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 [1944]). 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
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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 National REDRESS
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. 13591404.
Dickens, L. (2008), “Legal Regulation, Institutions and Industrial Relations”, Warwick Papers in
Industrial Relations, No 89 (University of Warwick: Industrial Relations Research Unit).
References
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Erdal, D. (2011) Beyond the Corporation: Humanity Working, London: Bodley Head.
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”, in Mediation 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.
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