towards mediation

8/8/2019 Towards Mediation

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Towards mediation: developing a theoreticalframework to understand alternativedispute resolution

Paper to: British Academy of Management, 14th-16th September2010, Sheffield University

Dr Rory Ridley-Duff and Dr Anthony BennettSheffield Business School, Sheffield Hallam University

Full Paper Available: http://shura.shu.ac.uk/2617/

Corresponding author: [email protected]
http://shura.shu.ac.uk/2617/mailto:[email protected]:[email protected]:[email protected]:[email protected]://shura.shu.ac.uk/2617/


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Introduction

Why this paper?

Defining and contextualising ADR

The implications of findings fromexisting research

A theoretical framework for futureresearch (and teaching)


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History of the paper

Mediation short course (2007) at SHU

Background paper written by Rory Ridley-Duff for workshopparticipants.

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 peer-review.


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Context of interest in ADR

Employment Act 2002 (DisputeResolutions) 2004 Regulations

Introduced statutory discipline and grievanceprocedures.

Employment tribunals rose 45% in next 4 years.

Gibbons Report (2007) recommended repeal of

the statutory regulations and a new emphasis onmediation.

Statutory D&G procedures were repealed in 2009.

Mediation guidance issued by the CIPD / ACAS.


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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 (Blytonand Turnbull, 2004)


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Perspectives on conflict

Ideology Lukes (1974) on power Fox (1985) on conflict

Unitarist Hegemonic power: Institutions,management processes andoutcome evaluation are undermanagement control.

Conflict is irrational:Due to poor communication bymanagers, or deviant / subversivebehaviour by employees.

Pluralist Agenda setting power:Managers control theorganisational agenda. Proposalsand decisions (but notmanagement control) can bechallenged.

Conflict is rational:Group interests diverge. Institutionsand procedures are needed tomanage, and mitigate the effects of,conflict.

Radical Open conflict:Management control / powernegotiated in democraticinstitutions charged with ensuringequitable distributions of power.

Conflict is creative:Symptom of contradictions in asocial system. Precursor totransformative change.


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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).


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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 (Bushand Folger, 1994; Mareshcal, 2003).


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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)


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Existing research findings

USPS REDRESS Programme

Disputants control who represents them (and supports thosewishing to represent themselves).

High satisfaction levels on procedural justice (91% withinternal mediator, 96% with external mediator)

High satisfaction with outcomes (74% with internalmediators, 80% with external)

Tribunal claims dropped from 14,000 to 10,000 in USPS inthe first 2 years of the scheme.

Butfailed to compare satisfaction levels with thoseachieved through court hearings / adversarial processes.

Bingham and Pitts (2002)


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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 betweenone and five times in the previous year.

Not just an early resolution measure - it helped in intractabledisputes that could not be resolved in other ways.

Still a lack of large scale research, not least because take upand usage is low.

Acas (2005, 2008b)


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Theory Development

Authority driven approach (D&G) Evaluation of 'facts' against a normative framework of 'rights'.

Process adopts rationalist philosophical assumptions in anevaluation 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 tounderstand the impact of constructed realities.

Encourages a collaborative response (Bradfield and Aquino, 1999).


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Theory Development

Caution regarding mediation

"there may well be a role for mediation but it needs to berecognized that disputes in the employment context may differfrom 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)


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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 thepowers 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)


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Theoretical Framework

Litigation Arbitration ConciliationDirectiveMediation

FacilitativeMediation

TransformativeMediation

Rigid Authority Relations Flexible (Dynamic) Authority Relations

Unitary Ideology Pluralist Ideology Radical Ideology

Management Prerogative(interpretation, no negotiation)

Distributive Negotiation(negotiate distribution of benefits)

Integrative Negotiation(negotiate interests and values)

Experience Driven(Legitimation ofperspectives)

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 ofdivergent norms)

Win-Lose(Promotes Hegemony)

Compromise(Constrains Hegemony)

Win - Win(Promotes Democracy)

Authority Driven(Evaluation of facts

and arguments)

Interest Based Bargaining (IBB) and Negotiation (IBN)


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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 explorationsof experience, rather than normative controls.

Is part of an approach that supports the advancement of participativedemocracy 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 fordispute resolution.


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Implications

Paper offers a meta-theoretical framework forresearch 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.


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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 NationalREDRESS 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).
http://www.acas.org.uk/media/pdf/f/I/Research_Paper_05_05.pdfhttp://www.acas.org.uk/http://www.acas.org.uk/http://www.acas.org.uk/media/pdf/f/I/Research_Paper_05_05.pdf


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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, inMediation 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.
http://consensus.fsu.edu/epp/hammers.pdfhttp://consensus.fsu.edu/epp/hammers.pdf

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