4

DISPUTE RESOLUTION IN THENONUNION ENVIRONMENT: AN

EVOLUTION TOWARD INTEGRATEDSYSTEMS FOR CONFLICT

MANAGEMENT?

Mary Rowe

I. Introduction

Dispute resolution within the nonunion workplace in the United States variesgreatly from employer to employer. There are many small companies with nodesignated dispute resolution mechanisms. There are employers with disputeresolution procedures restricted to specialized situations such as harassmentand discrimination, and some that will deal only with a formal grievance.Many employers are now experimenting with “appropriate dispute resolution”(ADR) mechanisms, such as mediation and arbitration, often using neutralsoutside the workplace.’ Much of the interest in these ADR mechanisms is ori-ented extemaIly, toward those rare dispute-s that are particularly serious andwill othenvise go outside the workplace to a government agency or to thecourts. There is also an increasing number of employers with extensive inter-naI systems-which include internal ADR options<esigned to deal with allthe different kinds of conflict in a workplace. Three systems constitute a majorchange from a prior focus on one or another grievance channel.

‘I’here is no reliable estimate of the number of nonunion employers thathave instituted internal dispute resolution procedures because the subject ispoorly defined and obse~ers discuss conflict management in different ways.zEven within a given firm, dispute molution procedures are sometimes weI1described and understood and sometimes are not. What is clear is the fact thatthere has been a great deal of change over the past thirty years. One studyspublished in 1989 found that half or more of la~e employers had institutedsome kind of grievance process for at Ieast some nonunion employees, and that

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at least one-fifth of those used third-party arbitration as a Iast step in theirformal procedure. The United States General Accounting Office reported in1995 that “almost all employers with 100 or more employees use one or moreADR approaches” and in 1994, Organizational Resources Counselors reportedthat 53 percent of a sutvey of ‘ninety-six leading companies” used an ADRprogram to resolve employment-related issues.4 My own consulting experienceindicates that many organizations are now reviewing their dispute resolutionstmctures and that many are moving toward a systems approach.

Some of these structures and systems appear to be working wel[, but inmany small and large firms the mechanisms that exist am inadequate. For ex-ample, they may fail to cover one or another group of empIoyees or fail to in-clude managers and professionals. In some companies, the dispute resolutionstructures are treated cavalierly by management or are effectively unhewn tothe workforce they are supposed to serve.

Apparent shortcomings of nonunion di~pute resolution have received agood deal of attention in the past fifteen years. Various observers have de-scribed a variety of problems as seen from the employee perspective. Perhapsthe most common criticisms center on inadequate protection of employeerights,s including statutory, economic, and ‘enterprise? rights (those rightsgranted by a specific employer). Many criticisms center on the absence or in-adequacy of formal grievance and appeal channels, focusing especially on theperceived absence of sufficient due process protection. In addition, rights-baxd formal procedures are believed not to work as well for women’s com-plaints as they do for the complaints of men: and the ‘gatekeepers” for com-plaint processes are found to be not as helpful for women and people of coloras they are for white men.

Both men and women experience many problems in the process. Manypeople who use rights-based (formal) complaint procedures far career dam-age —as do their supervisors. Fear of reprisal and conflict of interest are seriousprobIems, especially where formal complaint and appeal procedure risewithin a single line of supervision. The process of using complaint proceduresis often difficult to understand. Nonunion grievants are seen to lack advcwacy.Stakeholders are often left out of the process of building nonunion disputeresolution structures. Finally, providing only a single complaint procedure ofany kind will shortchange empIoyees and managers who do not Iike that par-ticular kind of formaI or informal pmcedure.7

Other common criticisms come from employers. Thousands of employersare reacting to the fact that the obvious tip of the icebe~ of nonunion disputeresolution is handled sIowIy and expensively by government agencies and thecourts. Some employers are also acuteIy conscious of a litany of other seriouscosts resulting from the lack of effective internal dispute ~lution: damage torelationships in the workplace, loss of productivity, sabotage and theft, har-assment and violence, and the like. Some employers are concerned with theparticularly high costs that may ensue when managers and professionals feelunjustly treated. In short, many empIoyers believe that the costs of employmentdisputes are far too high and that there must be a more cost-effective ap-pruach.

Dispute Resolution in theNon-union Envirmment 81

This chapter will review some innovations in nonunion dispute manage-ment and resolution. I first cite various explanations for the introduction ofinnovations among nonunion employers, and various opinions about disputeresolution procedures. I then turn to the concept of an effective integratedconflict management system. Since the success of a conflict management sys-tem depends for the most part on the needs and wishes of complainants, I dis-cuss some characteristics of people who perceive a problem or want tocomplain in the workplace.g I then turn to the implications of the opinions ofvarious critics, and of the characteristics of complainants, for setting the speci-fications for a good system and for providing the options needed in an effectivecomplaint system. The experience of Brown & Root in developing an integratedconflict management system is briefly reviewed as an example of a contempo-rary systems design. I conclude with some suggestions for future rmemch.

II. Why Has the Nonunion Sector Been Innovating?

The reasons for nonunion innovations are varied and complex. To my knowl-edge them has been no satisfactory broad overview of this field or systematicdescription of the different innovations that are emeq$ng all over NorthAmerica. There is no comprehensive understanding about why these innova-tions are appearing or how well they are doing. Most authors have a particularfocus, such as a special concern for employee rights, alternative dispute reso-lution centered on the interests of disputants, cost-control, or healthy organ-izational development. None seems to have a comprehensive Perspective.g Iwill cite just a few of the varied studies about conflict management in theUnited StatH.

Ewing,l o writing in 1989, pointed to erosion of reverence for the sacred-ness of management and management rights, with concomitant growth inconcern for employee rights. He identified as causal factors the influence ofeducation, mobility, and diversity in the workforce, rising expectations forfairness and happiness, a wish by management to create a sense of bdongingand tmst in participative management, a rise in decision making power bypersonneI departments, the proliferation of “conscientious objectors” orwhistle-blowers, and a change in the legaI climate toward thinking about jobs

~ “ProPC~-” He aIso noted an inc~= in inte~f a~uf p~edural justiceand substantive justice and indicated that the former cannot necessarily bedelivered by line managers when there may be a perception of conflict of in-terest. Ewing noted, as do many others,l 1 that employers rdized that theyneeded to fiII the void in conflict management left by the decline in unioniza-tion and therefore in union grievance procedures. He noted extensive changesin federal and state laws that restrict employment at will. In addition, some ofthese legal changes encourage and require employers to provide fair processesfor complaints within their organizations.lz Ewing also discussed the influenceon thinking in the United States of worker rights and dispute resolution insti-tutions in Europe (see Clarke’s discussion in chapter 8).

The rise of individual rights and of corporate responses in the 1970s and1980s also was chronicld by W&in and FeIiu.13They stressed the importance

of whistle-blowing, equal oppofinity imperatives, and the rk of litigation.They noted the proliferation of corporate innovations in conflict managementover a decade of major change. Bedman’4 has recently chronicled changes inhow employment disputes are handled in the U.S. legal system; he took par-ticular note of the expansion of tort law.

Ziegenfussls discusses many of the same issues, emphasizing cost controlwhere costs are broadly defined as including lost productivity. He wrote thatconflict can be ve~ expensive in a competitive environment, espwially in aworkplace that is subject to the dislocations of technological change. Cost con-trol was also a central issue for Blake and Mouton16 in their remarkable (andprescient) book on intragroup conflict within organizations. They looked atlost productivity in the aftermath of mergers, reductions in overhead, realign-ment of products, and many other situations where ttust had been destroyed orwas otherwise absent. They concluded that these costs could be loweredthrough a thoughtful, systematic approach to conflict management. McCabel 7also focused on cost control, including the need to constrain the emotionalcosts of workplace conflict, ethicaI obligations increasingly felt by senior man-agement, and the need for senior administrators to catch their mistakes so theycan correct them.

Cost control, including, for example, the costs of wildcat strikes, also wasthe focus of Ury, Brett, and Goldberg.ls This concern for cost-effectivenesscontributed to the development of their brilliant theoretical analysis of pro-viding mediation as part of a systems approach to conflict resolution in a un -ionized setting. They were among the first to popularize the notion of dispute ,resolution systems design. More recently they have extended their ‘alternativedispute resolution” orientation to dispute resolution in nonunionized settingsand commercial disputes’s

In his 1993 overview of rights in the workplace, EdwardsZOwrote that thegranting of nonstatutory rights in employee handbooks and the advent of in-novative complaint mechanisms in the nonunion arena were motivated by fourfactors: the desire of employers to compete successfully for the best workers, awish to avoid unionization, a wish to avoid costly lawsuits, and a belief thatworkers desewe rights. 1..win,2’ who has written extensively about disputeresolution, has suggested, in addition to other points cited above, that nonun-ion empIoyers seek to improve work performance by providing dispute resolu-tion structure+ Edelman, Erlanger, and T.andezz conclude that the chiefimpetus for employers to build internal dispute resolution structures is tosmooth employment relations and get re.dution to employee tension, as theyput it, by appeasing employe=.

In addition to studies that have concentrated on processes intemaf to theworkplace, there has been a great deal of interest in the 1990s in external DRExternal DR processes such as mediation and arbitration allow employers todeal with problems that would othenvise move from inside the workplace toexternal agencies such as the Equal Employment Opportunity Commission(EEOC) or to the COUrtSfor rmolution. The driving forces behind the use ofthese processes are a concern for finding ways to reduce the workload of thecourts, the control of legal and other costs of litigation and of settlements, par-

Dispute Resolutionin the Non-union Ennhunment 83

titularly in juxy trials and for statuto~ rights cases, as well as perhaps thesearch by lawyers for new areas of practice.zs

Most of three external “ADR” devices are tightly focused mediationand/or arbitration steps at the end of or in addition to a grievance procedure.Most deal only with rare cases, though some are configured as part of a com-prehensive systems approach to conflict management.24 Some employers offermediation and arbitration on a voluntary basis, some require agreement tononcourt dispute molution involving employees who will benefit from stockoptions or who wilI receive other benefits, and some employers have madeimposed arbitration a condition of employment.

Imposed arbitration as a condition of employment is very controversial.The National Labor Relations Board (NLRB) and the Equal EmploymentOpportunity Commission (EEOC) oppose imposed arbitration, particularly forciviI rights cases, Some opposition also exists in the courts, although a fewrecent court decisions also support imposed arbitration. There is also bothsupport and opposition in Congress. Many arbitrators have raently an-nounced that they will not handle cases arising under an imposed arbitrationprogram.

Criticisms of specific dispute resolution mechanisms have led many pro-fessionals besides Ury, Brett, and Goldbeqg to conclude that the best approachis to focus on a conflict management system that provida options. Forexample, taking an industry-bawl perspective, both Marcus and Slaikeuzshave each recently discu.ssd the need for conflict management systems inhealth care. Costantino and Merchant26 have taken an organizationaldevelopment approach to the subject, writing about the need for “productiveand healthy organizations.” According to them it is self-evident that disputes,internal competition, sabotage, inefficiency, low productivity, Iow morale, andwithholding knowledge within an organization are symptoms that should leadto conflict management systems design.

In my own work at MIT on conflict management systems design,z’ Ijoined an effort focused on meeting the needs of a diversi&ing workforce andstudent body in a high-tech educational and research environment. M variousissues emerged, increasing attention was given to meeting the “needs of thecustomer.”zg I found that people who wanted to raise a concern or complaintovenvhelmingly wanted options, and preferred their own choice of optionswherever this is appropriate.zg Fortunately, the wish for a choice of optionsmatched weIl with the MIT systems design tradition of providing “m.dundantmresources and structures for people with problems.~

My own employer has been evolving a systems approach to conflict man-agement for about twenty-five years. Many other employers, includingcolleges and universities, government agencies, foundations, and corporations,have been designing their innovations in a similar way over recent years asthey listen to requests and concerns within their own communities, toleadership from one or another innovative senior manager, to federal and statelaws and agency requirements, to court decisions, to public demand (see, forexam pie, the 1994 Dunlop Commission), and to outside consultants.Innovative companies in this area include Citibank, Federal Express,

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McDonnelI-Douglas, Motorola, Polaroid, United Technologies, Xerox, andmore recently American Express and Brown & Root. Government examplesinclude the depafiments of the Air Force, the Army, the Navy and MarineCorps, the Coast Guard, the U.S. Secret Service, the Federal Deposit InsuranceCorporation, and many others. Innovative international institutions include theWorld Bank and the International Monetary Fund.

111. Designing an Effective Integrated Conflict ManagementSystem

There are several basic changes implicit in this evolution toward integrateddispute management systems. The first is the idea of a system which providesvarious options and various resource people for all persons in the workplaceand all kinds of problems. This approach contrasts with the more traditionalmethods of providing a single grievance procedure that is onIy for workersgrieving against management, or one designed for a limited list of disputesarising under a contract. A system provides “problem-solving” options basedon the interests of the disputants, and ‘justice” options based on rights and onrights and power. The second major change is the broad idea of conflictmanagement. This may, for example, include the idea of teaching peers, suchas managers and teammates, how to negotiate their differences with eachother, teaching a whoIe workplace to use constmctive dissent for continuousimprovement, and learning how to prevent some costIy conflict. Conflictmanagement is a more comprehensive idea than just a process for ending spe-cific grievances. A third idea is that of integrating conflict management optionsand stmctures with each other, k the context of an overall human resourcestrategy.

A. System Development

My experience dealing with some hundreds of employers over twenty-fiveyears suggests that most nonunion conflict management systems have devel-oped structure by structure, in an ad hoc reqmnse to one or another concern,such as containing litigation costs, dealing fairly with diverse populations, orresponding to a consent decree. Some employers, however, such as FcxleralExpress, have taken from the beginning a relatively comprehensive ‘systemsapproach”, and a few rdatively complete systems are now emerging (such asthat of Brown & Root discussed below). Whatever the history in a givenworkplace, I do not beIieve in ideal modeIs. AU the excellent systems that Ihow are evolving steadily and along somewhat different paths. Since differentinstitutions have widely different missions, and oyerate within different legalenvironments and value systems, it seems reasonable to me that they havetaken and will continue to follow different paths to systems that are custom-tailored.

Dispute Re.dution in the Non-union E.nvizunment 85

B. Stakeholder Input

A major question with respect to systems design is how much input thereshould or will be from all the stakeholders of the given organization. Expertson labor relations and organizational development, observers concerned withthe rights of respondents and those of complainants, and persons especiallyconcerned with the rights of minority and women’s groups, feel strongly aboutstakeholder input in the design phase. To build effectiveness and tmst in a sys-tem, stakehoIders should be asked first what they want and then be provided astmctured means to give input into both design and continuous improvement.Design consultants offer structured plans for such input.sl

It should be noted, however, that some impxtant innovations in conflictmanagement have occurred through the determined efforts of a CEO or othersenior manager and even by what Walton, Cutcher-Gershenfeld, and McKersiemight think of as ‘forcing” an innovation.sz Paradoxically or not, some rela-tively thoughtful, integrated systems are being set up by using managerialpower with relatively little input from employees and managers.

c.Begin w-th the Characteristics of CbmpI_ainahts

Whether a systems design comes from extensive stakeholder input, by fiat fromabove, or both, I believe, at a minimum, that certain characteristics of com-plainants, i.e., the initial “customers,n must be considered in fashioning a sys-tem. This idea has not been sufficiently discussed in the literature, and it is notnecessarily the same idea as %takeholder input.” Those who s~k up aboutconflict management design are not necessarily those who will find themselvessuddenly in need of a complaint system. This is especially true in a multicul-tural context. Many people who speak up about dispute re.scdution havethought mainly about the interests of employers, the rights of complainants orrespondents, organizational development principle+ or conflict resolution the-ory, all of which are important, and all of which contribute to the design ofprocedures people think complainants should want. But considering whatcomplainants actually want, which is, if possible, to raise concerns m tfiey~rsomdiy wish to raise them, k critical to ensuring that a system is actuallyused.ss

Probably the most common characteristic of people who have a concernor grievance is that they just wish their problem would go away—they ‘do notwant any process.n Many complainants are simultaneously uncomfortableabout doing nothing, uncomfortable about taking any kind of action on theirconcerns, and angry if they feel they “either must do something or have toquit.” In addition, most complainants disapprove of other options that easilycome to mind, which employers also consider unconstructive, such as walkingout, absenteeism, going slow, sabotage, agency complaints, legal suits, bittergossip, anonymous attacks, and the like. In short, people with problems oftenfeel that they have no options at all.

Why is constructive conflict difficult? One major reason is that most peo-ple in the United States still think first or only about formal grievance proce-

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dures although virtually evexy survey shows this option to be unwelcome tomost people for most problems. There are, of course, some problems, such ascriminal behavior, which require formal procedura. But there is a long list ofreasons why most people do not wish to use formal grievance procedures formost kinds of complaints. People with concerns and complaints often fear lossof privacy and dignity with respect to family and relatives, supervisors, andcoworkers. They may value the relationship they have with the person they seeas the source of the problem, and other relationships they have inside and out-side the workplace, and fear these relationships will be placed at risk if theyfile a grievance.34 They often fur covert as well as overt reprisal from the em-ployer, and dread criticism from family and from colleagues who may heargossip about them. They fear being thought of as disloyal, lacking in humor, ora poor sport. ‘~oken” professionals, including women, people of color, andanyone who is nontraditional in a traditional environment, may e.speciaIly fearbeing seen as troublemakers rather than self-confident professionals. Manypeople also hate the idea of losing control over their concerns. (This issue ap-pears especially true for professionals and managers.) Complainants may—rightIy or wrongly-fear that they do not have enough evidence to prevail inan investigatory procedure. This fear is especially common regarding dis-crimination and other interpersonal problems. In addition, some people fearthey will be criticized on free speech grounds if they complain in a formalgrievance procedure about offensive communications.

Because most complainants ‘just want the problem to stop,” they are of-ten concerned that an adversarial option will result in punishment of the of-fender, rather than just fwing whatever is wrong. Complainants commonlyfear that they do not have the skills to complain effed-ively. But many peopledislike asking any third party for help, except maybe a friend, and many havevery strong feelings about which third party they would or would not considergoing to, if going to a third party is required by the employer. If the third partyin a formal grievance process is not tmsted, many complainants wilI not comeforward at all. For all these reasons, a majority in the workplace will notchoose and cannot be persuaded to file a formal grievance+ven for suchproblems as civil rights violations which many people feel belong in a nghts-based process.ss If people with problems are to act in any constmctive fashion,most of them must be provided with interest-based options designed with thewishes of complainants in mind.

On the other hand, a small number are satisfied on!y by a formal, rights-based, win-Iose process, They typically wish to be abIe tomove directly to file agrievance, and have it investigated, without prior, interest-based steps. Theymay not understand any option other than a formal grievance prwedure, orthey simply regard a rights-based option as the only just process. They mayalso have strong feelings about desirable elements in a rights-based procedurekwin has studied the wishes of complainants with respect to formal proce-dures He identified theiran impartial process, inprotection from reprisalseveral levels of appeal,

interest in a; independent fact~finding proced~m, inobtaining feedback about grievance settlements, inand from the disapproval of coworkers, in havingand in having at least some outcomes favorable to

Dispute Resolution in theNon-union Lhvihmment 87

those who file grievances.36 If people oriented toward right and wrong are tobe satisfied, they should be allowed in appropriate cases to move directly to arights-based option designed with wishes of complainants in mind.

There are also a few people who present especially serious challenges fora fair dispute resolution system. They may deepIy distrust other people, andmay reject the idea of due process for people who are seen to be the source ofproblems. A few complainants want revenge. A few enjoy fights in and ofthemselves, and resist settling any dispute. Occasionally aIso a complainantbrings a complaint for an ulterior reason, such as preventing a layoff or termi-nation. In addition, a few people wish simply to disrupt the workplace. Rights-and power-based options are usually the most reasonable processes for theseram situations.

Many men and women who have a concern or grievance who say thatthey are unable to concentrate or think cl~rly, express fear that their work isdeteriorating, and state that they do not know how to pursue a complaint. Sys-tems should provide support for these complainants to find and use construc-tive options.

lV. Specifications for an Effective System

Building on many ideas raised in the literature, on my own experience, and thecharacteristics of complainants as I know them, I believe that an effective inte -grated ‘conflict management system would include the following basic charac-teristics.

VaIues of the system: There is a general orientation toward conflict man-agement that derives from the core values and human resource strategy of theorganization. The orientation includes a commitment to fairness for everyoneinvolved in a dispute and freedom from reprisal. The employer proscriba re-prisal against any disputant, including supemisors who act in good faith, andincluding witnesses who speak up for any disputant. The strategies of fairnessand freedom from reprisal are backed by top managers who hold themselvuaccountable, and am held accountable, for the success of the system. There is atleast one powerfuI senior manager who embodies this commitment and un-derstands the nature of conflict management. The employer presumes that thebackbone of conflict management is not based primarily in staff offices such ashuman resources and the legal department, but is, rather, embedded in linemanagement and team management. Preventing unnecewiry problemsthrough active listening and effective, respectful communications is seen as amajor responsibility of line management and of members of teams. The im -portance of constructive questions and dissent is seen as a major part of‘continuous improvement” of the organization and of teamwork.

Many options: A variety of interest-based and rights-based dispute reso-lution techniques are offered to employees and managers, and employed for theclients of the organization (e.g., visitors, students, patients, nursing home resi -dents, vendors, policyholders, franchisees) as appropriate.9T The interest, basedoptions are usually avaiIabIe in parallel, rather than as sequential and requiredsteps of a single procedure. With respect to the choice of options, the parties

88, Mary Rowe

may in many cases ag~e to loop fonvard from an interest-based option to arights-based option (or to a rights- and power-based option) ,~s or loop backfrom a rights-based option to an interest-based option.sg For most problemsthat are not of a criminal nature, these options are initiaIIy available to thecomplainant. This contrmts with previous approaches in which the complaint-handler chose how a prob!em would be handled in the nonunion environment,and with the single grievance procedure that was the usual option in a union-ized environment. In the rights-based, formal grievance and appeal optionthere is an appeal mechanism that takes investigation or decision making, orboth, out of the line of supervision. There are reasonable standards of conductfor formal investigations and decision making. Disputants have a right to beaccompanied, though they may under ordinary circumstances be expected torepresent themselves.

Multiple access points: People with concerns and problems can find ac-cess points of different ethnicity and gender, and varied technical back-grounds, to help them. These access points are people who have been trained toact as fair “gatekeepers” for the conflict management system. In a small com -pany these might just be specially designated employees and managers. In alarge firm, these would include professionals such as human resource manag-ers, empIoyee assistance providers, equaI opportunity specialists, and occasion-ally rdigious counselors. They provide a degree of privacy and support forvarious options in the conflict management system. Access points also includespecialized personnel in safety, security, environmental hazard, ethics, andaudit departments. Some employers can provide 800 lines for people to talk,and seek advice, and provide information anonymously. AU disputants may beaccompanied, when using the system, by a colleague or coworker.

h organizational ombudsperson: There is, in addition, at least one om -budsperson, designated as a neutral, who is available to heIp informally withany workplace concern, and to provide formal mediation as appropriate.40 In asmall company one or several people may can-y these responsibilities on apart-time basis. Ombudspeople report outside ordinaty line and staff struc-tures to the chief executive officer (CEO) or the chief operating officer (COO),or local pIant manager. The ombud.sperson maintains strict confidentiality,asserts a privilege to protect the confidentiality of his or her practice, and fol-lows the Code of Ethics and Standards of Practice4~of an ombudsman associa-tion.

Wide scope: The system is used by professionals and managers with con-cerns as well as by employees. The system takes virtually eve~ kind of concernthat is of interest to people in the organization. This includes, for example, dis-putes between coworkers and between fellow managers, teammates, andgroups, as well as classic concerns about conditions of employment and termi-nation. The system may also listen to recently fired employees, outsiders whofeel badly treated by someone who works for the employer, anonymous com-plainants, and others as appropriate. The system can deal with multi-issuecomplaints.

Continuous improvement: An oversight committee is built into the sys-tem and meets regularly to improve the effectiveness of the system.

Dispute Resolution in fhe Non-union Envhnment 89

V. Options and Functions Needed in an Effective System

A. Interest-based Options

Interest-based options for “problem solving” attempt to address the real needsof the complainant, as distinguished from defining problems and theirsolutions solely in terms of legal rights. Options of this sort can provide severaladvantages to the complainant. For example, an effective, direct approach froma complainant to a respondent may lower the likelihood of reprisal, offer free-dom for the complainant from the demands of evidence, and offer more con-trol over, and greater comfort with, the process of problem resolution. Interest-based options can be prompt and swift. For example, some options can bepursued by the complainant or offered by line managers on the spot. Interest-based options aIso are particularly appropriate for dealing with offensivecommunication.

Listening: An important option that a person may choose is just to taIk,and for the line manager, ombudsperson, or other mource person to listen, inan active and supportive fashion. The manager or resource person may affirmthe feelings of the individual but shouId be impartial with respect to the factsof a situation unless or until the facts are known. In many cases, “being lis-tened to” is what a person with a problem wants and needs. Listening and be-ing gently questioned may help put a problem into perspective. It may help aperson to dd with rage or grief or uncertainty or fear. It may help people dealwith stress so they can take the time that they need to figure out what is hap-pening to them or what the problem actually is. This option is probably themost cost-effective element of a conflict management system, both for peoplewith concerns and for employers, although ironically it is the option most of-ten overlcmked. StiII some employers such as the Internal Revenue Service, theRoyal Canadian Mounted Police, and Brown & Root are attempting to teachlistening skills to hundreds or thousands of supervisors.

Giving and receiving information: A person often needs information ona one-to-one basis, A manager, ombud.sperson, or 800 line might provide acopy of a policy or obtain clarification of the meaning of a policy, so a personunder stress does not need to search or read dozens of pages of a manual. Theresource psrson usuaIly can provide or find information that reiolves a prob-lem in one or two contacts. A manager, ombudsperson, or 800 line may also begiven information about a probIem in the workplace such as a safety issue,evidence about a theft, harassment or potential violence, or about equipmentthat needs repair. A team may be offered suggestions for improvement from ateammate who perceives a problem. These data may be offered anonymously,or surfaced in a quiet way, for fair handling by appropriate persons. Again,despite what I believe is the cost-effectiveness of this option, tm many systemsdo not make explicit provision for giving and receiving information on a one-to-one basis.

Reframing issues and developing options: A manager, ombudsperson, orother resource person can often help a caller or complainant develop theirown ideas about options they find acceptable for settling a conflict. As we have

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seen, many people believe they have no options or only bad ones. The super-visor or resource person may help frame or reframe the issues, identify or de-velop new and different perspectives, and describe additional, respcmsible andeffective paths from which the caIler or complainant may choose. This func-tion is often especially useful to managers who have a probIem and are seekinghelp. This option also is quite useful where complainants will ultimatelychoose to file a formal grievance but need time, information, and support todecide to do so. This option must be relatively private, so managers must betaught not to act precipitously when they hear of a problem that is not anemeqgency. Furthermom, for some people to be willing to use this option, itmust be totally off the record, which means providing an ombudsperson.

Referral: Many disputants and complainants need more than one helpingresource —in effect, a helping network. Some need the help of a person such asan employee assistance professional or a co!league who can accompany themin raising a concern. Eve~ manager and resource person should know theother workplace resource-s available for people with problems, both to referdisputants and complainants to others, and to work effectively together withothers on behalf of a person with a prob!em, when given permission to do so.The need for this function makes it imperative to integrate aIl the elements andresource persons in a conflict management system.

Helping people help themselves in a direct approach: An ombudspersonor other resource person, manager, or teammate may help someone with aprobIem to deal directly with the perceived source of a problem. Through dis-cussion, support, and role-playing, a person with a concern may deveIop theskills and self-confidence to work on an issue without third-party intemention.When experts speak of “delegating disputa to the lowest possible level,” this isthe option on which they primarily should focus rather than on forms of third-party intervention. This is also an option to foster in the workplace for devel-opment of “individual accountability.” In some cultures, however, the directapproach, or particular versions of the direct approach, may not be consideredappropriate. Consequently, a sensitivity to cultural difference is importantwhen discussing options.

This option includes A (the complainant) choosing to deaI directly with B(the apparent offender or the perceived source of a problem) in any of severalways. A could choose to write a private note or letter to B, laying out the factsas A sees them, A’s feelings about these facts, and the remedies prop.ed by A.Alternatively, A could chrome to go talk directly with B, with or without pres-entation of a note or letter. A may decide to go back to B aIone, or accompaniedby a friend or colleague. It is possible that A will need to be taught or at leastgiven some guidance on how to write a letter to or talk with B in the most ef-fective way. If a manager or resource person knows that a direct approach isbeing chosen, he or she shouId typically foIlow up with A to find out if thesituation is resolved and to check on any evidence of reprisal.

Shuttle diplomacy A person with a concern may choose to ask a thirdparty to be a shuttle diplomat, who wilI go back and forth between A and B orbring A and B together informality to resolve the problem. The third partycould be a line supervisor, a human resource officer, an ombudsperson, or

Dispute Resolutionin theNon-union Enn“mnment 91

other staff member. Alternatively, a complainant might choox to ask a team-mate, uninvolved collea~e, or other appropriate pmon to intervene. It is im -portant in this approach that there should be no formal disciplinary actiontaken by a third party without a process that is fair to the alleged offender. ForexampIe, moving someone or reassigning duties42 is not usually defined as dis-ciplinary action where these are customa!y management responsibilities, but aformaI letter of reprimand would be so defined. If possible, the person whowas the go-between should follow Up afterward, to see if the problem is re-solved and to check about possibIe reprisal.

“Looking into” the problem informally Most problems, especially if theyare caught early, do not require a formal invatigation. There are at least twokinds of informal data gathering that maybe done by third parties, one by om-budspeople and another by line managers, administrative officers, human re-source managers, and other appropriate staff. Assistance from anombudsperson (except cIassic mediation as described below) is infomal. Linemanagers, and staff people such as administrative officers and human resourcemanagers, may look into a problem informally, but also may make manage-ment decisions as a result.

The role of an ombudsperson is diffemmt from that of a fomnal fact-finder(whose investigation becomes part of a case record and part of the decisionmaking process for the employer), and f~m that of an arbitrator (who* deci -sions typically are binding on the parties to a grievance-see rigMJmedoptions below). Most U.S. organizational ombudspeople look into problemsinformally and typically keep no case records for the employer. They usuallywill report findings directly to the person that came to see them or, with per-mission, to a relevant manager, or the findings become part of the work ofshuttle diplomacy by the ombudsperson. In many such cases the ombudspersonserves the purpose of providing informal neutral fact-finding and informal“early neutral evaluation” so the disputants can get an idea of what a peer re-view board or an outside arbitrator or judge might think if the problem wentto formal grievance or to court. If the informal findings of an ombudspersonindicate the need for formal investigation, for example by line management,the audit department, ethics office, safety office, or security department, typi-cally the ombudsperson will tty hard to get permission to turn the matter overto the appropriate formal fact-finder.

A few organizational ombudspeople, especially in Canada, may agree tolmk into a problem on a fairly exhaustive basis and tite a report includingthe ombudsperson’s opinion of right and wrong. This action is typically at therequest of someone in the organization other than the employer, and is typi-caIly not for discipIina~ purposes.43 The findings of an ombud.sperson may beaccepted in whoIe or in part, or ignored or rejected by the employer since thefindings am not binding.

Classic formal mediation: Classic mediation is the only formal, interest-based option. This option is offered by employers in many organizations. Inclassic mediation, A and B are heIped by an organizational ombudsperson, oranother professional (neutral) mediator, to find their own settlement, in aprocess that is rather formal and has a welI-defined structure. A and B may

L

92 Maqv Rowe

meet with each other and the mediator, or may deal with each other indirectly,with the mediator going back and forth between them. Classic mediation ispurely voIunta~ for A and B and for the mediator. This option must thereforebe chosen by both disputants, and agreed to by the mediator, if it is to occur.Settlements often are put into writing, and may be on or off the record as theparties may decide. Classic mediation, as offered by an inside neutral such asan ombudsperson, frequently results in off the raord settlements and is there-fore a private way to settle delicate issues when that is the wish of the parties.Classic mediation offered to the employer by outside neutrals may result insettlements kept by the empIoyer if the employer is one of the parties, or as acondition of the settlement.

Formal mediation is still chosen infrequently, but is becoming somewhatmore common. Some empIoyers offer mediation only for certain issua such astermination, and a few only after termination has occurred. Some empIoyershave ombud.speopIe or other specialists with training and expertise in inter-group and intragroup mediation and conflict management.44 These specialistswork with small or large groups, or may be called to advise managers who areinterested in mediation techniques for managing dissent and disputes withinand between groups. Some such specialists are called upon to train or supportthe work of self-managed teams.

Some employers are now offering a semice called ‘mediation” by selectedmanagers or in-house counsel who are not designated as neutrals or trained inthe code of ethics and standards of practice of ombudspeople and mediators.This kind of dispute resolution can at best, be likened to good shuttle diplo-macy (see above). It should not be called mediation, or thought of as classicmediation by a neutral, and could not easily be shielded by a mediator’s privi -Iege if the dispute shouId go to court.

Generic approaches: A complainant may choose a generic approachaimed at changing a process in the workplace or alerting possible offenders tostop inappropriate behavior so the alleged specific problem disappears withoutthe direct involvement of the complainant. For example, an ombudspersonmight be given permission to approach a department head about a givenproblem without using any names. The department head might then choose todistribute and discuss copies of the appropriate employer policy, for instance tostop supemisors from requiring uncompensated overtime from nonexemptstaff. Likewise, a department head might encourage safety training or harass-ment training, to stop and prevent the alleged inappropriate behatior. Genericapproaches may be effective in stopping a specific offender and may preventsimilar problems. The ombudsperson or other go-between should follow up tobe sure that the complainant believes the specific problem has ended and thatthere have been no repercussions. Generic approaches offer the advantage thatthey typically do not affect the privacy or other rights of anyone in the organi-zation.

Systems change: People with concerns often simply wish to suggest achange of policy, procedure, or structure in an organization, to recommendreorientation of a team project, or to start an orderly prcwess of dealing with apolicy, group, or a department seen to be a problem.qs Such people may take a

Dispute Resolutionin theNon-union Enn-mnment 93

direct approach (as above) to try to change matters, may bring issues to rele-vant supervisors or complaint-handlers such as human resource officers orombudsWople,46 or they may make suggestions on anonymous employee sur-veys or on an 800 line. This is especially impotiant for probIems that are newto the organization. Those who supemise the complaint system should be onthe lookout for new problems and for any pattern of problems that would sug-gest the need for a new policy, procedure, structure, or training program inthe organization.

Training and prevention: The employer should, if possible, maintain on-going training programs to teach the skills of teamwork, conflict management,and dispute resolution and to teach about specific topics such as diversity, eth-ics, safety, etc. The empIoyer should ensure that supervisors how the princi -pies of interest-based and right-s-based dispute rescdut-ion. The employer shouldprovide training that fosters individual responsibility and accountability at alllevels. For most problems people should be encouraged to deal with problemsdirectly and to help others to help themselves in a responsible and effectivefashion.47 A company with many teams might focusqmanagement of conflictwithin self-managed teams. Many workplace disputes arise because of imper-fect communication abut rides and expectations, disagreements about per-formance, and interpersonal and diversity tensions. Ml supervisors shouldIearn active listening, should how the poIicies and rules of the organization,and should know how to get authoritative advice when needed. WhereverpossibIe, supervisors should be trained in setting performance standards and inperformance evaluation, with explicit responsibility to recognize good per-formance and poor performance.

This training must also include issues of dissent and reprisal.ds Preventingreprisal is, I think, the most important and most difficult issue for training.Retaliation stifles good communication and in many employment situations,including civil rights cases, retaliation is illegal. Differentiating constructivefrom unconst-mctive dissent is not easy. Those whose ideas are not acceptedmay feel in any workplace that they are meeting retaliation. Four differentgroups need training about raising questions, about disagreeing and aboutcomplaining: potential complainants, potential respondents, potential bystand-ers, and supervisors. The employer should specifically teach people how toraise a question or a complaint, what to do if one is the subject or recipient of aconcern or complaint, and what to do if one is a bystander. The employershould train its supemisors and employees that it is not acceptable to punishsomeone who has raised or responded to a concern in good faith in an orderlymanner. Complaint-handlers should be required to plan and take reasonableaction to prevent reprisal and then follow up to see that they have been suc-cessful. The basic tasks for those who handle specific complaints are twofold:to deal fairly with the disputants, and to prevent reprisal for raising a com -plaint or concern in good faith.

Following through: Often a resource person or supervisor will undertakesome action as requested by a person with a concern. In other cases a com -plainant will decide after consultation to act directIy. Complaint-handlers can“foIIow through” on the problems brought to them in many different ways. For

94 Mary Rowe

example, a manager might simpIy ask the complainant to call back, or followup on administrative action to see that it was effective. A manager might listenfor evidence of reprisal or might follow up months later with a complainant tosee that all is well.

A custom approach: Where none of the options above seem exactly right,a person with a concern or -compIaint may ask for or need unusual help. Atypica! exampIe would be act]on vnth a long or short time lag that is appropri-ate to the situation. If a[l options temporarily seem inappropriate, an ombud-sperson or other resource person or manager can sometimes simply continueto look for a responsible approach that is tailor-made for a particular situation.

B. Rights-based Options

Disciplinary action and adverse administrative action against a respondentrequire a fair investigatory and decision making process. Definitions of appro-priate process differ.4g I think a fair internal process should include notice tothe aIleged offender, a reasonable opportunity for that person to respond tocomplaints and evidence against him or her, a chance to offer his or her ownevidence, reasonable timeliness, impafiality of investigation and decisionmaking and freedom from arbitrariness and capriciousness, the possibility ofappeal, and the right of accompaniment by a colleague or coworker. The em-ployer should have explicit rules about maintaining privacy in complaint han-dIing. The employer should, if possible, provide for follow-up monitoring oneach case settIed formally, to check if the problem has been resolved and thatthere is no reprisal against any disputant or witness.

Investigation and adjudication and formaI appeals: A supervisor, de-partment head, personnel officer, formal fact-finder, or other appropriate staffperson may investigate and/or adjudicate a concern in a formal fashion, ordeal with an appeal in a formal grievance channel. Final appeal may be to asenior manager or to the CEO. Best practice in my opinion requires separationof fact finding from decision making in serious cases, and the lmssibility of ap-peal to a person or structure that is outside the relevant line of supervision.This avoids real and perceived conflicts of interest.

The best-known internal structures include peer review, an off-lineboard of appeals that incIudes peers, or an off-line senior manager who makesa final decision. Peer or board review structures may act with power or, alter-natively, result in a recommendation to a senior decision-maker, who typicallyhonors the peer or board findings. I believe that complainants and respondentsshould be able to strike names, and/or choose the peers who will judge themfrom rosters maintained by the employer.

Other possibilities for formal action include inside and outside fact -find-ers. They may repofi to an internal decision maker or may offer an advisoryopinion to the parties about how an arbitrator might decide the matter if itwere to go to arbitration. Combinations of options also occur. For example, apeer review system may be coordinated by an ombudsperson who is empow-ered to offer mediation as a final step before the peer review panel meets. An

Dispute Resolutionin the Non-union Envimnment 95

outside neutral fact-finder might offer the results of investigation to the dis-putants, and then function, if asked, as a formal mediator between the parties.

Some employers are offering a rights-based option provided by outsideneutrals as the Iast step in the employer’s complaint procedure. Some employ -ers require arbitration as the last step, as a condition of employment, for alIcomplaints including statutory rights complaints. As noted earIier, manyobsemers find this requirement to be wrong.5’ There is also much discussionabut appropriate elements of due process for formal investigation andadjudication outside the workplace. Some observerssz believe that the dueprocess expectations for arbitration should include the right of counsel for thecomplainant, part or all of the costs of counsel,ss and a chance to help choosethe neutral.

time organizations have their own security or sworn police force. Thisdepartment may offer an option for eme~encim based on both rights andpower. A complainant who fears for her or his safety, for exampIe, may ap-proach a police or security officer at the workptace to ask that someone becal[ed in—for discussion, for a warning, for investigation, or for other appro-priate action. Some workplace police and security departments will supportcomplainants in a request for a restraining order or for enforcement of a tres-passing order. Except for emergency action, workplace security and police -departments ordinarily coordinate with the employer’s customary disputeresolution options.

C Monitoring, Evaluation, and Oversight

The employer should provide for data collection and evaluation of the system.The statistical information provided should be used in a way that supportscontinuous improvement of the system and appropriately protects the privacyof individuals. Each o~ani=tion needs to decide how to evaluate effective=;I will state a few of my own ideas. I believe that the most important element ofevaIuat-ion is to ensure that the ~stem is actuaIly used by a wide cross sectionof men and women in aII pay classifications and of rough[y the demographicprofile of the organization, since this is the best indicator that a program istrusted. The system should be used for all the problems that people in the or-ganization think are important. It should be perceived as credible and fair bythe various stakeholders. The system should produce demonstrable change andimprovement in the organization, and it should save money.

In my opinion, the system should be overseen by a group rather than byone manager, except in vety small organizations. In Iaqge firms there shouldbe a specialized group in each major operating unit, including, for example,appropriate persons from senior line management, human resources, security,medical department, employee assistance, equal opportunity, religious coun -selors, ombudspeopIe, legal counselors, and those responsible for functionsthat generate much conflict, such as personnel transfers or housing, The over-sight group should meet on a rqqdar basis, at least monthly. It should talkregularly about difficuIt and dangerous cases and link the complaint system toother systems inside and outside the operating unit and to the local community

96 May Rowe

as appropriate. In many o~anizations this will be the group that will receivecomments from users, monitor, report on, and work to improve the system ona continuous basis.

VI. Overview of the Brown & Root Dispute .ResolutionProgram

I know of no employer that has an integrated conflict management system withall the features that I have de-scribed in this chapter. There are, however, hun-dreds of employers adopting a subset of the innovations described here, andmany that are evolving toward a comprehensive system. A weI1-known case inpoint is the dispute resolution program (DRP) of Brown & Root, a large, inter-national, nonunion constmction firm. The DRP began in June 1993 and coversonly its domestic operations. The program began with focus group input fromemployees and managers of the company. It is, however, largely the brainchildof a creative associate general counsel, William Bedman,s~ and of an experi-enced consulting group, Chords Conflict Management, of Austin, Texas.

The Brown & Root DRF’is founded on principles of fairness and freedomfrom rdaliation. It is overseen by committed and knowledg=ble senior man-agers. It provides options both inside and outside the company. Internal op-tions include listening, referral, discussion of options, informal fact-finding,shuttle diplomacy and mediation inside the company for any type of workplaceproblem. Four levels of options are presented in a clearly written bcdclet givento all employees. At level one there are parallel interest-based options. One isan open door policy within the line of supervision. Front-line supervisors arebeing trained in listening skills and conflict management, and the companyplans to continue indefinitely to train supervisors in conflict managementskills. Retaliation is forbidden (and at least one manager who was found toretaliate has been fired). A complainant may talk any time with the PersonnelOffice of the given business unit, or with Corporate Employee Relations orother specialized offices as appropriate. A complainant may also call off therecord, either anonymously or with all the identitjing details of a case, to anemployee hotline staffed by advisers.

At level two, any unresolved problem maybe brought to the DRP admin-istrator who can arrange dispute resolution conference-s. In the usual case,various options will be explored, including informal mediation by one of anumber of trained, internal neutrals. In appropriate cases the DRY specificallyallows for loops forward (for example, to arbitration) or loops back (for exam-ple, to in-house mediation), as complainants review their options. The leadprofessional in the DRP office is an experienced mediator who reports to ahuman resources manager but is designated as a neutral. She serves the pro-gram as an ombudsperson and practices as far as possible to the Standards ofPractice of the Ombudsman Association.

At levels three and four, complaints about legatly protected rights may betaken outside the company to mediation or arbitration at the request of thecomplainant. For legally protected rights, the administrator can arrange, ifneeded, for some reimbursement of legal consultation for the complainant. In

Dispute Resolutionin the Non-union Envikmment 97

the usual case the company pays most of the costs of legal consultation, up to$2,500. Imposed arbitration is a condition of empIoynent for disputes thatmight othetwise go to court, although anyone at Brown & Root is free to con-suit with or appeal to any relevant government regdatoty body. Arbitratorsare empowemd to provide any award that might be sought through the courtsystem. They are assigned through private justice providers.

Statistics are not kept about use of the system at level one. The programadvisers and administrators ded with about 500 cases a year, and I or 2 per-cent go to arbitration. (Brown & Root has lost and won cases-an out-comethat I feel speaks well for the DRP.) A few employees have appealed to one oranother government agency. Concerns that go to an adviser or administratorare monitortd intemaIly by the program office to be sure that they areaddressed promptly about 70 percent are. resolved within one month. Theprogram office also serves the company by keeping statistical data about prob-Iems brought to the advisers and program administrators. Program adminis-trators may recommend systems change in the company and there have been anumber of changes because of information brought fonvard to the DRP. Thecompany reports that its legal expenses am sharply reduced. The company hascommissioned several evaluations of the system.

I have some concerns about the design. I believe that an organizationalombudsperson should be designated as such and should report to the CEO orCOO rather thah to human mources; the position should stand apart fromordinary lines of supemision. I would have recommended much stronger em-phasis at the program office level on helping peopIe with problems helpthemselves. There should perhaps be mo~ training for supemisors and em-ployees on this option, and also further development within the program of theuse of generic options. I might have recommended building in more capacityto deal with group conflict, and a stronger emphasis on serving managers withprobIems as well as employees. I prefer to see the possibility for disputants tohave some input into the choice of an outside neutral. The usage rate is some-what low, compared with other programs I have sumeyed. I would like to seethe program coIIect data on use of the system at level one, so the overall usagerate can be better assessed. 1 strongly recommend against requiring imposedarbitration as a condition of employment and hope that the DRP will change inthis respect.

On the other hand, the DRP has great strmgths. It reflects the interests ofat least some stakeholders since management feeIs the DRP “fits” its environ-ment. The DRP can be seen as a simple, easily understood, cost-effective pro-gram. It is a multiaccess, multioption system with an unusual degree ofintegration. In most respects it meets the specifications for a system discussedabove. It is important that within the pwcbtay arbitration stmcture there isaffirmation for the rights of employees and managers to appeal to governmentregulatory bodies, for example on civil rights cases. It is also important thatwhen people have in fact appealed outside the company, Brown & Root hascooperated with the agency involved and has sought to settle cases rather thanpush the issue of imposed arbitration. The program provides a high degree offlexibility both for people with problems and for management. The excellent

98 Mmy RO we

emphasis on training of all supervisors provides a powerful scaffolding for thesuccess of the program. Brown & Root has been open about its program, andhas provided a great deal of information to many outsiders. The DRY is underconstant scrutiny from inside and outside, which provides a strong basis forcontinuous improvement.

VII. Suggestions for Future Research

Workplace dispute resolution in the nonunion sector of North America ischanging swift~y. There are many reasons for nonunion employers to be inno-vating in this area, and their innovations are varied. Some empIoyers are ex-perimenting with a systems approach to conflict management that goes farbeyond a single grievance procedure. A systems focus represents an important,user-oriented improvement in conflict management that gives complainantsgreater flexibility and more options, particularly at the early stages of a con-flict.

Research as to the effectiveness of specific innovations, and of a systemsapproach, is very much needed. For example, we need to know more aboutoptions people would choose under conditions of choice, and then how theywould evaluate the choices they have made. We also need to know how re-spondents and supervisors and top management assess each option. This in-formation would be most helpful if we had data for men and women, people ofvarious ethnic backgrounds, managers as well as employees, people in teamsand those working in hierarchiti, those in small establishments and large, lo-caI establishments and multinational companies, organizations with a verystrong culture and those that appear impersonal, stable establishments andthose with high turnover, and for organizations with different worMorcecharacteristics.55 We know almost nothing about small informal systems insmall companies and how people perceive them. We know little about the in-tegration of internal systems with the external environment-for example,about the impact of different state laws.

It is not easy to address these questions. It would make sense to continuebuilding a widely understood glossary of terms, and then continue to build ataxonomy of conflict management characteristics and functions, as 1 have triedto do here-f “specifications” for effective conflict management systems. Us-ing such a taxonomy one may then see which structures appear in which kindsof organizations, describe them, and then evaluate them. Simultaneously weneed to work on developing appropriate evaluation protocoIs. Case studieswith respect to any of these questions will contribute greatly.

Notes

1. AIternative+r appropriate-dispute resolution (ADR) means differentthings to different people. In the widest, technical sense I prefer to use the termto describe any kind of mechanism inside or outside a workplace that seeks tosettle problems primarily on the basis of the in#enWs of the disputants ratherthan on the basis of rights and power. In the United States in the 1990s, how-ever, the word has largely been taken over by lawyers to describe narrowly

Dispu!e Resolution in the Non-union Lhw”ktmment 99

based efforts to deal with commercial and employment disputes that am notbeing settled among the disputants and are otherwise on their way to thecourts. I view this development as unfortunate since many people have come tounderstand ADR onIy in terms of specialized mechanisms at the edge of theworkplace rather than as “appropriate dispute resdution’’-the foundation ofsystems design that includes many kinds of options within a workplace.

2. See for example ah article by H. A. Simon and Y. Swhynsky, “In-HouseMediation of Employment Disputes: ADR for the 1990’s.” LlnpIoycz RelationsUW journal 21, no. 1 (summer 1995): 29–51, which used the title term‘mediation” to refer to an extraordinary spectrum of informaI and formal,interest-based and rights-based dispute resolution techniqu~ inside and out-side the workpIace.

3. J. DeIaney, D. Lewin and C. Ichniowski, “Human Resoume Policies andPractices in American Firms.” BuremJ of Labr-Mmagement ReIations, no.137, 19s9.

4. U.S. General Accounting Office, Emplo~ent Discn.mination, RepxtHEHs-95-I 50 (July 1995), 3; and Organizational Resources Counselors, Inc.,“Prelimina~ Results of an ORC Survey on the use of ADR in Employment Re-lated Disputes,” Unpublished paper, November 1994.

5. A good contemporary ovemiew of these concerns may be found in FLEdwards, R@hts d Work (New York The lMentieth Century Fund, 1993). Seealso L. B. Edelman, H. S. Erlanger and J. I.mde, ‘{Internal Dispute Resolution:The Transformation of Civil Rights in the Workplace,” Law and bcie~ Renew27, no. 3 (1993): 497-534.

6. D. H. Ixtch and P. A. Gwartney-Gibbs, “sociological Perspectives on Sex-ual Harassment and Workplace Dispute Resolution,m Jounml of VxationalBehawor 42 (1993): 102-15; P. A. Gwartney-Gibbs and D. H. bch,“Workplace Dispute Resolution and Gender Inequality,” Negotiaz50nJoumal7,no. 2 (April 1991): 187–200; and P. A. Gwartney-Gibbs and D. H. Lath,“Sociological Explanations for Failure to Seek Sexuid Harassment RemediesflMedation QutierIy 9, no. 4 (summer 1992): 365-73, for detailed discussionof the differential needs of women complainants. See aIso M. P. Rowe, meCase of the VaIuabIe Vendom, Subtle Discrimination as a Management Prob-lem,” H~adBusiness Renew 56, no. 5 (Septembe-ctober 1978): 4047,and M. P. Rowe, “Dealing With Sexual Harassment,” Hwd BusinessRew-ew59, no. 3 (May–June 1981): 42-47.

7. M. P. Rowe, “PeopIe Who Feel Harassed Need a Complaint System withBoth Formal and Informal Options,” NegotiationJounud 6, no. 2 (April 1990):16 1–72; and M. P. Rowe, “Options and Choice for Conflict Resolution in theWorkplace,” in Negotiation: Strategiesfor MutuaI Gain, d. L. Hall ~ousandOaks, Calif.: Sage PubIiCations, Inc., 1993), 105–19.

100 Mq Rowe

8. I use the term complainant throughout this chapter to mean someonewho perceives a problem, or who wishes to complain.

9. I have been an o~anizational ombudsperson for twenty-five yars andalso teach negotiation and conflict management at the MIT Sloan School ofManagement. My own perspective is therefore that of a practitioner who hasdealt with many thousands of persons involved in disputes, and from being aprofessor of negotiation.

10. D. Ewing, Justice on the Job (Boston: Hamard Business School Press,1989).

11. See for example, D. M. McCabe and D. Lavin, “Employee Voice: A Hu-man Resource Management Perspective,” Ckfifiomia Management Rem-ew(spring 1992): 11 2–23, who cite union avoidance as a major reason for therise of nonunion grievance procedures.

12. Many authors cite the statutory establishment of individual rights, suchas laws which prohibit discrimination and harassment, regulate safety, pensionplans, plant cIosings, and family and medical leaves, as major incentiva to-ward the establishment of complaint systems. Courts have also expanded re-strictions on wongful dismissal, for example, discharge contra~ to publicpolicy, discharge which violatm the concept of good faith and fair dealing orwhich is contrary to an implied contract such as an employee handtmok. Someregulations, such as the Federal Sentencing Guidelines, also strongly encouragethe establishment of complaint mechanisms. Some regulations which prohibitdis-crimination require complaint mechanisms.

13. A. F. Westin and A. G. Feliu, “Resolving Employment Disputes WithoutLitigation” (Washington, D.C.: Bureau of National Affairs, 19S8).

14. W. L. Bedman, “From Litigation to ADIC Brwvn & Root’s Experience,”Dispute ResoIufionJournal 50, no. 4 (Octobe~December 1995): 8-15. Theother articles in this issue on employment ADR are also instructive.

15. J. T. Ziegenfuss, Oqanizafional Tmubk.shmfe~ (San Francisco: Jossey-Bass, 1989).

16. R lL Blake and J. Stygley Mouton, Sohing L%sflyO~ani~fionaI Cbn-flicfs (San Francisco: Jossey-Bass, 1985).

17. D. M. McCabe, C@orafe Non-union CbmpIlunt Rzcedures and Systems(New York Praeger Publishers, 1988).

18. W. L. Ury, J. M. Brett, and S. B. Goldbeqg, Getiing Disputfl Re-wived(SanFrancisco: Jossey-Bass, 1988). J. M. Brett, S. B. Goldberg, and W. L. Ury,

Dispute Resolution in the Non-union Enn)vnment 101

“Resolving Disputes: The Strategy of Dispute Resolution Systems Design,” Busi-ness Week,Executive Briefing Service 6 (New York: McGraw Hill, 1994).

19. Brett, Goldberg, and Ury, “Resolving Disputes.”

ZO. Edwards, R&hts at Work

21. See for example, D. Lewin, “Grievance Procedures in Nonunion Work-places: An Empirical Analysis of Usage, Dynamics and Outcome+” Chicago-Kent Law Renew 66, no. 817 (1990): 823–44, and D. M. McCabe, and D.Lewin, “Employee Voice: A Human Resource Management Perspective,” Crzli-fomia Management Retiew (spring 1992): 112-23.

22. Edelman, Ehrlanger and Lande, “Internal Dispute Resolution: The Trans-formation of Civil Rights in the Workplace.” Also see McCabe and Lewin,“EmpIoyee Voice.” This article expm.sses extensive concern that in the processof meeting management interests such as peace in the workplace, appearing toconform to civil rights law and regulation, and avoiding Iawsuits, the civilrights of employees are actually subsumed and are likely to be undermined.

23. Significant differences in perspectives on ADR exist between some exter-nally-oriented lawyers and some conflict managers internal to organizations.The concept of ADR, that is, altemati~edispute resolution, prevalent amonglawyers and arbitrators usually refers to processes that lie at the edge or out-side the workplace, such as extemaI mediation and arbitration. Some of theseprocesses require the assistance of Iawyers. The perspective of those who aregenerally unfamiliar with internal dispute resolution methods is in markedcontrast with that of internal conflict management specialists. DR specialistsinternal to the workplace typically think of ADR as appxwpmatedispute m-solu-tion: a broad and varied set of options for dispute resohdion that can be usedboth inside and outside the workplace.

24. Note the Center for Fublic Re.sources Institute for Dispute Resolution,ModeIADR ~edures and~acfices, 1995. The final draft (July), recommendsin section one that mediation and arbitration procedure might be added ontoan internal system that provid~ a variety of internal mechanisms.

25. See L. J. Marcus, Renegotiating Health Cam: ResoIv@ tinffict to Buildtillaboration (San Francisco: Jossey-Bass, 1995), and K. A. Slaikeu, ‘DesigningDispute RmoIution Systems in the Health Care Industry,” NegotiationJouznal5, no. 4 (October 1989): 395-400.

26. C. A. Costantino and C. Sickles Merchant, Des&ning Cbnf7ictManage-ment S@tems (San Francisco: Jossey Bass, 1996).

27. M. F. Rowe and M. Baker, “Are You Hearing Enough Employee Con-cerns?” Harvati BusinessReview 62, no. 3 (May-June 1984): 127–36; M. F.

102 May Rowe

Rowe, “The Non-Union Complaint System at MIT An Upward-Feedback Me-diation Model: in Re.wlwhg Ernploflent DisputesWithoutGti=gation,eds.A.Westin and A. Feliu (Washington, D.C.: Bureau of National Affairs, 19S8); M.P. Rowe, “Organizational Response to Assessed Risk A Systems Approach toComplaints,” in IZwgramReconfof the 1988 Instituteof EIecL+czdandEIec-tnmi~ Engini=rs, Inc. EIectru 1988 Cbnfenmce,RiskAssessmentand Respnse(Boston, IEEE,Inc., 1988); M. P. Rowe, me Post-Tailhook Navy Designs anIntegrated Dispute Resolution System,” Negotiation JoumaI 9, no. 3 (July1993): 203-13.

28. In my first year at MIT, working together with others, I compiled a list ofhundreds of concerns expressed by women, by people of color, and by whitemales. Many concerns affected white males, who in addition brought fonvardconcerns of their own, but some problems appeared especially to af-feet thenontraditional members of the community. See also P. A. Gwartney-Gibbs andD. H. Uich, “Workplace Dispute Rescdution and Gender Inequality,”Negotiation Jouzmzl 7, no. 2 (April 1991): 187-200, and Lewin, “GrievanceProcedures in Nonunion Workplaces.” I found that some concerns of womenand minorities, such as subtle discrimination, did not lend themselves to tradi -tional formal grievance procedures. Furthennom, some people simply did notlike formaI grievance procedures. These findings led to consideration of newoptions for complainants. See M. P. Rowe, aBarriers to Equality the Power ofSubtle Discrimination to Maintain Unequal Opportunity,” EmployeeResponsi-bilities and R&htsJournd 3, no. 2 (1990): 153–63, and M. P. Rowe, ‘HelpingPeople Help Themselves: an Option for Complaint Handlers” NegotiahonJour-na16, no. 3 Uuly 1990): 239--48.

29. For most problems in the present day MIT, where having a choice of dis-pute resolution options is the norm for everyone (for problems that are notillegal in nature), most men and women want to discuss their options atlength. Many complainants demonstrate in conversation that their choice ofoption depends on an assessment of the characteristics of the immediateproblem and situation, the setting, the supervisor and the respcm -dent, andtheir own personal preferences in dispute resolution.

30. The word redundancy has an unfortunate connotation in general speechbut among engineers it is an impofint concept. If an engineering system’ isimportant, it needs backup, checks and balances, and devices for fail-safe op-eration. By extension, if a person has a serious problem or complaint, theremay be a need not just for one option but for several.

31. See for exampIe, C. Moore, “Dispute Resolution Systems Design”(ResoumeMmuab (Boulder, Colo.: CDR Aswiates, 1995); the work of K.Slaikeu and IL Hasson of Chorda Associates in Austin, Texas; and Costantinoand Merchant, Dew>ning Cbnf?ictManagement Systems.

Dispute Resolutionin theNon-union Envilunment 103

32. SeeR. E. Walton, J. E. Cutcher-Gershenfeld, and K B. McKersie, StrategicNegoti~tions (Boston: Hamard Business School Press, 1994).

33. Except as noted, this list comes from analysis of many hundreds of con-cerns a year over the past twenty-five yearsin my office as an ombudsperson.See Rowe, “PeopIe Who Feel Harassed.”

34. The fear of loss of relationships might be, at an extreme, defined as a fearof reprisal. But this concern goes far beyond what is ordinarily meant by re-pnsa[. It includes an interest in harmony, in t~m spirit, in humor, and feIIowfeeling in the workplace. It aIso includes a very common fair of disapprovalfrom family and friends and colleagues outside the workplace. It is commonlythought that fear of Ioss of relationships is felt most strongly by men andwomen of cetiain ethnic backgrounds, and by white women. See for example,the remarkable article by S. Riger, “Gender Dilemmas in Sexual HarassmentPolicies and Procedures,” A.me~2an Psychologist46 (199 1): 497-5o5. How-ever I frequently hear the same concern from white males, though sometimescast in different terms.

35. See S. E. Gleason, me Decision to File a Sex Discrimination Complaint inthe Federal Government,” tidings of the 36th Annual Meeting of the In-dustnai Relations Reseamh Association (San Francisco, Industrial RelationsResearch Association 1983), 189-97, for a sensitive evaluation of the intangi-ble as well as tangible costs to women for using a formal procedure.

36. Lewin, “Grievence Prmedures in Nonunion Workplaces,” 831.

37. Customers, vendors, and employers entering into partnering relation-ships are outside the scope of this papr, but it is of interest that the same kindsof innovations in conflict management have entered these relationships. See forexample Brett, Goldberg, and Ury, “Resolving Disputes.”

38. An exampIe would be where someme has repeatedly asked a coworker toend offensive behavior, then despairs of classic mediation, and decides to makea formaI complaint.

39. See L@, Brett, and Goldberg, “ResoIving Disputes;’ who originality pro-posed the term Ioopback, to refer to a shift from a rights-based to an intereQ-based option. An example would be to shift from a formal, win-lose grievanceprocedure to formal mediation.

40. M. P. Rowe, “The Corporate Ombudsman: An Ovetiew and Analysis,”Negotiation Joumaf 3, no. 2 (April 1987): 127-40; M. P. Rowe, ‘The Om-budsman’s Role in a Dispute Resolution System,” Negotiatim Journal 7, no. 4(October 199 1): 353–6 1; M. P. Rowe and J. T. Ziegenfuss, “Corporate Om-budsmen: Functions, Caseloads, Successes and ProbIems~ Journal of Hdthand Human Resomtxs Administration 15, no.3 (winter 1993): 261-80; M. P.

104 Mm Rowe

Rowe and J. T. Ziegen@ G. Hall, A. F’erneski, and M. Lux, “Perspectives onCosts and Cost Effectiveness of Ombudsman Frograms in Four Fields,” Journalof Health and Human ResouEesAdministration 15, no.3 (winter 1993): 281–312; M. P. Rowe, “An Ovemiew of Client and Internal Ombudsmen,” Journalof Hdth and Human A?esouzmsAalninishztion 15, no. 3 @inter 1993): 259–60; M. P. Rowe, “Options, Functions and Skills: What an Organizational Om-budsperson Might Want to Know,” Negotiation Joumaf 11, no. 2 (April1995):103-14.

41. In many o~anizations, human resource managers and equa[ oppmtunityspecialists work hard to maintain privacy. However, Human Resources andEqual Employment Opportunity managers are aIso compliance officers andtherefore cannot offer a high degree of confidentiality to complainants. See, forexample, the important concern expressed on this point by IMelman, Erlanger,and Lande, “Internal Dispute Wolution.n In some organizations EmployeeAssistance Program and other health care practitioners may lx also required tokeep rtcords and/or may be subpoenaed in cases that go outside the work-place, Ombudspeople, by contrast, typicalIy keep no records for the employer.Contra~ to the widespm-ad misunderstanding of many writers, organizationalombudspeople are not adjudicators or formal investigators. They typically ref-use to testify in any formal proceeding in or out of the workplace, for the em-ployer or for anyone eIse. The several thousand organizational ombudspeoplein North America are conflict management professionals, designated as neu-trals, who have all the functions of any complaint handler except that of for-ma[ investigation and adjudication. They offer confidentiality under all butpotentially catastrophic circumstances. See also C. L. Howard and M. A. Gul-Iuni, 7%e Ombu& CbnfidentiaIiiyWnlege (DalIas: The Ombudsman Associa-tion, 1996).

The su~ey by Organizational Resourcu Counselors, Inc., of New YorkCity, op. cit., found the most popular nonunion dispute resolution devices in agroup of forty-five companies were an ombudsman office and a peer reviewsystem. Unpublished testimony submitted to the Commission of the Future ofWorker-Management Relations, (Dunlop Commission), 1994.

42. Although job assignments am typically not considered disciplinary ac-tion, an employer should carefuIly consider the fairness of moving a com-plainant or respondent who does not want to be moved.

43. A few organizational ombudspeople do occasionally act outside their or-dina~ role and agree to do formal investigations for the employer for the pur-pose of adjudication. Some ombudspeople have served as formal obsewers ofthe fairness of an adversarial hearing process. On the basis of consultationswith several hundred practitioners, I believe that in such circumstances theyshould write a memo to the file noting the exception from ordinary practice.With respect to such exceptions they should not expect to be shielded from asummons to testify in formal hearings inside or outside the organization, al-

Dispute Re.wIutionin the Non-union Envirunment 105

though they should attempt to preseme the privacy of anyone who has giveninformation.

44. See Blake and Mouton, Sblving Cbstfy Oqg~~zMional CimTicts, for anexample of an excellent model for intergroup faclhtation and conflict man-agement.

45. See ibid. for an example of an exceIlent model for such action betweengroups.

46. My research indicates that about a third of the working time of organ-izational ombudspeopIe is spent on systems change.

47. Rowe, “Helping People Help Themselves.”.

48. See IL L. Hutchins, Repn-~~ Retaliation and Rednxs, (Dallas: The Om-budsman Association, 1996).

49. Some lawyers wish that employers would adopt all the safeguards of dueprocess in law for internal workplace dispute resolution. Few employers agree.My list of elements of fair process does however include many of the custom-a~ elements of due prcmss.

50. See Ewing, @stice on theJob, for a description of such structures.

51. See J. W. Zinsser, %e Perceived Value of Considered Approaches to In-ternal Conflict Within Organizationsfl (Masters Thesis, Antioch University,1995) for evidence that imposed arbitration was seen within one firm as notadding value to the dispute resolution process.

52. See for example, Bureau of National Affairs, ‘A Due Process Protocol forMediation and Arbitration of Statutory Disputes Arising out of the EmploymentRelationship,” Employment Discrimination Report (May) (Washington, D.C.:Bureau of NahonaI Affairs, 1995).

53. The constmction company Brown & Root offers to pay a substantialamount of an employee’s legal fees, for consultation about legally protectedrights and for accompaniment to arbitration, but most nonunion employers donot pay such costs.

54. See Bedman, “From Litigation to ADR,” and J. Zinsser, “Employment“Dispute Resolution Systems: Experience Grows but Some Questions Persist,”Negoti~tion Journal 12, no. i! (April 1996): 145–58, for longer presentationsabout the Brown & Root DRP.

55. Some of these questions maybe answered by a 1997 survey conducted byDavid B. Lipsky and Ronald L. Seeber of the Cornell FERC Institute on Conflict

106 May Rowe

Resolution. The survey is focused on dispute resolution techniques being usedin the 1000 largest corporations in the United States.