Towards mediation: developing a theoretical framework to understand alternative dispute resolution

Paper to: British Academy of Management, 14th-16th September
2010, Sheffield University Dr Rory Ridley-Duff and Dr Anthony Bennett Sheffield Business School, Sheffield Hallam University

Full Paper Available: http://shura.shu.ac.uk/2617/
Corresponding author: r.ridley-duff@shu.ac.uk

Introduction
• Why this paper? • Defining and contextualising ADR • The implications of findings from existing research

• A theoretical framework for future research (and teaching)

History of the paper
• Mediation short course (2007) at SHU
– Background paper written by Rory Ridley-Duff for workshop participants.

• Paper to support teaching (2008)
– Updated for M-Level Employee Relations module after Dr Anthony Bennett becomes an accredited ACAS mediator.

• Development as a journal paper (2009)
– Journal paper co-authored: now in second round of peerreview.

Context of interest in ADR
• Employment Act 2002 (Dispute Resolutions) 2004 Regulations
– Introduced statutory discipline and grievance procedures. – Employment tribunals rose 45% in next 4 years.
– Gibbons Report (2007) recommended repeal of the statutory regulations and a new emphasis on mediation.

– Statutory D&G procedures were repealed in 2009.
– Mediation guidance issued by the CIPD / ACAS.

Perspectives on conflict
• Dominant view
– "[Conflict is] a process that begins when one party perceives that another party has negatively affected, or is about to negatively affect, something the first party cares about."
– Huczynski and Buchanan (2007: 764)

• Deeper levels of conflict
• Attitudes to the possibility of aligning interests (Fox, 1985) • The application of hegemonic power (Lukes, 1974) • Individual and collective approaches to resistance (Blyton and Turnbull, 2004)

Perspectives on conflict
Ideology Lukes (1974) on power Fox (1985) on conflict
Conflict is irrational: Due to poor communication by managers, or deviant / subversive behaviour by employees.
Conflict is rational: Group interests diverge. Institutions and procedures are needed to manage, and mitigate the effects of, conflict. Conflict is creative: Symptom of contradictions in a social system. Precursor to transformative change.

Unitarist

Hegemonic power: Institutions, management processes and outcome evaluation are under management control.
Agenda setting power: Managers control the organisational agenda. Proposals and decisions (but not management control) can be challenged. Open conflict: Management control / power negotiated in democratic institutions charged with ensuring equitable distributions of power.

Pluralist

Radical

Distinguishing types of ADR
• Arbitration
– Third party hears arguments and make a decision that is binding on the parties (ACAS, 2008).

• Conciliation
– Third party intervenes to negotiate a 'compromise' agreement (ACAS, 2006).

• Mediation
– Third party facilitates negotiations between the parties and develops their conflict resolution skills (Liebmann, 2000).

Distinguishing approaches to mediation
• UK Approaches
– Directive - mediator makes non-binding recommendations. – Facilitative - mediator controls resolution process, while the disputing parties control the outcome(s) (ACAS, 2005).

• US Approaches
– Problem-solving: task/problem focus, resolution through understanding the problem. – Transformative: relationship focus to explore disputants' motives and feelings to develop communication skills (Bush and Folger, 1994; Mareshcal, 2003).

Distinguishing approaches to mediation
• UK (ACAS)
– Oriented towards the 'facilitative' approach
• mediator controls process. • disputing parties control outcomes/agreements.
ACAS (2008b)

• US (Postal Service / Public Sector)
– Oriented towards the 'transformative' approach.
• mediator helps parties establish a process. • mediator facilitates disputants communication skills.
Bingham and Pitts (2002)

Existing research findings
• USPS REDRESS Programme
– Disputants control who represents them (and supports those wishing to represent themselves). – High satisfaction levels on procedural justice (91% with internal mediator, 96% with external mediator) – High satisfaction with outcomes (74% with internal mediators, 80% with external)

– Tribunal claims dropped from 14,000 to 10,000 in USPS in the first 2 years of the scheme. – But…failed to compare satisfaction levels with those achieved through court hearings / adversarial processes.
– Bingham and Pitts (2002)

Existing research findings
• UK ACAS Research
– Mediation is seen as potentially useful by 'a large majority' but rarely used (only 7% of SME respondents) – 43% of 'large' organisations had used mediation between one and five times in the previous year. – Not just an early resolution measure - it helped in intractable disputes that could not be resolved in other ways.

– Still a lack of large scale research, not least because take up and usage is low.
Acas (2005, 2008b)

Theory Development
• Authority driven approach (D&G)
– Evaluation of 'facts' against a normative framework of 'rights'. – Process adopts rationalist philosophical assumptions in an evaluation of the integrity of a management system. – Encourages an adversarial response (Huang, 2006).

• Experience driven approach (ADR)
– Explores the legitimacy of different perspectives.

– Exploration using constructivist philosophical assumptions to understand the impact of constructed realities. – Encourages a collaborative response (Bradfield and Aquino, 1999).

Theory Development
• Caution regarding mediation
– "…there may well be a role for mediation but it needs to be recognized that disputes in the employment context may differ from the kind of interpersonal disputes found in family cases."
– Dickens (2008: 15)

• Two substantive criticisms of mediation
– mediation undermines legitimate authority
– mediation hides the process of conflict resolution from democratic

scrutiny.
– Delgardo et al. (1985); Golten and Smith, (circa. 2005)

Theory Development
• Mediation undermines legitimate authority
– In employee relations, does a 'legitimate authority' exist outside employee-owned and controlled enterprises? – Governors (directors/managers) are not - in most companies / organisations - subject to election / recall by those they govern. – Managerial legitimacy remains rooted in property rights, and the powers delegated to managers by the owners of capital.

• Mediation hides the process of conflict resolution from democratic scrutiny
– Can a public interest argument be made on the basis of satisfaction levels and outcomes? – Can democratic legitimacy be argued on the basis of participative (direct) democratic theory, rather than liberal democratic theory?
– Ward (1966); Pateman (1970); Lukes (1974)

Theoretical Framework
Rigid Authority Relations Unitary Ideology Litigation Arbitration Pluralist Ideology Conciliation Directive Mediation Flexible (Dynamic) Authority Relations Radical Ideology Facilitative Mediation Transformative Mediation

Management Prerogative (interpretation, no negotiation)

Distributive Negotiation (negotiate distribution of benefits)

Integrative Negotiation (negotiate interests and values)

Interest Based Bargaining (IBB) and Negotiation (IBN) Authority Driven (Evaluation of facts and arguments) Experience Driven (Legitimation of perspectives)

Law as the Highest Authority (Pursuit of best practice)

The Parties as the Highest Authority (Discovery of appropriate practice)

Objective Reality (Conformance to established norms)

Subjective Reality (Accomodation of divergent norms)

Win-Lose (Promotes Hegemony)

Compromise (Constrains Hegemony)

Win - Win (Promotes Democracy)

Some theoretical propositions
• Mediation:
– Is based on social constructionist assumptions about the nature of reality / authority / knowledge. – Offers a framework for diversity management focussed on explorations of experience, rather than normative controls. – Is part of an approach that supports the advancement of participative democracy in the workplace.

• Mediation provides a framework for:
– Thoughtful questioning and (re)negotiation of organisational norms.
– Learning about the motives / interests that underpin (protracted) workplace disputes. – Considering 'forgiveness' and/or 'social change' as a strategy for dispute resolution.

Implications
• Paper offers a meta-theoretical framework for research into dispute resolution. • Paper offers a discussion framework for students of HRM / Employee Relations. • Limitations:
– based on secondary data, not primary research. – would benefit from empirical testing. – rooted in 'western' debates about employee relations – Usefulness may be more be more limited in other cultural contexts.

References

• • •
• • •


ACAS (2005) Evaluation of the ACAS Pilot of Mediation, Appeals and Employment Law Visit Services to Small Firms, (London, ACAS Research and Evaluation Section), http://www.acas.org.uk/media/pdf/f/I/Research_Paper_05_05.pdf, accessed 1st August 2007. ACAS (2006) Managing Conflict at Work (London: ACAS Publications). ACAS (2008a) Arbitration Explained, www.acas.org.uk, accessed 15th July 2008. ACAS (2008b) Certificate in Internal Workplace Mediation: Trainee Pack (London: ACAS Publications). Bingham, L. and Pitts, D. (2002) "Highlight of Mediation at Work: Studies of the National REDRESS Evaluation Project", Negotiation Journal, April 2002, pp. 135-146. Blyton, P. and Turnbull, P. (2004) Dynamics of Employee Relations (Basingstoke: Macmillan/Palgrave). Bradfield, M. and Aquino, K. (1999) "The Effects of Blame Attributions and Offender Likableness on Forgiveness and Revenge in the Workplace", Journal of Management, 25, 607-631. Bush. R and Folger, J. (1994) The Promise of Mediation: Responding to Conflict through Empowerment and Recognition (San Francisco: Jossey-Bass). Delgado, R., Dunn, C., Brown, P. Lee, H. and Hubbert, D. (1985) "Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution", Wisconsin Law Review, 1985, pp. 1359-1404. Dickens, L. (2008), “Legal Regulation, Institutions and Industrial Relations”, Warwick Papers in Industrial Relations, No 89 (University of Warwick: Industrial Relations Research Unit).

References
• • • • • • • • • • • Fox, A. (1966) "Industrial Sociology and Industrial Relations", Research Paper 3, Royal Commission on Trade Unions and Employers Associations (London: HMSO). Fox, A. (1985) Man Mismanagement (London: Hutchinson & Co). Gibbons, M. (2007) Better Dispute Resolution: A Review of Employment Dispute Resolution in Great Britain (London: Department of Trade and Industry). Golten, M. and Smith, M. (undated) Hammers in Search of Nails: Responding to Critics of Collaborative Processes, http://consensus.fsu.edu/epp/hammers.pdf, accessed 1st August 2007. Huang, P. C. (2006) "Court Mediation in China, Past and Present", Modern China, 32, 3, 275-314. Huczynski, A. and Buchanan, D. (2007) Organizational Behaviour (Harlow: Prentice Hall). Liebmann, L. (2000) “History and Overview of Mediation in the UK”, in Mediation in Context, (London: Jessica Kingsley Publishers). Lukes, S. (1974) Power: A Radical View, (Basingstoke: Macmillan). Mareschal, P. (2003) "Solving problems and transforming relationships: The Bifocal Approach to Mediation", The American Review of Public Administration, 33, 423-448. Pateman, C. (1970) Participation and Democratic Theory (Cambridge: Cambridge University Press). Ward, C. (1966) “The Organization of Anarchy” In L. Krimerman and L. Perry, Patterns of Anarchy, (Garden City, NY: Anchor Books), pp. 386-396.

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