Mediation – a panacea for the ills of workplace dispute
resolution? A comprehensive review of the literature
examining workplace mediation.
iRowe Research Paper No. 1
Lisa Banks
Richard Saundry
Abstract
In the wake of the Gibbons Review into the UK system of dispute resolution,
workplace mediation has assumed increased prominence. However, in the UK to
date, there has been little academic research into mediation. This paper provides a
comprehensive review of the international mediation literature in order to assess the
potential of workplace mediation to combat the problem of individual employment
conflict. The paper argues that there are significant obstacles to widespread
adoption of workplace mediation in the UK. In addition the paper highlights key
conceptual concerns and sets out a clear agenda for future research.
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Introduction
Workplace dispute resolution has become a central focus in the UK for both policymakers and employers in light of the rising cost of individual employment conflict,
most recently estimated at £410mn annually (Gibbons, 2007:7). Traditional
approaches to this problem have focussed on the use of formal grievance and
disciplinary processes, reinforced in 2004, by the introduction of minimum statutory
dismissal and grievance procedures under the Employment Act 2002 (Dispute
Resolution Regulations).
However, in 2007, the Gibbons Review, asked by the government to ‘identify options
for simplifying and improving all aspects of employment dispute resolution’
(Gibbons, 2007: 7) recommended the repeal of the statutory dispute resolution
procedures and promoted a more informal and flexible approach to grievance and
discipline. It placed significant emphasis on the need for employers and other
stakeholders to engage with alternative methods of dispute resolution (ADR). In
particular, it argued that mediation was ‘a pragmatic, flexible and informal way of
providing both parties with positive outcomes’ and therefore urged the government
to ‘Challenge all employer and employee organisations to commit to implementing
and promoting early dispute resolution.’
The government largely adopted Gibbons’ proposals but stopped short of
introducing legislation to promote mediation. Instead they accepted the need to
encourage the greater use of workplace mediation to facilitate the early resolution
of individual employment disputes and so reduce disruption to workplaces,
individual careers and ‘burdens on the resources of all concerned – employers,
employees and the state’ (Gibbons, 2007:5).
With some notable exceptions (Corby, 1999; Harris, 2008), there has been relatively
little academic investigation into workplace mediation in the UK. There is a larger
international literature, mostly emanating from the USA, but even here, the majority
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relates to court-mandated mediations and involves practitioners from many
different professions (Antes and Paranica, 2009). This paper provides, for the first
time, a comprehensive review of this diverse literature to examine the potential of
workplace mediation in the UK and to address a number of key questions: what is
workplace mediation and what are its perceived benefits? What factors shape the
effectiveness of mediation? To what extent does mediation offer a way to
significantly reduce the impact of individual employment disputes on employers,
employees and the state? Does the existing literature provide an adequate
conceptual framework for the analysis of workplace mediation?
The paper is structured as follows: Firstly, we examine definitions of mediation and
the different styles that have been adopted. We then examine the perceived
benefits and limitations of workplace mediation. In particular we highlight some of
the difficulties associated with evaluating the success of mediation initiatives. Finally,
we review how the organisational context and the different approaches and
characteristics of management and mediators shape the mediation process.
What is Mediation?
While, there is no universally agreed definition or general theory of mediation (Singh,
1986; Bellman, 1998), Moore (2003:15) argues that mediation is:
‘the intervention in a negotiation or a conflict of an acceptable third party
who has limited or no authoritative decision-making power, who assists the
involved parties to voluntarily reach a mutually acceptable settlement of the
issues in dispute’.
However when applied within a workplace setting, this approach is somewhat
prescriptive, suggesting a linear model of dispute resolution. This underplays the
complexity of mediation, the impact of contextual factors (Jones and Bodtker, 2001;
Bowling and Hoffman, 2003; Kressel 2007) and power relations between
stakeholders (Karambayya et al. 1992; Brett et al. 1996; Tillett, 1999; Seargeant,
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2005; Wiseman and Poitras, 2002). Nonetheless, there is a growing recognition of
the context specificity of mediation approaches (Bush and Folger, 2005), the
mediation process and mediator performance (Mareschal 2002a, 2002b; Barrett,
1999). Consequently it is possible to identify a number of different mediation ‘styles’.
Most workplace mediators adopt a problem-solving approach (Anderson and
Bingham, 1997) which itself can be divided into three sub-styles: evaluative,
facilitative and strategic. The evaluative style has its roots in labour management
disputes and occurs most frequently in the legal arena where disputants are in
conflict over a single issue. Mediators are proactive and ensure that participants are
realistic about their relative bargaining positions. In contrast, facilitative mediation
has a strong future focus, encouraging the recognition of needs and interests in an
attempt to identify areas for agreement (Alberts et al., 2005). Seargeant (2005)
argues that this approach is highly effective for finding workplace solutions, but
stresses that the focus is on enabling participants to work together in the future
rather than resolving personality-based issues. However, critics suggest that
facilitative mediation fails to focus sufficient attention on the underlying issues that
lead to conflict (Kressel, 2007). Consequently, Kressel proposes an alternative
‘strategic’ style of mediation where the mediator drives the problem solving in an
‘empathic, but decidedly directive [and] non-neutral’ manner (Kressel 2007:69) in
order to unearth the latent causes of conflict.
The dominant problem-solving paradigm has become increasingly challenged by
relational approaches and in particular transformational mediation (Bush, 2001,
Hallberlin, 2001). Here, the mediator allows the parties to determine which issues
are discussed (Della Noce, 2004); settlement is not the focus, but may be a byproduct (Bingham and Novac, 2001). The approach identifies that individuals, destabilised by conflict, can be helped to restore their self- confidence and
responsiveness to others. Alternatively, ‘narrative mediation’ (Winslade and Monk,
2000) attempts to refocus the conflict story and construct ‘a respectful and equitable
relational context that can serve as the basis of an ongoing relationship’ (Winslade,
2006:511).
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In a workplace context, relational approaches could be criticised for underplaying the
importance of ending the conflict in the short-term. Indeed, McDermott et al
(2001:18) found that US Equal Employment Opportunity Commission (EEOC)
mediators rarely use transformative techniques because of the ‘need for a solution in
order to avert an investigation’. At present, research suggests that the facilitative
style is practised most frequently in the workplace (Hermann et al., 2003; Seargeant,
2005; Fox, 2005; Mareschal 2005). However no dominant methodology has emerged
and one of the largest workplace schemes (US Postal Service) utilises a
transformative style (Bingham, 2004).
It could be argued that imposing clear distinctions between mediation styles fails to
reflect the fact that mediators may use a range of different approaches within a
single mediation (Riskin, 2003:32). Furthermore, it provides an essentially static
conception of mediation that underplays the extent to which mediation is shaped by
the dynamic interplay between the parties, the mediator and the mediation context
(Picard, 2004).
Benefits of workplace mediation – evaluating success
A key concern of this paper is whether an extension of mediation in the UK can
facilitate dispute resolution and so reduce the burdens placed on employers,
employees and the state (Gibbons, 2007). Although limited, the extant evidence
from the UK paints a largely positive picture. Seargeant’s (2005) evaluation of
mediation in small firms found an immediate improvement in working relations in
twelve out of thirteen cases examined. Three of these sustained all these
improvements, while eight maintained some improvement. A 2007 survey
conducted by the Chartered Institute for Personnel and Development (CIPD, 2007)
found that organisations that provided mediation training were subject to lower
levels of employment tribunal cases than those that did not. A further survey in 2008
(CIPD, 2008) claimed ‘strong support from employers for the use of workplace
mediation’ with respondents citing a range of positive impacts in addition to helping
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to resolve disputes. These included: avoidance of the stress of formal procedure and
the development of organisational culture. However, the most widely cited benefit
was improvements in employee relationships, perhaps pointing to the broader
impact of mediation.
Evidence from the USA also highlights the positive impact of workplace mediation.
McDermott et al’s (2000) study of the US EEOC found that in 59% of cases the parties
were satisfied with the outcome, 85% were satisfied with the fairness of the process
and over 90% would use mediation again. Bingham et al’s study (2000, 2002) of the
US Postal System which uses transformative mediation, revealed a 60% - 70%
satisfaction rate for outcome and over 90% satisfaction with the fairness of the
process, accompanied by a 17% drop in formal complaints.
There are also suggestions that mediation has clear benefits compared to ‘standard’
grievance and disciplinary procedures. Two useful quantitative examples include
Anderson and Bingham (1997) who found that 66% of employees and 92% of
supervisors thought mediation was more effective than traditional processes and
Corby’s (1999) comparison of New Zealand (where mediation was widely used) and
the UK, which suggested that the use of meditation in New Zealand had resulted in
fewer cases being referred to formal tribunal hearings. Reynolds (2000:169) argues
that ‘grievance and disciplinary hearings concentrate on deciding the degree to
which people are right or wrong, so communication rarely gets discussed’. In
contrast, mediation provides the parties with the power and space to find a mutually
agreeable solution (Pope, 1996; Hebert, 1999). In addition it is argued that
mediation provides significant financial savings compared with (often lengthy)
traditional procedures (Kressel, 2006; Goldberg, 2005) as sessions can often be
organised more quickly, restoring the employment relationship more swiftly and
reducing the number of cases that reach litigation (Bingham and Pitts, 2002; CIPD,
2007).
From a participant perspective, the literature suggests that mediation provides an
opportunity for individuals with an issue that falls outside formal procedures to
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access an avenue of resolution previously closed to them (CIPD 2004, Montoya,
1998). It also provides an alternative approach for staff wishing to progress a
grievance in a less confrontational manner (Fox, 2005), perhaps encouraging
employees who would normally avoid conflict (Barsky and Wood, 2005) and even
leave their job (Berggren, 2006) to broach their concerns. Mediation also provides
individuals with the opportunity to have ‘their day in court’, whilst allowing them to
vent their emotions in a safer and less stressful environment (Singletary et al, 1995;
Karambayya et al., 1992; Sulzner, 2003; Mareschal, 2005; Wall et al. 2001; Corby,
1999). Shapiro and Brett, (1993) argue that participants find mediation more
satisfying than traditional methods and are thus more likely to uphold any
agreement reached while Seargeant (2005:27) builds on this, arguing that a
mediator’s ability to break down the disagreement into small segments helps
disputants feel less intimidated and more able to manage the process.
At a broader level, the introduction of internal mediation schemes may have useful
indirect ‘upstream’ effects. For example, training line managers in conflict handling
approaches may be beneficial, not least because managers are sometimes the cause
of conflict (Hogan et al, 1994) or fail to manage it effectively (CIPD, 2007). The
literature suggests that managers trained in this capacity improve their conflict
handling skills (Wiseman and Poitras, 2002, Bingham 2003, 2004), their reputation
(Reynolds 2000), team morale (Fox 2005), and even gain ‘knowledge or resources
that can greatly expand the opportunities for creative problem solving’ (Kressell,
2006:747). In this way the provision of mediation skills may allow for early dispute
resolution without the need for formal mediation.
However, there are clear difficulties with assessing the benefits of mediation. Firstly,
measuring success in terms of dispute settlement is too simplistic (Greig, 2005). For
example, partial settlements in complex cases can have long-lasting organisational
benefits (Fox, 2005). Instead, Mareschal (2005) argues that mediation success should
be viewed as a continuum measured against factors such as reaching agreement and
narrowing the number of issues in dispute, whilst Hoskins and Stoltz (2003:347)
contend that as change often occurs in the months following the mediation,
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mediators should view agreement as a step ‘along a path of development’.
Importantly transformative mediation measures success not in terms of settlement
but the parties’ level of participation and recognition of each other, (Bush 2001;
Bingham, 2003). Thus meaningful comparisons between studies of mediation are
problematic and data needs to be treated with caution. This difficulty in evaluating
success rates is compounded by a number of key factors. Firstly, participants’
expectations, understanding and attitude towards mediation will influence the
nature of, and satisfaction with the eventual, outcome (Fox, 2005; Silberman, 1989;
McDermott et al., 2000) Secondly, in workplace mediation, the mediator normally
has the final decision as to whether a case is suitable for mediation. Consequently,
mediation takes place when it is most likely to be successful (Greig 2005). For
example Wood and Leon’s (2006) case study identifies fifty-four cases that were
referred to mediation, only thirty-six were mediated and of these thirty-one were
settled.
Secondly, comparing the effectiveness of mediation with that of more traditional
dispute resolution processes is problematic (Mahony and Klass, 2008) as participants
are unlikely to have experienced mediation and grievance processes simultaneously.
Furthermore, mediation may not be appropriate for all individual disputes. For
example, managers may be sceptical about offering mediation in disciplinary cases
(CIPD, 2008). It is a widely held view that it is unsuitable in cases involving overt
bullying, harassment and other situations where formal sanctions should be used
(Bellman 1998, La Rue, 2000). Indeed, Mareschal (2002a:1262) argues that ‘victims
of discrimination should not have to ‘negotiate’ for the enforcement of civil rights
granted by law’. However, others have argued that early mediation may be useful in
resolving disputes that would otherwise develop into cases where formal sanctions
would be unavoidable by highlighting the ‘unconscious and subtle discrimination or
‘micro-inequities’ often serve as the basis for many, if not most, claims of workplace
discrimination’ (Stallworth, 2001:37). Indeed, Miller (2001:2) argues that ‘mediation
is a particularly well suited process for resolving disability employment issues’, whilst
Bond (1997) encourages organisations to use mediation for sexual harassment
disputes.
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It is also important to acknowledge that mediation is not without its dangers,
particularly where issues of power are concerned (Van Gramberg, 2006). Mediation
research tends to focus on power asymmetries within the process and particularly
between disputants resulting from differences in grade or communication skills
(Tillett, 1999). In such cases, the stronger party may simply refuse to participate
(Wiseman and Poitras, 2002) or the weaker party may feel too intimidated to
contribute. Agusti-Panareda (2004) argues that mediation should not be ruled out in
such instances, as the process protects the disputants. Moreover, Gewurz (2001)
contends that it may possible to moderate mediation style in order to address power
imbalances. However, the literature tends to neglect power relations between
employer and employee. Mediation, after all, is a management process, and, from a
radical perspective, may be seen as a means of controlling dissent. As Sherman
(2003) argues, mediators cannot change the fundamental power relationship that
exists between parties, nor can they protect the weaker party outside the mediation
session. Those power relations are inevitably underpinned by the organisational
context within which mediation takes place and are also reflected in the way in
which managers interact with the mediation process. It is to this that we now turn.
Shaping the Mediation Process
The use and effectiveness of mediation in facilitating the early resolution of disputes
inevitably depends on a range of factors. These include: organisational
characteristics and management style; the characteristics of mediators; and the
design of mediation processes.
i) Organisational characteristics and management style
It has been clearly established that the use of traditional procedures for dealing with
employee grievances and disciplinary issues is closely related to a range of
contextual variables including workplace size and sector (Knight and Latreille, 2000;
Antcliff and Saundry, 2009). Larger organisations, particularly those in the public
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sector are more likely to have extensive procedures for dealing with individual
conflict. There is some evidence that this extends to mediation. Surveys conducted
by the CIPD (2007; 2008) suggest that public sector organisations make greater use
of mediation than private sector counterparts. Furthermore 53% of public sector
organisations train employees in mediation skills compared to an average of 30%.
Size of workplace and organisation may also be significant. Certainly, while there is
evidence of enthusiasm for mediation amongst small and medium sized enterprises
(SMEs) this is not reflected in its use. An Acas survey of UK SMEs in 2008 (Johnston,
2008) found that whereas three-quarters of respondents thought that it sounded
like a good tool for resolving disputes, only seven per cent had used it and half of
these had not used mediation in the last 12 months. Most managers surveyed
believed that mediation was ‘only suited to large organisations’. Internal mediation
in SMEs may be difficult given the personal nature of employment relations,
however, the use of external mediators involves a cost that some employers would
baulk at (Harris et al., 2008). The potential difficulty of extending mediation into
smaller workplaces is a crucial issue given the faith placed by Gibbons in
transforming workplace dispute resolution.
Irrespective of size and sector, the attitude of members of an organisation to conflict
may affect its responsiveness to mediation. Organisational conflict is often portrayed
as an ‘emotion-free zone’ (Jones and Bodtker, 2001:83) and thus managers may
dismiss emotional reactions to conflict as a sign of weakness (Schreier 2002). In this
context, mediation may be recast as a form of control, a way to avoid formal
proceedings or a way to evade people management responsibilities (Seargeant,
2004). In contrast, organisations that acknowledge the link between conflict,
employee behaviour and work outcomes (Suliman and Abdulla, 2005) may identify
more readily with mediation as a way of resolving disputes.
Where managers actually take on the role of mediator, the situation is more
complex. Managers with an insight into a dispute are also perceived as more credible
and better able to support the parties in reaching a solution (Arnold, 2000; Sherman,
1995; McDermott et al., 2000). However problems may arise if managers have some
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form of power over the outcome or are limited in dealing effectively with the
situation because of their continuing relationship with the disputants (Jameson,
1996). Moreover, third parties with formal authority are more likely to behave
autocratically in dispute situations (Karambayya et al. 1992; Cohen et al.; 1999)
leading to more frequent occurrences of one-sided outcomes or impasses. They may
be tempted to use their authority to achieve a resolution irrespective of whether it is
in the best interests of the parties (Karambayya and Brett, 1989). The solution may
therefore be to draw mediators from a wide range of roles. However the individual
characteristics and attitudes of mediators, wherever they are drawn from will
inevitably impact upon the nature of the mediation process and its success or failure.
ii) Characteristics of mediators
Mareschal (2002a:1367) argues that, ‘the acceptability, credibility and perceived
neutrality of the mediator are the basic building blocks of mediator effectiveness’.
Credibility can help to build trust between participants (Mareschal 2005), increase
confidence and encourage concessions (Silberman 1989). Moreover, mediator
insight and credibility has been found to be significant in influencing how disputants
view mediator recommendations and consequently settlement rates (Arnold and
O’Connor, 2006; Bowling and Hoffman, 2003; Kydd, 2003, 2006).
The perceived neutrality of the mediator is a key factor in building credibility.
However it is argued that a mediator is ‘not genuinely neutral but is simply behaving
that way’ (Sherman, 2003:44). In a similar manner, McDermott et al (2000:3) argue
that mediator neutrality is a paradox, as a mediator is required to maintain an
unbiased relationship with both parties yet has to ‘temporarily becoming aligned
with each party to encourage disclosure and assist the party in expressing the case’.
This is a particular problem facing internal mediators as their occupational status or
friendship group of internal mediators may appear to align them with one of the
parties, thus affecting their credibility. Bingham and Pitts (2002) found that
settlement rates were higher for cases that used outside mediators. Against this,
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internal mediators may have greater insight into the context of any dispute and the
potential solutions.
Experience can also be a significant factor in how a mediator manages each case and
can determine a mediator’s capacity to understand and manage difficult interactions
(Jones and Bodtker, 2001). For example, in a workplace setting it may be tempting
for an inexperienced mediator to act to reduce emotional outbursts (Tjersland,
1999), while experienced mediators may recognise that ‘real progress may occur
only after the venting process has played itself out’ (Singletary et al., 1995:225).
Similarly, Wall et al. (2001) recognise that experienced mediators faced with an
extremely hostile situation might adopt a caucusing approach to encourage
individual cathartic experiences before bringing the parties together, whilst an
inexperienced mediator may simply call a halt to proceedings. The literature is
generally in agreement that well designed training programmes provide a
foundation for mediator development (Moore, 2003; ACAS, 2005b) but effective
training may not be enough in itself. Schreier (2001) argues that it is generally
accepted that the personal skills required for conflict resolution derive from
emotional intelligence and specifically emotional self-awareness and self-regulation
(Johnson, Levine and Richard 2003). It is suggested that organisations look for
potential mediators who already possess appropriate personal qualities (Tillett,
1999).
iii) System Design
The design and implementation phases of a mediation scheme, especially securing
the buy-in of stakeholders, are critical to its success (Carter, 1999; Bingham, 2004;
Green, 2005; Hebert, 1999) and yet the literature suggests that adequate education
for managers and union officials is often lacking (Hebert, 1999; McDermott et al,
2001), while consideration of the type and jurisdictional scope of mediators often
receives low priority (Sherman 1995). Interestingly, there is a growing body of
literature which highlights the potential dangers of the increasing privatisation of
justice, arguing that employers who design a mediation scheme have control over
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the process and in effect design their own justice (Bingham 2007; Bingham et al.,
2009). Antes and Paranica (2009) argue that organisational system design is in
danger of taking conflict away from the rightful owners (the parties) and creating
systems which focus on resolution, rather than offering opportunities to increase
employee voice (Lipsky and Avgar 2008) or self- determination (Young, 2006). This
again points to the importance of power relations in shaping the nature of workplace
mediation.
There are numerous design factors that require consideration.
For example,
whether participants have a choice of mediator (Bingham and Pitts 2002), the time
period during which a grievance can be suspended (Silberman 1989) the types of
acceptable cases and participant access to representation (Bingham et al., 2002).
Bingham and Pitts (2002) found that parties who had representation had slightly
increased settlement rates, yet McDermott et al. (2000) found that participants
without representation were more satisfied with the fairness of the process, which is
perhaps at odds with Dolder (2004) who argues that without representation there is
no-one to re-dress the balance if a party is at a disadvantage.
Perhaps one of the most significant areas for consideration is the issue of
confidentiality. It is often cited as being a major benefit of the process, which
protects individuals’ reputations and fosters compromise and creativity; however
the word rarely appears in any definition of mediation. In much of the practitioner
literature there appears to be an almost naïve assumption that confidentiality will be
protected and consequently there is little evidence of the implications being
considered at the design stage. For example, it could be argued that confidentiality
rules could help repeat offenders from escaping formal procedures (Anderson and
Bingham, 1997) and limit the ability to make improvements in workplace practices
(Fox, 2005; Seargeant, 2004). Furthermore, they could be used as a form of
management control to recast organisational issues (or on occasion public interest
cases) as personal disputes (Herr, 2005; Bush and Folger, 2005).
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Many of these factors will influence disputants’ willingness to actively participate in
mediation and as such are critical to the design process; particularly as voluntary
participation indicates a willingness to actively seek resolution (Fox, 2005; Seargeant,
2004). Brett et al (1996) place a slightly different emphasis on willingness to
participate arguing that they found similar settlement and satisfaction rates for both
voluntary and mandated mediation and argue that ‘the distinction between
‘compulsion’ to enter mediation and ‘compulsion’ to settle mediation is crucial –
only the latter is inconsistent with mediation’. Whilst this may be true in their
example of court ordered mediation, it is possible that individuals forced to
participate in mediation by their manager come to see the process as a form of
management control; thus emphasising mediation’s voluntary nature has been
identified as highly significant in securing active participation (Tjersland, 1997, Grillo,
1996). Parties will evaluate potential mediation outcomes against the possibility of
continuing with the conflict or instigating formal proceedings and thus the timing of
the intervention is also important; too early and parties will not see the necessity to
enter mediation, too late and the conflict may have escalated beyond recovery (Wall
et al 2001, Fox, 2005, Greig, 2005).
Discussion and Conclusion
Given the emphasis placed on workplace mediation within recent government
policy, there is a distinct lack of UK based academic enquiry into the subject. Indeed
it has been argued that the conclusions of the Gibbons Review itself (Gibbons, 2007)
and the consequent programme of legislative change (Sanders 2009) were based on
‘anecdotal evidence’. Therefore this paper provides an important contribution to the
debate over workplace mediation in three key respects. Firstly, it highlights key
conceptual concerns; secondly, it provides important insights into the policy
implications post Gibbons; and thirdly, it provides the basis for a clear research
agenda.
The literature reviewed above predominantly conceptualises workplace mediation as
a linear technical process. This is problematic in two main respects. Firstly, it stands
15
in stark contrast with Gibbons’ portrayal of mediation as an antidote to the sclerotic
formality and proceduralisation that has characterised workplace dispute resolution
in the UK. Indeed, far from mirroring Gibbons’ call for greater flexibility and
informality workplace mediation would appear to sit most easily within a framework
of formal and complex approaches to the management of individual conflict. It is
perhaps no coincidence that mediation is mostly used by large organisations (both in
the UK and USA) that have the technical, financial and people resources to
underwrite internal schemes or engage external mediation services. The available
evidence regarding the extent of mediation suggests that its use is currently confined
to a small minority of UK workplaces and predominantly be found within larger
public sector organisations (CIPD, 2008; Johnston, 2008). However, there is little
evidence as to how processes of mediation interact with, and relate to, existing,
more conventional procedural approaches to dispute resolution.
Secondly, there is an implicit assumption within much of the literature that
mediation, and its effectiveness, is shaped by issues such as management style,
system design and training. In short it tends to prescribe. Fundamentally, the
literature gives insufficient weight to the social processes that underpin conflict
resolution. The way in which mediation is played out within organisations is
inevitably shaped by the power relationships between key actors – participants,
managers, HR professionals and employee representatives. These need to be placed
at the forefront of our attempts to both conceptualise workplace mediation and
assess its potential for improving dispute resolution. While some accounts
acknowledge the importance of power and hierarchy between participants within
the mediation process, less consideration is given to the fundamental asymmetries
of power between employer and employee and how this impacts on the attitudes to,
and behaviours within, mediation processes.
These conceptual concerns have important policy implications for the UK. The
Gibbons agenda for reform of the dispute resolution system is predicated on the
increased use of alternative dispute resolution amongst both large and small
workplaces. A key question, therefore, is whether the adoption of mediation can be
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increased without some form of legal compulsion or incentive? Within the USA and
New Zealand, the institutional environment of dispute resolution provides strong
incentives to use mediation rather than risk costly litigation (Boulle, 1999; Corby
1999). In contrast, the UK has adopted a voluntaristic approach, relying on
organisations seeing the positive benefits of workplace mediation.
In fact, the prima facie business case for mediation is quite strong. Firstly it is argued
that mediation works with high success rates frequently found in case study research
(i.e. Bingham et al., 2000). Secondly, this success reduces costs in that cases are
resolved that might otherwise result in long-term absence, extensive grievance
administration and costly litigation (Anderson and Bingham, 1997; Corby, 1999;
Kressel, 2006). Thirdly, a broader argument in favour of mediation is the ‘upstream’
impact of using mediation and training staff in mediation techniques. Such benefits
have been found to include improved working relations and lower levels of conflict
(Sergeant, 2005; CIPD, 2007, 2008) and improved conflict management skills
amongst line managers (Bingham, 2004).
However, evaluating the success and benefits of mediation is not straightforward.
There is scant large-scale survey data in this area and no accepted methodology for
assessing the potential costs of individual employment disputes. By their very
nature, the length and complexity of such disputes is almost impossible to predict. In
addition, high settlement rates for mediated disputes must be treated with caution
as they are self-selecting – in short, only those cases that are suitable and
consequently have a reasonable chance of success will be handled in this way.
Nonetheless, the available evidence suggests that organisational attitudes in the UK
to mediation are largely positive (CIPD, 2008) event amongst smaller and mediumsized enterprises (Johnston, 2008). Despite this, converting these perceptions into
increased use of mediation in the workplace remains more problematic. This
possibly reflects two critical issues: firstly, organisations need clear evidence that
potential benefits outweigh the costs involved. In particular, it would seem that the
perceived cost is an obstacle for small and medium sized enterprises (Harris et al.,
17
2008; Johnston, 2008). Larger organisations may be able to devote greater resources
to mediation and have the scale needed to effectively introduce internal mediation
schemes. Furthermore, not only do larger organisations experience higher rates of
employee grievances (Kersley, et al., 2006) but they also tend to have more complex,
and potentially lengthy procedures, which in turn means that the cost of unresolved
grievances is relatively high. In contrast the financial benefits of mediation for
smaller organisations may be less clear-cut due to their use of more streamlined
grievance and disciplinary procedures.
Secondly, it has been argued that workplace mediation may only be appropriate for
dealing with a relatively narrow range of disputes, which involve an element of
relationship breakdown. In particular, whether mediation is appropriate in cases
involving breaches of disciplinary rules has been questioned (Bellman, 1998; La Rue,
2000). Furthermore, in such cases managers may be unwilling to relinquish their
authority and control over disciplinary sanctions.
Overall, therefore, Gibbons has placed an important focus on mediation, that has
been missing from UK employment relations. Moreover, there is a clear body of
evidence that points towards mediation having a range of positive impacts, both in
terms of facilitating the resolution of individual disputes and also improving the way
in which organisational conflict is managed more broadly. However, there are clear
obstacles to workplace mediation having a transformative impact on individual
conflict in the UK. Firstly, while mediation may be appropriate for dealing with the
relatively early stages of interpersonal conflict, its applicability to more serious
disputes and in particular disciplinary issues is questionable. Secondly, the cost of
external mediation and the resources needed to establish a system of internal
mediation is a major disincentive for smaller and medium sized organisations.
Finally, the legal and institutional framework of dispute resolution provides little
incentive for mediation when compared with other countries such as New Zealand
and USA. We would therefore question whether the strictly voluntaristic approach
adopted in the UK will see the widespread adoption of workplace mediation in light
of the obstacles outlined above.
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Perhaps a more pragmatic approach is to acknowledge that mediation is as one
alternative in a suite of workplace conflict resolution processes (Sherman 2003)
rather than as a replacement for traditional methods. Used at the proper time,
mediation can also supplement traditional procedures, e.g. helping to repair the
employment relationship after a grievance has found in favour of one of the parties,
or offering a route for resolution where traditional procedures would find no case to
answer. In fact this reflects the linear technical conception of mediation that seems
to underpin much of the literature.
However, this pre-occupation with mediation as a process to resolve specific
disputes arguably obscures its broader potential. Arguably, the greatest value of
mediation is that it could provide a basis for the renegotiation of working
relationships. At a micro-level this may mean restarting communications between
colleagues in conflict with each other, but at the level of the organisation it could
recast the traditional adversarial roles adopted by stakeholders within traditional
dispute resolution processes. Therefore while mediation may only impact upon a
limited sub-set of individual conflict within an organisation, it may act as a catalyst in
changing the way in which key actors manage employment disputes.
These considerations also suggest a clear research agenda. Firstly, there needs to be
a greater focus on how different stakeholders interact both within the mediation
process but also subsequent to any resolution. Research is needed that attempts to
uncover the social processes that underpin mediation and expose the dynamic
power relations that can shape attitudes, behaviours and outcomes. Enquiry needs
to extend beyond participants, to line managers and employee representatives, who
often have a critical role in terms of encouraging or discouraging the use of
mediation processes. Secondly, research is needed that examines mediation in the
context of broader formal and informal processes of conflict management and
dispute resolution. We need a better understanding of how mediation processes
interact with disciplinary, grievance and other procedures. Finally, while we have
evidence that the majority of mediations reach agreed outcomes, we have less
19
understanding about how mediation impacts upon longer-term relations between
participants themselves and between employees and employers. It could be argued
that the real significance of mediation lies, not in facilitating the resolution of a
relatively small numbers of specific disputes but as a catalyst in changing the way in
which managers, employees and their representatives approach individual conflict.
20
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