28 - Mediation - Development A Theoretical Framework (BAM Submission)
28 - Mediation - Development A Theoretical Framework (BAM Submission)
28 - Mediation - Development A Theoretical Framework (BAM Submission)
This document is the author deposited version. You are advised to consult the
publisher's version if you wish to cite from it.
Published version
RIDLEY-DUFF, R. J. and BENNETT, A. J. (2010). Mediation: developing a theoretical
framework for understanding alternative dispute resolution. In: British Academy of
Management, Sheffield, 14 - 16 September 2010. (Submitted)
Corresponding Author:
Rory Ridley-Duff
Sheffield Business School
City Campus, Sheffield Hallam University
Stoddard Building
Howard Street
Sheffield
S1 1WB
E-mail: r.ridley-duff@shu.ac.uk
Track
Human Resource Management
Word Count: 6,596 (excluding Appendices and References)
Introduction
This article explores theories of, and research findings on, mediation by examining its recent
development in the UK and US. The authors will argue that there are both practitioner and
political implications that arise from the deployment of mediation as a dispute resolution
strategy. Consequently, the article makes a contribution to knowledge by explicating the
assumptions that underpin alternative dispute resolution strategies, and locating mediation as
a strategy for the advancement of democracy in the workplace.
The Employment Act 2002 (Dispute Resolution) Regulations 2004 were established
by the UK Government with the intention of establishing best practice on HRM and halting
the rising number of employment disputes. When the regulations not only failed to stem the
rising number of employer-employee disputes, but were linked to further rapid increases
(Griffith, 2007), the Government commissioned further research to consider alternatives. The
Gibbons report signalled the UK Governments intention to repeal the 2004 regulations and
increase the use of mediation as a dispute resolution strategy to reduce the burden on the
employment tribunal system (Gibbons, 2007). In response to the report, ACAS and the
Chartered Institute for Personnel Development (CIPD) have produced guidance to coincide
with the repeal of the 2004 dispute resolution regulations on 6th April 2009.
Mediation is one of several Alternative Dispute Resolution (ADR) strategies that
ACAS began evaluating after recommendations were published by the Employment Tribunal
and Better Regulations Taskforces in 2003. It first gained a profile when it was introduced
into family disputes twenty five years ago (Kelly, 2004). More recently, this interest has been
strengthened by new works on restorative justice that argue that social justice can be achieved
for both victims and falsely accused persons through reconciliation processes that avoid
punitive sanctions. Over time, restorative justice and mediation have gained a reputation for
effectiveness in situations where issues are emotionally complex (Roche, 2003).
A mediation service has developed in the US where it is now claimed to be the leading
dispute resolution method for the public sector (Mareschal, 2003). Unlike the UK, where
statutory interventions still focus on advice, arbitration and conciliation (at ACAS), the US
has developed a separate agency that focuses primarily on mediation (the Federal Mediation
and Conciliation Service). This service developed it reputation through the provision of
mediators to the United States Postal Service (USPS) after the courts imposed compulsory
mediation on USPS to ward off a class action for racial discrimination in 1994. The scale and
rigour of the USPS programme has provided an opportunity to conduct large scale research
into the nature and effectiveness of mediation.
This paper develops theory that relates dispute resolution practices to philosophical
perspectives on authority, knowledge and power. In the first section, the authors define
conflict and its effects, as well as perspectives on conflict that inform employee relations. In
the course of this debate, conciliation, arbitration and mediation are distinguished. The next
section examines different types of mediation and explores differences between the dominant
approach in the UK based on facilitative mediation and the US approach based on
transformative mediation. The main body of the paper considers the philosophical
underpinning of different approaches, and compares them to authority-driven approaches.
Their effectiveness is discussed with reference to the findings from large-scale programmes of
mediation research in the US. After presenting a theoretical framework that locates mediation
as a radical management practice, the paper outlines key criticisms of mediation and critically
reviews the implications for practice.
Perspectives on Conflict
In order to develop theory on conflict resolution, it is valuable to consider the nature of
conflict itself. Huczynski and Buchanan (2007: 764) offer the following definition:
[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.
Blyton and Turnbull (2004) concur with this view of absenteeism and turnover as
elements of unorganised conflict. Other examples include spontaneous acts of sabotage or
violence. Sabotage is a form of covert conflict and can vary from physically disabling the
means of production to purposively holding back valuable information. Violence, on the
other hand, is overt conflict where disempowerment leads to physical or verbal acts of
aggression towards a manager, subordinate or co-worker.
Conflict resolution strategies, therefore, need to cope with a wide range of situations,
involving conflicts over alleged actions, perceptions and beliefs, with patterns of conflict that
are covert or overt, and enacted through passive or active aggression.
The decision as to which type of alternative dispute resolution may be utilised can
depend on the type of dispute, the stage of the dispute and, crucially, what type of resolution
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Gaynier (2005), whilst criticising the strident way Bush and Folger have promoted
their transformative mediation model, nevertheless charts its heritage in Gestalt theory.
Transformative mediation, she argues, has a solid theoretical base that is shared with other
therapeutic approaches and takes a holistic rather than narrow view of 'problems'. It has a
similar commitment to personal empowerment. Transformative mediation shares some of
Lukes assumptions about open conflict, in that there is an expectation of transformative
change at both the personal and relational level. The focus on relationship issues, however,
has been criticised as inappropriate for all situations. Mareschal (2003: 443) argues that
deploying both problem-solving and transformative approaches (a bifocal approach)
concurrently can be more effective.
There is, however, a deeper underlying difference between the UK and US
conceptions of mediation. In the UK model, the mediator regardless of a directive or
facilitative brief - is seen as a party that controls the process while the disputants control the
outcome (ACAS, 2005). In the US model, the problem-solving approach is associated with
active interventions by the mediator (to facilitate an outcome), while the transformative
emphasises the mediator's role is helping disputants control both the process and outcome.
The transformative approach (see Appendix A) can be seen as a departure from the UK model
(see Appendix B) by insisting that the disputants decide the rules of the game (the means by
which they will reach the outcome) as well as the outcome itself. In contrast, the UK model
focuses very much on how the process is to be facilitated in order to deliver outcomes
generated and agreed by the disputants. Crucially, the focus is also on the skills and qualities
needed by the mediator to achieve this end.
Research in the UK
As yet there remains a paucity of research studies on the practice of workplace mediation in
the UK. Findings so far suggest that, from a management perspective at least, mediation is
seen as a potentially valuable alternative dispute resolution tool. However, the majority of
practitioners questioned have only limited knowledge of the process, with only a minority
having utilised it on anything like a regular basis (ACAS, 2005; CIPD, 2007, 2008; Johnston,
2008).
A newer survey by ACAS (2008) of 500 SMEs largely supports the earlier findings,
but also finds that the views of managers in SMEs portray a mixed picture (ibid.:10). Only
7% of the respondents had used mediation, whilst 56% had heard of it but not used it. A large
majority thought it sounded like a good tool for resolving disputes in the workplace, and that
its wider use could reduce employment tribunal claims. However, two in three thought it
should be used as a last resort, and many viewed the process as expensive. Interestingly, the
majority of managers thought that meditation was more suited to larger organisations. These
perceptions have some resonance with research by the CIPD (2007) on conflict at work. They
report that organisations of over 500 employees train more staff in mediation skills, and that
mediation is used more extensively in the public than the private sector. The CIPD report
supports ACAS findings that fewer organisations in the SME sector are disposed to using
internal mediation.
The most comprehensive survey carried out so far by the CIPD (2008) suggests that it
is being used more frequently, particularly by large and public sector organisations, and that
the facilitative model (see Appendix B) is the main model in use. Based on the responses of
766 organisations, 327 were currently utilising mediation, and two out of three respondents
said that their organisation had used mediation between one and five times in the last year.
Furthermore, half the respondents reported using mediation more than three years ago. While
smaller than the US studies, it can be argued that these findings suggest mediation is
beginning to develop into a significant vehicle for dispute resolution in the British workplace.
Unitary Approaches
Litigation
Arbitration
Pluralist Approaches
Conciliation
Directive
Mediation
Authority Driven
(Evaluation of facts and arguments)
Law is the highest authority
(Pursuit of best practice )
Facilitative
Mediation
Transformative
Mediation
Experience Driven
(Legitimation of perspectives)
Radical Approaches
(Constrains Hegemony)
Win Win
(Promotes Democracy)
Bradfield and Aquino (1999) studied factors that lead people to blame and forgive
other people in disputes, in particular the likeableness of the other party. In their results, they
found that people often consider 'forgiveness' as a strategy, but that they are inhibited from
acting on their feelings. Strong support for this comes from Huang's (2006) study comparing
Western and Asian approaches to dispute resolution. Viewed from a Chinese perspective,
Huang (2006: 307) comments:
With [Western] insistence on beginning with abstract premises about rights, and of subsuming
all legal decisions by deductive logic under such principles, formalist legal system can drive
almost all disputes into an adversarial framework of rights violations and of fault, even when
neither party is at fault or when both parties would prefer a compromise resolution.
Moreover, Bradfield and Aquino (1999) found that a blame mentality is not something
that necessarily surfaces quickly in workplace situations: it develops slowly as the meaning of
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In their view, mediation is itself a strategy that makes it possible for people to enact
'forgiveness' by creating an environment in which it can be explicitly considered by both
parties (and compared to the alternative revenge strategies). This materially changes the
outcomes of some conflicts.
There are, however, limits to what mediation can achieve. While a focus on
relationship issues can promote understanding and reconciliation (Tjosvold et al., 2005), it
can only do so if both parties are open to the possibility of resolving their differences. Based
on a study of governance, Ridley-Duff (2006:17) supports Tjosvolds view that conflict
resolution focused on relationship issues can produce closer relationships, but he recognises
limitations based on the disposition of the individual toward the future of the relationship.
co-operative approaches to dissonance resolution (conflict) lead to closer and improved
relationships. Unlike Tjosvolds model, however, the relationship context and each partys
future intentions inform whether people are likely to approach the conflict co-operatively or
competitively. This limits the applicability of Tjosvolds findings
In this section, the authors have discussed criticisms of mediation from two key
perspectives: firstly, from the perspective of public authorities keen to defend representative
democracy; secondly, from the perspective of public accountability. In response, mediation
was located within the tradition of direct, rather than representative, democracy, while a
public interest case exists when outcomes, rather than transparency, forms the basis of the
argument. At a deeper level (see Figure 1), authority driven processes were theorised as a
product of an objective ontology, in which knowledge is used to promote normative forms
of governance. Mediation, on the other hand, was located in subjective knowledge that
elevates (even celebrates) difference, and the notion of equity between the disputing parties.
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Conclusions
This paper has set out a number of contexts and perspectives on conflict, and shown how
dispute resolution strategies are influenced by perspectives on the nature of the employment
relationship. The idea that mediation should be used early in disputes to prevent escalation is
only partly supported by existing research findings. ACAS (2005) found not only that
mediation can be used early on, but also that the most intractable disputes often benefited
from mediation. Sometimes mediation succeeded when all other approaches had failed.
Nevertheless, family mediation research shows the reverse is also true: mediation cannot
address all (perceived) conflicts of interest and that recourse to courts is still needed as an
option. Interestingly, mediation could be used to resolve some parts of a complex conflict,
while accepting court rulings on some matters. The so-called bifocal approach, therefore, has
something to offer practitioners.
Inevitably, there is a difficult question of the contexts in which mediation may succeed
or fail. The factors affecting this are complex and beyond the scope of this paper. However,
it is possible to argue that solutions may lie both in the immediate issues of the situation (and
amendable to a problem-solving approach) or be more deeply embedded in attitudes to
authority (amendable to the transformative approach). Mediation can, ironically, help to
establish what can and cannot be mediated by probing and establishing where 'battle lines'
have been internalised.
In terms of approach, the UK concept of mediation regards the mediator as the
guardian of the process and differentiates between directive and facilitative approaches
reflecting what is done to encourage an outcome. ACAS (2006, 2007) have opted for the
facilitative model (see Appendix B). Mediators are trained to take charge of the process and
let disputants determine outcomes. The recommendations of the Gibbons report make
interesting reading in light of the above research findings. Gibbons (2007) continually
characterises mediation as an 'early resolution technique'. Whilst the experiences of New
Zealand are discussed, there does not appear to be consideration of using mediation in cases
where both disciplinary and court proceedings have failed to address the drivers of conflict.
Gibbons emphasises mediation as a pre-tribunal option and recommends that an employer or
employee who does not mediate might be punished financially for their failure to do so. The
report, however, stops short of arguing that the court be empowered to refer people to
mediation, or that the court can require an employer to establish a mediation scheme. In the
UK, at least, the Government continues to act to preserve unitary management authority in the
workplace.
As authors, therefore, we draw attention again to the USPS research. This suggests
that there may be considerable benefits in giving the courts the power to require the
introduction of a mediation scheme at a particular employer, if that employer fails to observe
basic standards of human rights within a democratic society. As the CIPD (2008) findings
suggest, it is precisely in the area of (perceived) harassment, bullying and discrimination that
mediation makes its biggest impact.
The argument for mediation, therefore, can be made on either financial or moral
grounds. Firstly, there is a reasonable, empirically grounded, expectation that fewer disputes
will be brought to court in the future. Secondly, there is a compelling ethical argument:
mediation, to date, has produced outcomes with higher levels of satisfaction for both
disputing parties with a higher percentage of working relationships remaining intact in the
aftermath of conflict.
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