Developing a meta-theoretical framework for mediation research: implications for dispute resolution in the social economy Dr Rory Ridley-Duff (and Dr Anthony Bennett) Sheffield Business School (and UCLAN) ESRC Seminar on Mediation Corresponding author: [email protected] Introduction • History and relevance • The context for mediation research • Reviewing mediation research – A meta-theoretical framework – Relevance to co-operative and social enterprise development Own introduction to mediation • Dispute about behaviour at a worker co-operative annual review • Treatment led to a request for an investigation • General Meeting rejected investigation in favour of mediation. History of the initial paper • Mediation short course (2007) at SHU – Background paper written by Rory Ridley-Duff for workshop participants. • Paper to support teaching (2008) – Updated for M-Level Employee Relations module after Dr Anthony Bennett becomes an accredited ACAS mediator. • Development as a journal paper (2009-11) – Journal paper co-authored: published in IRJ. Relevance to own field of research… Case 1 - Custom Products (Employee-Owned Company) • Founded in 1990 by a school teacher and one of his pupils, the company provides goods and services to schools. In 2004, the founders and 130 employees voted (separately) to convert to a trading company (CLS) owned by an employee-trust. 100% of income comes from trade. Case 2 - Trading Trust (Charity) • Founded in 1930, and registered as a charity in 1960. The organisation has a strong faith-based ethos and over a third of the organisation’s income is earned through sales: vocational courses that satisfy charitable objectives. In 2007, there were 80100 volunteers and 40-45 staff. Case 3 - Rights Now! (Charitable Company / Social Firm) • Founded in 1998 as a charitable company (CLG), The organisation fights for the rights of people with learning disabilities, including those who have a sensory impairment, and generates a third of its income through sales. The organisation has 20 staff and 10 volunteers. Each disabled volunteer pairs an able-bodied person. Case 4 - SoftContact (Worker Cooperative) • Founded in 1979 by six friends, the company grew to 15 staff in the 1980s providing training, advice and support services to Third Sector organisations, then shrank after the GLC was closed. The company, a worker co-operative founded as an Industrial and Provident Society (IPS), helped found Social Enterprise London. Context of the paper... • Employment Act 2002 (Dispute Resolutions) 2004 Regulations – 2004 regulations created statutory discipline and grievance procedures. – The number of employment tribunals rose 45% between 2004 to 2008. – Gibbons report (2007) recommended repeal of regulations. Repealed in 2009. Perspectives on conflict • Surface conflict – "[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 conflict • Conflict on alignment of interests (Fox, 1966, 1985) • Latent conflict and power dynamics (Lukes, 1974) • Individual / collective resistance (Blyton and Turnbull, 2004) Perspectives on conflict Fox (1985) on conflict Lukes (1974) on power Unitarist Conflict is irrational, due to poor communication or deviant or subversive behaviour by employees. Hegemonic power: institutions, processes and outcomes of conflict are under management control. Pluralist Conflict is rational as group interests diverge. Management institutions and procedures are needed to mitigate the effects of conflict. Agenda setting power: within agreed systems of rules, management decisions and actions can be challenged. Radical Conflict is creative and transformative, a symptom of a change process. Open conflict: symptom of more equitable power relations, capacity for sustained democratic debate/social relations. Distinguishing types of ADR • Arbitration – Third party hears arguments and make a decision that is binding on the parties (ACAS, 2008). • Conciliation – Third party intervenes to negotiate a 'compromise' agreement (ACAS, 2006). • Mediation – Third party facilitates negotiations between the parties and develops their conflict resolution skills (Liebmann, 2000). Distinguishing approaches to mediation • UK Approaches – Directive - mediator makes non-binding recommendations. – Facilitative - mediator control resolution process, while disputing parties control the outcomes (ACAS, 2005). • US Approaches – Problem-solving: task/problem focus, resolution through understanding the problem. – Transformative: relationship focus to explore disputants' motives and feelings to develop communication skills (Bush and Folger, 1994; Mareshcal, 2003). Distinguishing approaches to mediation • UK (ACAS) – Oriented towards the 'facilitative' approach • mediator controls process • disputing parties control outcomes/agreements. ACAS (2008b) • US (Postal Service / Public Sector) – Oriented towards the 'transformative' approach. • mediator helps parties establish a process • mediator facilitates disputants communication skills. Bingham and Pitts (2002) Existing research findings • USPS REDRESS Programme – Disputants can ask for any representation they like (including self-representation) – High satisfaction levels on procedural justice (91% with internal mediator, 96% with external mediator) – High satisfaction with outcomes (74% with internal mediators, 80% with external) – Tribunal claims dropped from 14,000 to 10,000 in USPS in the first 2 years of the scheme. – But…failed to compare satisfaction levels with those achieved through court hearings. – Bingham and Pitts (2002) Existing research findings • UK ACAS Research – Mediation is seen as potentially useful by 'a large majority' but rarely used (only 7% of SME respondents) – 43% of 'large' organisations had used mediation between one and five times in the previous year. – Not just an 'early resolution' measure - it helped in 'intractable' disputes that could not be resolved in other ways. – Still a lack of large scale research, not least because take up and usage is low. Acas (2005, 2008b) Meta-theory development • Caution regarding adoption – "…there may well be a role for mediation but it needs to be recognized that disputes in the employment context may differ from the kind of interpersonal disputes found in family cases." – Dickens (2008: 15) • Two substantive criticisms – mediation undermines legitimate authority – mediation hides the process of conflict resolution from democratic scrutiny. – Delgardo et al. (1985); Golten and Smith, (circa. 2005) Meta-theory development • Mediation undermines legitimate authority – In employee relations, does a 'legitimate authority' exist outside democratically owned and controlled enterprises? – Governors (directors/managers) are not - in most companies / organisations - subject to election / recall by those they govern. – Managerial legitimacy remains is rooted in property rights, and the powers delegated to managers by owners of capital. • Mediation hides the process of conflict resolution from democratic scrutiny – Can the public interest be argued on the basis of satisfaction levels and outcomes? – Can democratic legitimacy be argued on arguments for participative (direct) democracy? – Ward (1966); Pateman (1970); Lukes (1974) Meta-theory development • Authority driven approach – Evaluation of 'facts' against a normative framework of 'rights'. – Process adopts rationalist philosophical assumptions in an evaluation of the integrity of a management system. – Encourages an adversarial response (Huang, 2006). • Experience driven approach – Explores the legitimacy of different perspectives. – Exploration using constructivist philosophical assumptions to understand the impact of constructed realities. – Encourages a collaborative response (Bradfield and Aquino, 1999). Theoretical Framework Rigid Authority Relations Flexible (Dynamic) Authority Relations Unitary Ideology Litigation Arbitration Management Prerogative (interpretation, no negotiation) Pluralist Ideology Conciliation Radical Ideology Directive Mediation Distributive Negotiation (negotiate distribution of benefits) Facilitative Mediation Transformative Mediation Integrative Negotiation (negotiate interests and values) Interest Based Bargaining (IBB) and Negotiation (IBN) Experience Driven (Legitimation of perspectives) Authority Driven (Evaluation of facts and arguments) 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) Win-Lose (Promotes Hegemony) Subjective Reality (Accomodation of divergent norms) Compromise (Constrains Hegemony) Win - Win (Promotes Democracy) Where might mediation be the dispute resolution system of choice? • Amongst members of a governing body / works council / trade union? • Amongst employee and/or consumer owners of a co-operative or social enterprise? • Amongst volunteers, or mixed workforces in the charity sector? Theorising the social economy Economic Value More Collectivist Redistribution More Individualistic Reciprocity Market Polanyi, K. (2001 ). The Great Transformation. Boston: Beacon Press Social Value Utilitarianism Acting to benefit only others (Philanthrophy) Co-operativism Acting to benefit both self and others (Mutuality) Rationalism Acting to benefit only self (Egoism) Ridley-Duff, R. J. (2013) Imagine Briefing Document (exCore Project), Sheffield Business School Theorising the social economy Economic Value Orientation Reciprocity Redistribution Market Others Community Benefit (Charity & Public Administration) (Social Entrepreneurship) cia lE nt er pr ise Public Benefit Mutual Benefit (Co-operative / Mutual / Social Enterprise) te rp ris e Self and Others So En Co-operativism Pr iva te Social Value Orientation Philanthrophy Member Benefit Self (Co-operative Society / Voluntary Association) Private Benefit (Private Enterprise / Entrepreneurship) Rationalism (Egoism) Ridley-Duff, R. J. (2013) Imagine Briefing Document (exCore Project), Sheffield Business School Theorising the social economy • Socialised enterprises (mutuals and co-operatives): – Where social enterprise is seen as the ‘socialisation’ of entrepreneurial and business processes, access to power and wealth are socialised (distributed widely). – Relationships viewed as ‘ends’ not ‘means’: economic activity and social organisation is selected on the basis of its contribution to the well-being of stakeholders. – Management philosophy is changed, based on concepts such as ‘mutuality’, ‘reciprocity’, ‘representative and/or direct democracy’. • Social purpose enterprises (market): – Where social enterprise is seen as ‘business with a social purpose’, only the task of the enterprise is socialised. – Relationships are developed to pursue a (social) mission, and are justified if they contribute to the organisation’s mission to improve human well-being. – The underlying management philosophy remains unchanged, usually rooted in ‘rationalist’ and ‘managerialist’ logic based on board control. Ridley-Duff, R. J. and Southcombe, C. (2012) “The Social Enterprise Mark: a critical review of its conceptual dimensions”, Social Enterprise Journal, 8(3): 176-200, http://shura.shu.ac.uk/5571/ Dispute resolution system of choice? Case 1 - Custom Products (Employee-Owned Company) • Founded in 1990 by a school teacher and one of his pupils, the company provides goods and services to schools. In 2004, the founders and 130 employees voted (separately) to convert to a trading company (CLS) owned by an employee-trust. 100% of income comes from trade. • Mediation: – Does it support the goal of achieving ‘as much equality between people as differences in responsibility permit’? – Does it undermine the master-slave assumptions that underpin traditional employment relations (Erdal, 2011)? Dispute resolution system of choice? Case 2 - Trading Trust (Charity) • Founded in 1930, and registered as a charity in 1960. The organisation has a strong faith-based ethos and over a third of the organisation’s income is earned through sales: vocational courses that satisfy charitable objectives. In 2007, there were 80-100 volunteers and 40-45 staff. • Mediation: – Is it the system of choice for resolving disputes between volunteers and employees? – Is it the system of choice for particular faith-based approaches to organisation? (e.g. Quakers). Dispute resolution system of choice? Case 3 - Rights Now! (Charitable Company) • Founded in 1998 as a charitable company (CLG), The organisation fights for the rights of people with learning disabilities, including those who have a sensory impairment, and generates a third of its income through sales. The organisation has 20 staff and 10 volunteers. Each disabled volunteer pairs an able-bodied person. • Mediation: – Is it the system of choice for dealing with performance issues amongst disabled staff? – Is it the system of choice for dealing with disputes amongst job sharing staff? Dispute resolution system of choice? Case 4 - SoftContact (Worker Cooperative) • Founded in 1979 by six friends, the company grew to 15 staff in the 1980s providing training, advice and support services to Third Sector organisations, then shrank after the GLC was closed. The company, a worker co-operative founded as an Industrial and Provident Society (IPS), helped found Social Enterprise London. • Mediation: – Is it the system of choice for employee-owners (particularly in countries where worker-owners are not employees). – Is it the system of choice for ‘member-relations’ rather than ‘employment relations’? (Birchall, 2010) Theoretical Implications • On Mediation Itself: – Based on constructivist assumptions about the nature of being (ontology), and social constructionist assumptions about the nature of authority and knowledge (epistemology). – Supports thoughtful questioning and (re)negotiation of social and organisational norms. • On Mediation For Disputes Resolution: – Offers a framework for inclusive diversity management focussed on explorations of experience, rather than normative controls. – Is part of an approach that supports direct democracy through the enactment of mutuality and reciprocity in dispute resolution. • How can we study perceive benefits and limitations? 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. 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