand the opportunities for creative problem solving’ (Kressell, 2006:747). In this way the provision of mediation skills may allow for early dispute resolution without the need for formal mediation.

However, there are clear difficulties with assessing the benefits of mediation. Firstly, measuring success in terms of dispute settlement is too simplistic (Greig, 2005). For example, partial settlements in complex cases can have long-lasting organisational benefits (Fox, 2005). Instead, Mareschal (2005) argues that mediation success should be viewed as a continuum measured against factors such as reaching agreement and narrowing the number of issues in dispute, whilst Hoskins and Stoltz (2003:347) contend that as change often occurs in the months following the mediation, mediators should view agreement as a step ‘along a path of development’. Importantly transformative mediation measures success not in terms of settlement but the parties’ level of participation and recognition of each other, (Bush 2001; Bingham, 2003). Thus meaningful comparisons between studies of mediation are problematic and data needs to be treated with caution. This difficulty in evaluating success rates is compounded by a number of key factors. Firstly, participants’ expectations, understanding and attitude towards mediation will influence the nature of, and satisfaction with the eventual, outcome (Fox, 2005; Silberman, 1989; McDermott et al., 2000) Secondly, in workplace mediation, the mediator normally has the final decision as to whether a case is suitable for mediation. Consequently, mediation takes place when it is most likely to be successful (Greig 2005). For example Wood and Leon’s (2006) case study identifies fifty-four cases that were referred to mediation, only thirty-six were mediated and of these thirty-one were settled.

Secondly, comparing the effectiveness of mediation with that of more traditional dispute resolution processes is problematic (Mahony and Klass, 2008) as participants are unlikely to have experienced mediation and grievance processes simultaneously. Furthermore, mediation may not be appropriate for all individual disputes. For example, managers may be sceptical about offering mediation in disciplinary cases (CIPD, 2008). It is a widely held view that it is unsuitable in cases involving overt bullying, harassment and other situations where formal sanctions should be used (Bellman 1998, La Rue, 2000). Indeed, Mareschal (2002a:1262) argues that ‘victims of discrimination should not have to ‘negotiate’ for the enforcement of civil rights granted by law’. However, others have argued that early mediation may be useful in resolving disputes that would otherwise develop into cases where formal sanctions would be unavoidable by highlighting the ‘unconscious and subtle discrimination or ‘micro-inequities’ often serve as the basis for many, if not most, claims of workplace discrimination’ (Stallworth, 2001:37). Indeed, Miller (2001:2) argues that ‘mediation is a particularly well suited process for resolving disability employment issues’, whilst Bond (1997) encourages organisations to use mediation for sexual harassment disputes.

It is also important to acknowledge that mediation is not without its dangers, particularly where issues of power are concerned (Van Gramberg, 2006). Mediation research tends to focus on power asymmetries within the process and particularly between disputants resulting from differences in grade or communication skills (Tillett, 1999). In such cases, the stronger party may simply refuse to participate (Wiseman and Poitras, 2002) or the weaker party may feel too intimidated to contribute. Agusti-Panareda (2004) argues that mediation should not be ruled out in such instances, as the process protects the disputants. Moreover, Gewurz (2001) contends that it may possible to moderate mediation style in order to address power imbalances. However, the literature tends to neglect power relations between employer and employee. Mediation, after all, is a management process, and, from a radical perspective, may be seen as a means of controlling dissent. As Sherman (2003) argues, mediators cannot change the fundamental power relationship that exists between parties, nor can they protect the weaker party outside the mediation session. Those power relations are inevitably underpinned by the organisational context within which mediation takes place and are also reflected in the way in which managers interact with the mediation process. It is to this that we now turn.

Shaping the Mediation Process

The use and effectiveness of mediation in facilitating the early resolution of disputes inevitably depends on a range of factors. These include: organisational characteristics and management style; the characteristics of mediators; and the design of mediation processes.

i) Organisational characteristics and management style

It has been clearly established that the use of traditional procedures for dealing with employee grievances and disciplinary issues is closely related to a range of contextual variables including workplace size and sector (Knight and Latreille, 2000; Antcliff and Saundry, 2009). Larger organisations, particularly those in the public sector are more likely to have extensive procedures for dealing with individual conflict. There is some evidence that this extends to mediation. Surveys conducted by the CIPD (2007; 2008) suggest that public sector organisations make greater use of mediation than private sector counterparts. Furthermore 53% of public sector organisations train employees in mediation skills compared to an average of 30%. Size of workplace and organisation may also be significant. Certainly, while there is evidence of enthusiasm for mediation amongst small and medium sized enterprises (SMEs) this is not reflected in its use. An Acas survey of UK SMEs in 2008 (Johnston, 2008) found that whereas three-quarters of respondents thought that it sounded like a good tool for resolving disputes, only seven per cent had used it and half of these had not used mediation in the last 12 months. Most managers surveyed believed that mediation was ‘only suited to large organisations’. Internal mediation in SMEs may be difficult given the personal nature of employment relations, however, the use of external mediators involves a cost that some employers would baulk at (Harris et al., 2008). The potential difficulty of extending mediation into smaller workplaces is a crucial issue given the faith placed by Gibbons in transforming workplace dispute resolution.

Irrespective of size and sector, the attitude of members of an organisation to conflict may affect its responsiveness to mediation. Organisational conflict is often portrayed as an ‘emotion-free zone’ (Jones and Bodtker, 2001:83) and thus managers may dismiss emotional reactions to conflict as a sign of weakness (Schreier 2002). In this context, mediation may be recast as a form of control, a way to avoid formal proceedings or a way to evade people management responsibilities (Seargeant, 2004). In contrast, organisations that acknowledge the link between conflict, employee behaviour and work outcomes (Suliman and Abdulla, 2005) may identify more readily with mediation as a way of resolving disputes.