Dispute Resolution in The Changing Workplace
Dispute Resolution in The Changing Workplace
Dispute Resolution in The Changing Workplace
WORKPLACE DISPUTE
RESOLUTION SYSTEMS
Abstract
For the past seven years, the authors of this paper have been
conducting research on the use of Alternative Dispute Resolution
(ADR) (particularly in employment disputes) by major U.S. corpo-
rations (Lipsky and Seeber 1998a, 1998b, 2000). In our research we
discovered that an increasing number of American corporations are
moving beyond ADR to the adoption of so-called “integrated conflict
management systems” (Lipsky and Seeber 1998a; Gosline et al.
2001). Although considerable research on the operation of various
ADR procedures exists, very little has been done on the formation
of conflict management strategies, including the use of conflict
management systems (Ury et al. 1988; Costantino and Merchant
1996; Stitt 1998; Colvin 1999). In this paper we examine: a) the con-
cept of an integrated conflict management system, b) the conflict
management strategies used by American corporations, and finally
c) the factors that account for the evolution of corporate conflict
management strategies from traditional approaches (including heavy
dependence on litigation) to the widespread adoption of various
ADR techniques and finally on to the adoption of full-blown conflict
management systems by a vanguard of U.S. organizations. In our
discussion we draw heavily on interviews we conducted with top
managers and corporate lawyers in more than fifty corporations
across the United States.
Author’s address: 621 Catherwood Library Tower, 6th Floor, Ithaca, NY 14853-3901
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WORKPLACE DISPUTE RESOLUTION SYSTEMS 31
Inclination to Change
Organizations do not set a process of wholesale shift to new systems in
motion unless there is substantial dissatisfaction with the old; that is the case
with dispute resolution. A number of different trends have converged to pro-
duce motivation for corporations to change from conventional methods of
dispute resolution to the use of ADR and, beyond ADR, to the adoption of
conflict management systems.
First, the traditional approaches of organizations to disputes have been
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ulation in the latter part of the twentieth century. Especially at a time when
organizations were being forced to reinvent themselves, organizational effec-
tiveness was critically dependent upon a committed, well-trained, and well-
organized workforce. Efficient workforces offered a potential competitive
advantage. Conflicts that remained unresolved or that did not surface in a
productive fashion severely compromised organizational effectiveness and the
quality of the good or service produced (Lipsky et al. 2003, 54–58).
Although conflict was seen as a natural outgrowth of contemporary orga-
nizational life, turnover of employees due to conflicts was viewed as an un-
productive waste of talent and organizational resources. A smooth-function-
ing organization demanded a smooth-functioning system of dispute resolution.
Yet many businesses found themselves without such a system even after they
had made the other organizational adjustments necessary for survival (this and
other observations we make in this section are based upon our interviews with
corporate managers and attorneys).
The total effect of these forces of dissatisfaction was a powerful motivation
for organizational change. Faced with the realization that conflict is inevitable,
and left without effective means of dealing with that conflict, one business af-
ter another attempted to create a new system of dispute resolution. Many went
well beyond that, however, into a new realm of conflict management.
management system. One simple distinction is the amount the system relies
on outsiders—neutrals and consultants, for example—to feed and maintain
it. But it is important to go beyond the use of outsiders and into the organiza-
tion itself. The extent to which line managers are involved and responsible for
resolving conflict is an important distinction between systems. Finally, since
(as one of our colleagues has repeatedly told us) “we are what we measure,” it
is important to analyze what is judged to be critically important by an organi-
zation by looking at the features of the system they choose to measure and
evaluate success.
There is no general agreement on the precise definition of a conflict man-
agement system, even among experts. Clearly, though, an authentic system is
not merely a practice, a procedure, or a policy. It is something more encom-
passing, which may incorporate all three—practice, procedure, and policy. Our
understanding of systems is rooted in the classic works on the system concept
(for example, see Von Bertalanffy 1976). We prefer the conflict management
system definition contained in the ACR report (Gosline et al. 2001).
ADR and conflict management systems seem to have arisen largely as a
response to changes—some long-term and some short-term—in the organi-
zational environment that made their use an effective alternative to conven-
tional litigation. These environmental changes were filtered through a set of
the organizations’ motivations, resulting in some organizations’ choice of a
conflict management strategy.
Three Strategies of Conflict Management
The dependant variable in our model—the organization’s choice of conflict
management strategy—is divided into three categories: contend, settle, and
prevent. These categories are obviously somewhat arbitrary. In truth, organi-
zational strategy ranges across a spectrum, and grouping large numbers of
organizations in a particular category may blur important differences across
organizations within that category. To some degree each organization we have
studied had its own unique conflict management strategy, tailored to fit its own
objectives and circumstances. Yet we defend our three-part categorization
because we believe it captures the most fundamental differences in organiza-
tional strategy that we observed in our research (Lipsky et al. 2003, 117–19).
In the contend category we include those organizations that clearly pre-
fer litigation to ADR. These are organizations that never or rarely use any ADR
technique to resolve a dispute. They reject the use of ADR as a matter of or-
ganizational policy, although occasionally some of them will accept the use of
mediation or arbitration in a particular dispute.
In the settle category, we include a majority of the major corporations in
the United States. Again, we recognize that there are critical differences in
36 IRRA 56TH ANNUAL PROCEEDINGS
Conclusions
Our research demonstrates that nearly all major U.S. corporations have
some experience with the basic ADR processes of arbitration and mediation.
A much smaller number of companies, however, have had extensive experi-
ence with ADR or have tried to use it as a general mechanism for dispute
resolution. Our findings show that in most U.S. corporations mediation, arbi-
tration, and other ADR processes are not yet institutionalized. In general,
parties are reluctant to agree in advance to mediate and make that decision
on a case-by-case basis. Arbitration, although less widely used, is almost al-
ways agreed to in advance.
A relatively small proportion of corporations have adopted an authentic
conflict management system. The emergence of conflict management systems
in U.S. corporations is such a recent phenomenon it is difficult, if not impos-
sible, to gauge the success of such initiatives. Our respondents at these cor-
porations told us that to date their experience had been favorable, by which
they usually meant that participants in these systems (managers, employees,
customers, suppliers, and so forth) said they had satisfactory experiences us-
ing these systems. The respondents also reported that most complaints had
been resolved early in the procedures and few had ended up being resolved
by outside neutrals. Contrary to the expectations of some skeptics, making
elaborate procedures available for employees and others does not promote the
filing of complaints. On the other hand, we have not been able to quantify the
costs and benefits of using systems and cannot provide bottom-line measures
of the effectiveness of the systems strategy.
Finally, it is highly significant that no company or organization that has
adopted a workplace conflict management system has, to the best of our knowl-
edge, abandoned that system in favor of more traditional methods of manag-
ing conflict. The long-term trend toward the privatization of dispute resolu-
tion is a social and cultural reality. Given that trend, conflict management by
organizations will merely systematize the privatization under a new regime.
Contemporary trends seem almost overwhelmingly to favor the continued
creation of conflict management systems. It seems unlikely that reversal of
those trends will occur in the foreseeable future.
40 IRRA 56TH ANNUAL PROCEEDINGS
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