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10 Harv. Negot. L. Rev. 339
Harvard Negotiation Law Review
Spring 2005
Recent Development
DYADS: ENCOURAGING “DYNAMIC ADAPTIVE DISPUTE SYSTEMS” IN THE ORGANIZED WORKPLACE
Peter Robinsond1 Arthur Pearlsteindd1 Bernard Mayerddd1
Copyright (c) 2005 Harvard Negotiation Law Review; Peter Robinson; Arthur Pearlstein; Bernard Mayer
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
Introduction
A Place for Dispute Systems Design in the Organized Workplace
A. Overview: What Is Dispute Systems Design?
Barriers to Dispute Systems Design in the Organized Workplace
Complexity and Dispute Systems
DyADS: A Role for FMCS
What Is in It for the Parties?
A. Labor
B. Management
C. Overall
Origins of DyADS
Foundational Principles for FMCS’s DyADS Initiative
A. Inclusive
B. Incremental
C. Interest-Based
D. Multiple Options
E. Robust Communication
F. Internal Neutral
G. Continual Refinement
H. Respect for Collective Bargaining Agreement
Activities to Champion DyADS in the Organized Workplace
A. Promote
B. Convene
C. Facilitate
D. Training
E. Technical Support
F. Evaluate
Conclusion
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*340 I. Introduction
In early 2002, the Federal Mediation and Conciliation Service (“FMCS”)1 embarked on an effort to examine and advance the
state of the art in dispute systems design and to determine an appropriate role for FMCS in helping its clients2 apply best
practices in the development of dispute systems for the workplace. This initiative was based on observations that:
(a) a growing proportion of workplace disputes, even in the unionized sector, involve individual conflict (e.g., Equal *341
Employment Opportunity (EEO) disputes, clashes of personality and style, etc.) rather than collective conflict (e.g., disputes
over wages, benefits, and other matters collectively bargained for); and
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(b) organizations in the unionized sector have generally not moved toward developing dispute systems for such individual
conflict to nearly the same extent as have companies in the non-unionized sector.
The principle issue for this initiative, then, was whether and how to help clients systematically deal with the kind of
individual conflict that is increasingly important even in the unionized sector.
FMCS undertook this dispute systems design project by sponsoring a cooperative agreement with the Straus Institute for
Dispute Resolution at Pepperdine University School of Law.3 Together, the Straus Institute and FMCS studied the literature,
assembled a group of foremost experts in dispute systems design to share ideas, and held numerous informal discussions with
labor and management leaders. The result was a report that set forth a review of emerging best practices and a recommended
protocol through which FMCS could assist its clients to design and develop workplace dispute systems.
The report proposed an approach to be known as Dynamic Adaptive Dispute Systems (DyADS)4 through which labor and
management stakeholders in an organization could collaboratively design a unique workplace dispute system that would
evolve with the organization. Based on the report, FMCS is launching a set of pilot projects around the country aimed at
refining the concept and determining the feasibility of offering DyADS to all of its clients.
While the movement to establish workplace dispute systems is not new, the DyADS initiative represents a new stage in the
progression of the dispute systems design concept in at least two ways. First, DyADS applies lessons from complexity theory
to approach dispute systems from the “bottom up,” evolving through broad vision and minimum specifications. This contrasts
with the more traditional approach of applying a mechanical model from the “top down” to impose a system by attempting to
plan every small detail. Second, DyADS involves labor and management in a joint, creative effort to develop dispute systems
that would complement collective bargaining.
*342 The authors of this report felt that the conclusions of the DyADS research could have broad implications for the field of
dispute resolution and could serve as a developing new paradigm for conflict systems design rather than as simply a new
government program. The authors therefore sought to have the initial publication of the report appear in a scholarly journal
widely accessible to dispute resolution professionals. In fulfillment of that goal, this article is a fully referenced, revised
version of the report. This is the first time it is being published in any form, other than for internal FMCS consumption.
II. A Place for Dispute Systems Design in the Organized Workplace
A. Overview: What Is Dispute Systems Design?
While conflict in the American workplace is nothing new, the nature of that conflict in traditionally unionized workplaces has
been changing in recent decades. For more than a century, collective bargaining has served as a primary mechanism for
resolving employment conflicts and promoting problem-solving between labor and management.5 The collective bargaining
agreement is typically the result of periodic negotiations between labor and management reached under threat of a strike or
lockout.6 Once the agreement is reached, it is usually enforced through the use of a grievance procedure, which involves
arbitration before mutually acceptable neutrals.7 The process tends to be highly adversarial, with management making all
strategic decisions about running and managing the business and unions retaining the right to negotiate the terms and
conditions of employment and filing a grievance if individual or collective rights under the agreement are violated. 8
However, the number and variety of workplace disputes is dramatically increasing as organizations restructure under a new
economy, social stresses escalate, administrative regulation of the workplace expands, and statutory and common-law
protections against discrimination and wrongful discharge become more established. Among the most important trends has
been a shift toward disputes involving individual employees and *343 their rights and away from disputes involving
vindication of the collective interests of workers.9
An increasing proportion of workplace disputes fall, or at least are pursued, outside the collective bargaining agreement.
These frequently include statutory actions, involving claims such as racial, gender, disability, age discrimination, or
whistleblower claims, by employees against other employees, management against management, or employees against
management. Typically, such claims are framed as “rights” conflicts, and often require some form of intervention by a court
or administrative agency.10
There is also a range of other conflicts that, while not contemplated under specific legislation or regulations, ordinarily are
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not handled within the arrangements created by collective bargaining. These are noncontractual disputes and include clashes
of personality and/or working style between an employee and a supervisor, certain “quality of workplace life” issues not
covered under the collective bargaining agreement, and disputes between a manager and employee over product or service
quality. All of these noncontractual types of disputes have the potential to cause substantial discord, and many *344 end up
being handled with “rights-based” mechanisms because one or more parties perceives that there is no other alternative. 11
Many corporations have embraced the concept of “dispute systems design,” both in order to avoid the expense and
destructiveness of individual dispute litigation, and because they realize that improved communication and conflict handling
are key to the development of high performance organizations. Dispute systems design focuses on going beyond specific
disputes or dispute resolution mechanisms and instead taking a broader look at the full range of conflict within an
organization in order to determine how best to prevent or address the types of conflicts the organization experiences over
time.
Central to the case for dispute systems design is the understanding, borne of experience, that changing procedures are not
enough. Parties need to have the motivation, skills, and resources to use the new procedures. 12 Thus, as the Society of
Professionals in Dispute Resolution (SPIDR) guidelines for conflict management systems within organizations set forth, an
appropriate system “addresses the sources of conflict and provides a pervasive method for promoting a conflict competent
organization.”13 Such a system also “encourages employees to voice concerns and constructive dissent early; integrates a
collaborative problem-solving approach into the culture of the organization; and coordinates a web of options and structures
enabling problem-solving across areas and functions.”14
*345 III. Barriers to Dispute Systems Design in the Organized Workplace
To date, most activity in dispute systems design has been in the non-unionized sector.15 Even there, however, few
organizations have actually developed a comprehensive conflict management system: one that links all dispute resolution
mechanisms - preventive and corrective - to serve the same organizational mission.16
Because of the variety and complexity of organizations, no single model or system is universally appropriate. Organizations
differ in a multitude of ways, including mission, culture, legal constraints, economic and political contexts, and pressure
points. All of these come into play when designing the appropriate dispute system for an organization.
The unionized workplace presents an especially difficult challenge for dispute systems design.17 Mutual suspicion can create
natural barriers to collaboration on developing dispute systems. For example, management may resist approaches to dispute
resolution systems that might give unions an opening for participation in organizational decision-making outside of the
collective bargaining context. Likewise, organized labor may be reluctant to embrace any dispute system proposed by
management and, in particular, may fear that such efforts could usurp the union’s role in protecting workers.
On the other hand, an organized setting is in many ways a particularly fertile ground for establishing creative and effective
conflict *346 management systems.18 Organized settings have a history of resolving disputes through negotiation. An
effectively organized setting has established procedures for protecting rights of both workers and management that allow for
an interest-based system to develop within the context of a well-established rights-based framework.19 When union and
management participate in developing and implementing a dispute system and commit to its success, the chances are high for
it to take root and to be used effectively and appropriately.
IV. Complexity and Dispute Systems
The burgeoning study of complex adaptive systems, a framework established within the physical and life sciences and more
recently applied to an increasing number of other disciplines, is most helpful in gaining perspective on the functioning of
organizations. A complex system consists of a large number of relatively independent parts that are interconnected and
interactive. Such a system is adaptive if the parts are agents that change their actions as a result of events occurring in the
process of interaction. Complex systems tend to evolve away from the extremes of complete order, on the one hand, and total
randomness on the other.20
*347 A central theoretical concept in the study of complex adaptive systems is self-organization: the unforeseeable formation
of regularities in patterns of interaction and selection that takes place through system constraints. One of the implications of
the way this self-organizing pattern development occurs in complex systems is that we simply cannot predict the detailed
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behavior of a human organization. Typically, however, leaders in both management and labor behave as though organizations
are quite predictable. They are surprised when a program that worked well in another organization does not lead to the
anticipated success when applied in their own organization, and then often attempt to shift blame.
Though the application of complexity science to organizational development is still in its infancy, there has already been
considerable examination of the importance of a complexity orientation in the workplace. 21 Lewin and Regine, for example,
did case studies of a number of highly effective organizations of various sizes and found a common thread of attentiveness to
complexity principles, even where there was no explicit understanding of these principles by organizational leaders. 22 Their
research led them to emphasize the importance of strengthening relationships and connections among employees and
managers within an organization.23 More attentive listening by managers, greater investment of time in conversations with
employees, and increased openness to differing opinions can have a positive impact on productivity and adaptability through
their effects on an organization’s emergent behavior. In one case study focusing on labor relations conflicts at a West
Virginia DuPont plant, Lewin and Regine found that when people simply started talking to *348 each other, workers and
management gained a much greater empathy for each other and productivity increased substantially. 24
In sum, organizations appear to function more like biological organisms than static, mechanical operations. Effective change,
including development of new systems for dealing with conflict in organizations, can be accomplished more readily through
the nucleation and growth of ideas, rather than through directed, massive transformations. Hence, there is a growing shift by
organizations away from hierarchical decision-making toward an emphasis on peer-to-peer and group-level
problem-solving.25 A complexity orientation suggests that conflict management within organizations may best be
accomplished with a relatively simple foundation of structure and procedures accompanied by flexibility, creativity, and
adaptability. Rather than imposing a rigidly defined process, designers of dispute systems should instead apply the simplest
rules possible and create a nurturing environment that focuses on robust communications and open learning.
V. DyADS: A Role for FMCS26
A neutral entity such as FMCS can help organizations develop DyADS to deal with conflicts in a variety of settings, and
especially in the unionized workplace, to address conflicts that are not ordinarily handled through an organization’s collective
bargaining agreement. FMCS has an established history of successful mediation of issues between labor and management
that provides it with unique experience, stature, and capabilities in the organized workplace. This history and experience
provide FMCS with the capability to assist both labor and management in addressing the tension between the ideal of
integrated conflict management and the reality of organizational complexity.
In organizational development, the term “dyads” denotes two units, such as labor and management, acting in concert as a
pair. As *349 an acronym, the “Dynamic” part of DyADS reflects the importance of continuous progress, marked by a
commitment of organizational energy. It also refers to the theory of “nonlinear dynamics,” the way in which small variations
can lead to vastly different results.27 “Adaptive,” in turn, underscores the need for an organization to adapt within its
changing context; the ability of an entity to reorganize itself quickly and effectively in the face of change can determine its
survival and success.
The DyADS initiative, as described in detail in this article, offers great promise in at least three distinct ways: (1) it leverages
FMCS’s expertise on the development of dispute systems design in the organized workplace; (2) it takes into careful account
the lessons learned from complexity studies, particularly the need for flexible, adaptable approaches that evolve from within
the organization rather than being imposed from outside; and (3) it applies methods of convening and facilitation that will
allow sufficient involvement of all the stakeholders in the design and development of workplace dispute systems.
Ideally, FMCS would seed core principles of dispute resolution systems design and help organizations harvest the benefits of
a dynamic, adaptive dispute system. Most of FMCS’s role in DyADS would utilize existing agency capabilities in convening,
training, and facilitating.
VI. What Is in It for the Parties?
As mentioned above, representatives of labor and management will likely have concerns that could cause them to resist
initiating a dispute systems program. It is, therefore, worth highlighting the potential for significant benefits to the parties.
A. Labor
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Given that the DyADS program is aimed at disputes arising outside of the collective bargaining agreement, it affords labor
the opportunity to expand its influence and enter new areas. Further, by *350 taking a major role in a process designed to
improve communications and relationships, unions will be able to act as champions for their members in making the
workplace a better place. In addition, employees often encounter difficulties in accessing the litigation system and, even
when they do, the process often proves stressful and unsatisfying as well as expensive.
B. Management
Management can hope to achieve significant gains in cost savings alone from developing an effective dispute system.
Unresolved conflict gets expensive: the costs of avoiding litigation, lost time, turnover, and lost business, as well as the
effects of conflict on long-term relationships cannot be overlooked. Moreover, a dispute system can help bring conduct in
alignment with organizational goals and values.
C. Overall
A dynamic, adaptive dispute system can produce enormous benefits to any organization. These include: reduced transaction
costs; higher performance and productivity; greater satisfaction with outcomes; better morale from improved workplace
communications and relationships; and more durable resolutions of conflict. At the same time, such a system can enhance the
ability of individuals and the organization as a whole to actually learn from disputes that do occur. 28
VII. Origins of DyADS
As noted in the Introduction, this project began in 2002 29 as an effort to formalize and enhance FMCS’s ability to assist its
clients in developing dispute resolution systems. The project started with a *351 survey of the current literature on designing
effective dispute systems.30 Many of the factors that arose as themes in the literature are synthesized in the foundational
DyADS principles summarized more fully in this article. 31 Along with the literature survey, a panel of nationally prominent
experts in the area of dispute resolution systems design agreed to serve as a roundtable think-group for this project.32
The resulting approach (DyADS), as described in this article, has evolved over a year of review of the relevant literature,
consultation *352 and discussion among the most qualified and experienced practitioners in the field of workplace dispute
systems design, and informal discussions with representatives from labor and management. While the conclusions and
recommendations are not the result of consensus from all these sources, they do represent a synthesis of their various
observations and suggestions. It is important to understand that, while DyADS was developed for FMCS use in a particular
context, it represents a new paradigm with wide potential applicability in organizational settings.
Dispute system design has been the subject of presentations at national dispute resolution conferences featuring, among
others, several members of the roundtable think-group from as early as the 1980s. Some of the nationally prominent
employers with established programs are Shell Oil, Haliburton, Johnson & Johnson, Coca Cola, PECO Energy, Eaton
Corporation, Prudential, General Electric, Sherwin Williams, the United States Postal Service, Siemens Corporation, Brown
& Root, and the United States Navy and Air Force.33 In fact, many were surprised by the results of a 1998 survey of Fortune
1000 companies regarding their use of alternative dispute resolution because a “significant number of respondents [reported]
that their companies had developed - or at least planned to develop - what can best be described as a conflict management
system.”34 Thus, an initiative in 2003 to encourage workplace systems design is not, in and of itself, groundbreaking.
However, the DyADS program is innovative because it encourages cooperation between labor and management to create
dispute systems in the organized workplace for conflict arising outside the *353 boundaries of collective bargaining, and
because it takes a complexity-oriented approach that emphasizes “bottom-up” design rather than “top-down” imposition of a
system.
VIII. Foundational Principles for FMCS’s DyADS Initiative
As discussed above, the goal of a DyADS is not simply to establish a more efficient and collaborative method for solving
disputes, but also to contribute to a more open, cooperative, and congenial workplace. Fundamental to DyADS is
appreciating that differences are not a problem to be avoided but a source of strength and creativity to be accepted and
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understood, and that people can work together cooperatively and effectively even during times of stress and conflict. To
achieve this goal, DyADS should reflect the following minimum set of characteristics, as discussed in detail below.
A. Inclusive
In creating its own DyADS, an organization should employ an inclusive process involving key users from both labor and
management in defining dispute resolution needs, goals and options. 35
1. Rationale
The primary goal for DyADS is to create a dispute resolution system that is in keeping with the spirit and specifics of the
collective bargaining agreement and will also encourage better individual and intergroup relationships, more creative
problem-solving, and more efficient and less costly ways of settling disputes. A secondary goal is to help promote a more
productive and cooperative workplace environment. As such, participant involvement in the planning process is key because
these goals would all be undercut by the imposition of a dispute resolution system from the outside or the creation of a
system that does not involve all participants in a significant way from the beginning.
2. Overview
The process of creating the DyADS can be more important to the success and acceptance of the system than the actual
content of the *354 dispute system itself. Without participant involvement, key parties are considerably less likely to embrace
and utilize the new system. Based on the experience of the authors, the failure to incorporate such a concept has led to the
rejection or under-use of many beautifully crafted systems because the participants did not feel any ownership in the process.
At a minimum, potential users should have an effective means of inputting their ideas into the system. However, more
involvement is needed in an organized setting than in an unorganized setting because of the dynamics between labor and
management. Representatives from labor and management will need to be part of every stage of the design and
implementation process, including the decision to explore DyADS, the decision to solicit the assistance of an organization in
designing a DyADS system, and the monitoring and evaluation of the system. If the system will be utilized by those who are
not represented by a union, some additional means of soliciting input from these employees will also be important.
There is an important role for a DyADS consultant36 to play in helping this process occur in a way that is in keeping with the
spirit, goals, and purpose of DyADS, but both labor and management representatives should have the responsibility of
informing their own constituencies about the DyADS process and of soliciting their input. While outside consultants can
provide experience, perspective, and insight, they can never replace the wisdom and understanding of those who spend their
working lives within an organization. Without the very active involvement of workers and management in designing the
system, it simply will not be as effective as it might otherwise be.
To be successfully operated and managed, a system will also require the active involvement of internal people. Those who
have been involved in designing will not only be the best advocates for the system, but they are likely to play key roles in the
implementation process. The nature of this involvement will depend on the particular nature of the union-management
system in an organization. In designing procedures for each workplace, special consideration should be given to how to
solicit the participation of people in geographically dispersed workplace settings from different shifts, different job
categories, or different cultural groups within the workplace.
*355 In some respects the collection of data will be easier in an organized setting because labor and management tend to have
systems already in place for obtaining input from their constituencies. However, these systems can cause obstacles as well,
because they are sometimes set up in a way that reinforces a rights-based or power-based approach to conflict. These
approaches may conflict with an important hope of DyADS to incorporate more creative problem-solving approaches. Those
attempting to modify these existing systems also can run into considerable resistance. As a result, some of the most important
work in making a DyADS system effective will require active employment of the principles outlined in this section. Active
involvement of labor and management from very beginning of the process will greatly increase its likelihood of success.
3. Example37
Input for the implementation of a DyADs system can be obtained in many ways. In this article we suggest some specifics for
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how to convene and conduct an assessment, design, and implementation process. One method that has been utilized
successfully in a number of different workplaces is to convene a planning group consisting of three or four representatives
from management and labor who are assigned the task of guiding the whole planning process. This group is self-selected by
union and management, and with the assistance of a consultant they design a process for input, system design, and small
group work on specific aspects of the design and implementation process. They decide what training might be useful as part
of this process, whom to select as a consultant, and when to take a proposed approach to larger segments of the organization
for further discussion. In other words, they work as a key coordinating group, but are not viewed as the sole source of input
and comment on the DyADS project.
Sometimes, the consultant acts as a convener and helps to establish criteria and to design a process for selecting this planning
group. This will occur when the consultant has been selected by union and management representatives prior to the
establishment of a planning group for a DyADS project. The consultant can help explain the nature of a DyADS and ensure
that the participants in the planning process understand their role and are supportive of the DyADS system. At other times,
this group may be responsible for selecting a *356 consultant and ensuring that this person has the support of the different
parts of the organization. In this sense there can be a chicken and egg dilemma. The consultant can help create an effective
planning group, but the planning group will feel more buy-in to the particular consultant if they have had a role in
interviewing and selecting consultants.
B. Incremental
Rather than beginning with massive system overhaul, an organization should engage in an incremental, experimental,
reflective process consistent with the organization’s goals and needs, and building on existing strengths. The “systems” part
of this process involves focus on effective connections between elements and prioritized development of organization-wide
practices and support structures.38
1. Rationale
Change in complex systems does not normally occur through a straightforward process of rational planning or in one massive
effort but rather through an ongoing process of adaptation and system reorganization around incremental inputs. In addition,
change in the culture of disputing within organizations can normally occur only from within the existing culture.
To ensure that a redesign effort is likely to succeed and result in its intended benefit, several factors must be present:
(a) an understanding of how an existing system works, its strengths and weaknesses, and the forces that promote and hinder
change in the system;
(b) clarity about the goals of change and rationale for expending resources on a change effort;
(c) focus placed on one or two key changes that can be catalysts or focal points around which the overall system can
reorganize;
(d) a built-in process for ongoing reflection, adaptation, revision, and evaluation;
(e) continual involvement of key players and groups in this reflection process;
*357 (f) modesty about the ability to control how a new system will adapt to new inputs and willingness to learn from what is
happening in a non-defensive and open-minded way;
(g) attention to how parts of a system interact as much as to what occurs within any given process.
DyADS integrates these success factors and takes a dynamic, adaptive, systemic approach and helps bring about major
change by focusing on smaller rather than larger reforms.
2. Overview
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All organizations have dispute systems, some of which are intentionally created. All of these systems have evolved for
reasons rooted in the organization’s history and environment. Furthermore, each of these systems has strengths and
shortcomings. Unless the system is massively dysfunctional, it is almost always wiser to begin with an incremental approach
to dispute systems design reform and to focus on a few key areas that will lead to a change in the overall system. As new
procedures or approaches take root within an existing system, other modifications and initiatives may need to be considered.
Therefore, an incremental approach to design is more likely to be effective than an attempt to impose entirely new systems
and procedures all at once.39
For example, new approaches to dispute resolution sometimes result from collective bargaining agreements, and occasionally
these agreements push a process forward before the organization is ready to go through a genuine change effort. When the
agreement is the driving force for change as opposed to the key players in an organization, the change process can easily
become formulaic or superficial, rather than organic and genuine. This makes it all the more important to take an incremental,
reflective, and iterative approach in the implementation of these changes. Such an approach can also give key stakeholders
time to accept the changes.
*358 Usually, the best place to start in a change effort is to build on the strengths of an existing system. For example,
sometimes the relationship between human resources representatives and shop stewards 40 in a steward system is
characterized by hostility and mistrust, but the steward system has a great deal of credibility among workers. The challenge
then is to utilize the credibility of the stewards while looking at ways to improve the interaction among stewards and human
resources representatives, rather than to bypass these people entirely as some dispute systems attempt to do.
Often, the focus in dispute system design is on new components to an existing dispute system (e.g., introducing mediation, a
cross-group advisory panel, an ombuds function, or an evaluative fact finder). While each of these can be an important and
effective element in a dispute system, each is a tool to achieve a goal, not the goal itself. Too often whole design efforts are
focused on how to make mediation work or how to make an ombuds office effective, rather than how to improve
relationships, decision-making, dispute resolution, and communication. However, if we are to take a genuinely systemic
approach to DyADS, the focus should be on the interaction of parts of the system as much as on any one aspect of the system
itself.41
At first this may seem difficult and counterintuitive because it is easier to focus on mechanistic planning processes and
individual component parts. Yet creating an effective partnership of labor and management to review and revise a system for
handling conflict may be more important to long-term success than any particular procedure. There is a certain well-deserved
cynicism about many of the new organizational initiatives or management philosophies that seem to emerge all the time.
Workers and managers alike are suspicious of approaches that claim to offer a whole new way of doing business that will
profoundly alter everything about an organization.
DyADS does not claim to be an approach that will save organizations, change the whole nature of labor management
relations, or usher in a new era of corporate enlightenment. Instead, DyADS offers something very simple - a way to work on
intentionally improving how disputes are handled and decisions are made. People are *359 much less resistant to working on
improving the way things are done, to introducing incremental change, or to trying new approaches within an existing system
than they are to signing on to a massive change effort. If these new incremental approaches seem to work, then labor and
management may be willing to try additional initiatives that build on the previous ones. Change that does not occur
incrementally, reflectively, adaptively, systemically, and iteratively is often unwise change or change that requires more
energy than the returns merit.
Paradoxically, a DyADS approach can help bring about major change by focusing on smaller rather than larger reforms. A
DyADS approach can be a catalyst for change and systems reorganization when organizations are at a point at which a new
adaptation can take root, when labor and management are ready to change something about how they relate to each other, and
when significant numbers of individuals want a change in how an organization handles the problems or dilemmas that come
up. Making broad change happen through intentional planning is extremely difficult, but a seed can be planted: if the ground
is fertile and the seed is nurtured, it can sprout with sometimes surprising results.
Because the goal of a DyADS is to bring a new spirit and approach to how problems are dealt with in an organization,
implementing DyADS requires the commitment of considerable time and energy. The motivation for people to commit to this
effort is the desire to implement a different vision for an organization. Therefore, the DyADS process requires a broad vision.
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At the same time, the actual steps taken need to be strategic, specific, and focused.
3. Example
A transportation company experiences a great deal of disruption because of poor morale, an enormous backload of EEO
complaints, bad relations between managers and workers, cumbersome procedures for dealing with complaints about unfair
treatment or harassing behavior, and a particularly dysfunctional relationship between the president of the union local and the
director of human resources for the company. After a series of discussions with a DyADS planning team, a number of options
for systems change are identified. These include:
(a) the adoption of mediation as part of the EEO process;
(b) a redesign of the stages of the EEO process to provide more support for early stage negotiation processes;
*360 (c) clearer and quicker referral of unresolved issues to arbitration;
(d) regular, facilitated meetings among representatives of different segments of the organization to discuss issues of climate
and communication in the workplace;
(e) joint conflict resolution training for management and workers (including union leaders);
(f) mediation of a few particularly divisive complaints; and
(g) coaching/facilitation assistance for the labor leader and the director of human resources to help them work together.
While it is clear that there is no one perfect place to start, it is also clear that the worst intervention would be to try to do all of
these at once. This would tax everyone’s resources, breed resistance and cynicism, and perhaps disrupt as much as improve
interactions. After looking at the existing strengths of the organization, looking at the interaction between different parts of
the system, and focusing on the one or two interventions that might lead to a system reorganization, a decision might be made
to start by working with the local president and the human resource director and to institute a process for informal, early
facilitation of EEO complaints. From there, other steps might be initiated as part of a system that is open to feedback and
adaptive to the results of any initial changes that are made.
C. Interest-Based
As much as possible, a DyADS should allow and encourage parties in conflict to make decisions and resolve conflicts on the
basis of needs and interests.42
1. Rationale
Three kinds of interests43 are generally present in workplace disputes - substantive, procedural, and psychological.44 There is
a greater likelihood that all three kinds of interests can be addressed *361 by creating approaches that encourage direct
decision-making by participants and that also promote a focus on the interests of the parties rather than on a simple analysis
of rights and obligations.45 A key challenge for a DyADS system is to develop mechanisms that balance respect for the
overall needs of an organization and its internal groups with an appropriate focus on the needs of the specific individuals
involved in workplace conflicts. Furthermore, it is important to ensure that individuals are not isolated from the support
systems that provide them with protection and reassurance.
2. Overview
Collective bargaining agreements, equal employment regulations, and other policies regarding workplace relations exist in
part to clarify the rights and responsibilities of workers and management and to assure a certain equality of treatment and
expectations. Without the protection of these policies and standards, individual workers have historically been more
vulnerable to manipulation and exploitation. Once a clear and appropriate collective rights framework is in place, there
should also be room for individual solutions to individual problems, based on how to address individual needs. The DyADS
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approach does not in any way substitute for policies and agreements set in place to provide a safe and welcoming workplace.
It is designed not to weaken collective agreements in any way. A DyADS does, however, supplement and balance these
policies and agreements in several ways.
First, a DyADS encourages individuals in conflict to find solutions to their own conflicts and gives them multiple
opportunities to make their own decisions about resolution, sometimes with the assistance of third parties. Second, a DyADS
approach encourages people to think beyond their own rights and obligations to what can be done to meet the needs of each
of the parties to a dispute. The hope is that in discussing how to solve a conflict, parties will think creatively *362 about what
is really important to each of them and will not simply attempt to figure out what a relevant statute or company policy
dictates.
This does not mean that relevant agreements or policies should be violated. Rather, it suggests that they form the framework
within which creative problem-solving and interest-based negotiations can take place as part of a DyADS. In practice, this
means that whatever specific mechanisms are put in place to encourage individuals to make their own decisions about how to
resolve their conflicts, those individuals will need support and advice to help them articulate their concerns and needs, to
listen to those of others involved, and to maintain an open mind about how those needs can be met.
3. Example46
An employee claims that a manager has consistently assigned him the most difficult tasks and has provided the minimum
support to accomplish these tasks. He files a complaint alleging that he is being discriminated against because he is the oldest
person on the team and comes from a different ethnic background than the manager. The manager claims he is operating
completely within his rights as a manager to make workplace assignments in accordance with his best judgment, that none of
the tasks were outside the worker’s job responsibilities, and that he had valid reasons for making each of the assignments that
were made.
A solution to this situation could be reached by presenting this case to an adjudicative body on the basis of established
policies about discrimination. Advocates for the manager and the worker could argue this case, with or without the direct
participation of the manager or employee. In arguing the case, these advocates could rely on relevant statutes, company
policies, and precedents set by previous conflicts. But unless the employee and manager are directly involved in the
discussions and decision-making, one or both of them will likely feel unhappy with the results and with the process.
Furthermore, it will be difficult to arrive at an outcome that addresses their particular concerns without their active, direct,
and even primary involvement in decision-making. Even with their involvement, the real problems they are experiencing are
unlikely to be addressed if the *363 conversation remains primarily on the level of rights and responsibilities and does not
address the particular needs or concerns each has about this situation.
If a more interest-based framework47 is maintained, some very important needs may be discovered. For example, it may be
that the manager is concerned about the impact that the worker is having on new employees and is trying to keep him
separated, that the worker is the most able employee to fulfill certain tasks, or that the manager feels the employee needs
direct supervision. From the worker’s point of view, the problem may be one of saving face in front of other employees, of
concern about his ability to perform certain tasks, or of not wishing to have to work with a particular co-worker all the time.
If the discussion focuses only on rights and responsibilities and not about underlying needs and concerns, it is possible that
the real issue will never be dealt with and the right solution for the wrong problem will be imposed.
As an alternative, a DyADS seeks to initiate processes that encourage the kind of direct involvement in decision-making and
a focus on the underlying interests that help parties address their genuine concerns in a direct, respectful, and effective
manner.48
D. Multiple Options
A DyADS should include more than one process option and more than one easy-to-access route to accommodate the different
needs of disputants.49
*364 1. Rationale
A critical component of an effective DyADS is that it encourages people to deal with their workplace disputes sooner rather
than later and directly rather than indirectly. Choice of approach and ease of access are two important factors in encouraging
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people to deal with the issues they have in a straightforward and constructive way. First, the more clearly workable choices of
resolving a dispute people have, the more likely they are to take advantage of a DyADS. Choice itself is usually encouraging
to people in conflict but, more to the point, different people will be able to find different mechanisms more in keeping with
their needs in conflict.
In addition, ease of access will eliminate any obstacle to beginning a dispute resolution process and will deter a certain
percentage of people from using it. Usually, the best and easiest access is one that requires no more than one phone call.
Multiple phone calls, forms, or documentation will discourage people from using a DyADS process.
2. Overview
People in conflict want choices: both whether to deal with a conflict and how to deal with it. A DyADS should not take a
“one size fits all” approach to dispute resolution. Instead, a DyADS should be flexible and provide for several different
approaches that disputants can choose from and should ensure that each of these approaches is easily understandable and
accessible. Some parties may prefer direct, face-to-face, unassisted processes, while others may prefer minimum direct
contact or maximum third-party assistance. In the case neither party agrees to the same approach, a DyADS will have to
develop mechanisms for helping parties choose which approach to start with.
A DyADS should also be easily accessible. If the process of utilizing a DyADS is too complicated, logistically or
emotionally, then the system will be underutilized or avoided. Any time a new procedure is introduced into a workplace,
there is a tendency for parties to resist. Even after a new system becomes familiar and accepted, ease of access will continue
to be an important determinant of whether people will take advantage of it. One of the greatest problems a DyADS will have
to overcome is the natural tendency of people to avoid conflict, particularly in workplace settings. This avoided conflict does
not generally go away but rather is manifested in passive-aggressive behavior, lowered morale, or “gunny-sacking.”
“Gunny-sacking” is conflict that remains unexpressed until some precipitating event *365 occasions the airing of past
resentments, often in an unproductive way.
3. Example
In some settings, there is a single phone number for someone to call from anywhere in the organization to initiate a DyADS
action. Often this hotline is supplemented by a website and information brochure. Once this phone call is initiated, the
disputant is offered several clear choices for how to proceed. These might include:
(a) talking with a DyADS coach about how to deal directly with the person involved in the dispute;
(b) initiating a facilitated discussion with others;
(c) filing a more formal complaint which can lead to mediation or some kind of adjudication;
(d) discussing the issue with others in the organization who may be able to address the problem in some way; and
(e) doing nothing.50
Each of these approaches is legitimate under the right circumstances. The role of the DyADS point person is to help the
initiator think through the pros and cons of these options and decide how to proceed.
E. Robust Communication
A DyADS should emphasize frequent and robust communications within the workplace and create an environment for full
exploration of differing opinions and ideas. The organization should expressly prohibit any form of reprisal or retaliation for
participation in any DyADS process.51
*366 1. Rationale
Effective dispute resolution is closely connected to the culture of communication and problem-solving in an organization. For
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a system to be truly dynamic and adaptive, ongoing inter-group communication is essential. If an organization’s culture is
characterized by openness, security, optimism, and creativity, then the differences that develop will be much more easily
dealt with, regardless of the dispute resolution system. A DyADS can be an impetus for creating a culture of communication
and problem-solving, thus reinforcing the most positive elements of organizational communication.
Furthermore, participation in any dispute resolution process should be free from retaliation (or even perceived retaliation). No
one’s sense of personal or professional security should in any way be threatened by participating in a DyADS. It takes just
one instance of retaliation (or even perceived retaliation) to undercut a whole system. If someone is less likely to receive a
promotion, raise, or desired job assignment because of their involvement in a DyADS, then the system is not going to work
as a mechanism for encouraging people to raise their concerns and air their conflicts. 52
2. Overview
Multifaceted communication is an essential part of an effective workplace. A DyADS should reinforce this type of
communication at every opportunity by establishing multiple routes of communication, encouraging direct communication as
much as possible, developing mechanisms that encourage people to air their differences frankly, and providing third-party
assistance where appropriate to enhance communication.
In addition to a positive and proactive approach to enhancing communication, a DyADS program needs to address some
specific negative incentives to communication as well. In particular, it is important to ensure that no one is subjected to direct
or indirect retribution for participation in a DyADS process. Several steps should be taken to ensure this. To decrease the
likelihood of retaliation, the first and most important thing is to make a clear commitment to no retaliation and to establish a
procedure for protecting people if retaliation of some kind occurs. Management and labor should make an *367 express,
written commitment that there be no negative consequences to anyone because of his or her decision to initiate or take part in
a DyADS. A clear, unambiguous commitment to this can go a long way to ensuring that it does not happen. A second critical
step is the way in which this system is presented, explained, and utilized. The surest way to guard against retaliation is (a) to
deal with the most serious underlying problems, structural or relational, that an organization faces; and (b) to reinforce an
organizational norm that says it is healthy to air and discuss conflicts and that such discussion is encouraged by the
organization.
This does not mean that someone suddenly becomes immune from the consequences of his or her actions by participating in a
DyADS. It does mean that there should be no negative consequences resulting from the decision to utilize the dispute
resolution mechanism or from statements and actions occurring as a legitimate part of DyADS participation.
Written commitment should be backed up by the personal commitment of all involved in creating and maintaining a DyADS.
Much retribution is informal, subtle, and hard to prove. In addition to the formal commitment, there has to be a commitment
by all who have agreed to a DyADS to lend their personal support to encourage people to use the DyADS and to counter any
informal tendency to retaliate against people who raise a concern or utilize a dispute resolution mechanism.
3. Example53
An older female employee working in a secretarial position feels that she has been passed over for promotion several times in
favor of younger staff, some male and some female. She files an age discrimination complaint against her supervisor, with
whom she has worked for thirteen years. This is a risky move from her vantage point because there are other upcoming
promotional opportunities that she is in line for and because she is dependent on flexibility in her working hours in order to
take care of an ailing spouse.
However, there is a clear written policy against any retribution or negative consequences for using the DyADS approach, and
both the head of Human Resources and the union representative have assured her that they will support her against the
possibility of retribution. The DyADS coordinator encourages both the worker and the supervisor to discuss their concerns
directly and frankly with each *368 other, after preliminary discussions with a DyADS coach. If after an initial informal
discussion either wants to use a mediator, they both agree they will do this.
F. Internal Neutral
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performed by a single person, an office or group of offices, or a committee within the organization - to help develop,
implement, coordinate and/or evaluate DyADS options, champion core concepts of the DyADS throughout the organization,
and perform other related tasks as the organization may determine. Best practice includes an ombuds-type function, but there
are a variety of potential arrangements that could be examined. 54
1. Rationale
DyADS are about changing the way people relate to conflicts, communication, and problem-solving in an organization.
Unless this system is managed by people who are provided the time and independence to focus on this agenda, it is unlikely
that the potential of DyADS to impact decision-making and dispute resolution can be realized. Someone with independence
and accountability must champion this system and take responsibility for its overall functioning. Furthermore, both union and
management have to buy into the overall concept and into the individuals selected to fulfill the role of an internal neutral
party. While the individuals playing this role may or may not act as mediators, fact-finders, or facilitators, they need to have
an adequate understanding of these and other aspects of a dispute resolution system in order to help people understand their
choices, evaluate how well different components of the system are operating, and understand key issues of linkage among
dispute resolution processes. Finally, individuals championing the DyADS program need to believe in the value and potential
of DyADS along with a commitment to defining and using constructive approaches to dispute resolution.
*369 2. Overview
Effective DyADS can take many different forms. The whole presumption of DyADS is that there is no single correct
template or system that can be applied to the many different kinds of organized workplace settings. Many variable factors
will determine the specifics of a DyADS in any given place. These factors include: the organizational culture, the history of
labor relations and problem-solving processes, the kinds of conflicts that predominate, the systems already in place, and the
strengths of current staff and processes. Furthermore, over time, a DyADS will evolve and adjust to changing circumstances
and the organization’s responses to it. What defines an effective DyADS is not one single approach but the underlying
principles that are discussed in this section. There are, however, certain features that will characterize almost all effective
DyADS. One of these features is an internal neutral coordinating role. This role can take many different forms and fulfill a
broad range of functions, but at a minimum it will have the characteristics listed below.
Both labor and management will participate in the design of the role and the selection of the individual or group to fulfill it.
Labor and management will also play a role in evaluating how well this neutral function is working and in any efforts to
redesign it. The responsibility of the person or people fulfilling this role will be to the strength, integrity, and effectiveness of
the overall DyADS and the functioning of DyADS on a case-by-case basis. This means that those playing this role are not
expected to advance the interests of either labor or management. On the contrary, they should be committed to the notion that
ultimately both these parochial groups will be best served by a neutral, well-functioning, and broadly supported DyADS.
An internal neutral party will have some insulation and protection from immediate, day-to-day pressures or accountability to
either labor or management, while his or her longer-term accountability is to both. He or she will devote enough time to this
role to allow for all the necessary responsibilities to be fulfilled in a timely and consistent manner and will have a good
understanding and appropriate training in relevant conflict resolution approaches. The people fulfilling this role will work to
ensure that the principles of an effective DyADS are maintained and will promote the appropriate use of DyADS throughout
the organization. They will also have the responsibility for making recommendations about modifying the system.
There can be many variations in how this role is fulfilled, including:
*370 (a) it may be fulfilled by either an individual (such as an “Ombudsman”) or by a group of people;55
(b) it may either be the only role someone plays in an organization or one of several roles;
(c) it may include a formal mediation or facilitation function, or these functions might be fulfilled by others; and
(d) it may include a data collection function, or that function may be fulfilled in a different way.
There are other variables as well,56 and crafting the specific nature of this function will be one of the key tasks of the DyADS
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design process. Whatever the specific decisions made about how to implement this function, it is unlikely that a DyADS
system can work without somebody fulfilling this role. Ultimately, the person in this role should be accountable to the entire
organization, and this means to both union and management. If they are not given some insulation from the day-to-day
pressures that can be put on them by any one particular segment of the organization, they will not be able to play the
independent role that is needed, and they will easily get caught up in existing conflicts or old and unproductive ways of doing
things. This means that a great deal of thought has to be given to how to provide both independence and accountability for
the DyADS managers. One hallmark for how serious a commitment is being made to a DyADS is the amount of resources,
support, and authority given to the people fulfilling this role.
3. Example57
A large international organization with offices in many countries has its headquarters and about half of its employees located
in a U.S. *371 city on the East Coast. As a result of some particularly difficult disputes that have soured the overall climate of
relations between workers and management, new dispute resolution procedures are initiated, and as part of these an office of
the Ombudsman is established. The nature of this office varies over time, and every two years representatives from labor,
management, an outside consultant, and the current Ombudsman will participate in a formal evaluation of the functioning of
the overall dispute system and the office of the Ombudsman in particular. Subsequent to this, a head of the office of the
Ombudsman is appointed. In this organization an Ombudsman may serve two terms, but no more, in the belief that this will
guarantee both accountability and independence for the person in that position. The budget for the office is established every
two years as well, although it can be modified annually.
Once an Ombudsman is appointed, he or she is given full authority to hire staff within budget parameters and to oversee the
program. There is also an advisory committee, which meets quarterly to discuss the program’s functioning and to provide
advice and feedback to the Ombudsman. This committee consists of representatives from labor and management (usually
including those who will evaluate the Ombudsman after two years). The Ombudsman oversees the work of a number of other
people who provide services within the system. These include mediators, coaches, and fact-finders. In a couple of the larger
branch offices, there is an independently appointed Ombudsman who functions in a similar way, but the central office
Ombudsman supervises the system in all locations.
In addition to supervising the system, the Ombudsman provides some direct services, most of which involve the facilitation
of larger group issues and the provision of conflict resolution training. While the Ombudsman is nominally free to operate the
program within the parameters of financing and the agreement covering this system, it is also clear that the Ombudsman
needs to take feedback seriously in order to maintain overall credibility for the system.
G. Continual Refinement
An organization should commit to create, review, and refine its DyADS over time in a way that applies organizational
learning.58
*372 1. Rationale
A DyADS benefits from and can contribute to an environment characterized by organizational learning. A learning
organization is one committed to systemically promoting the processes and atmosphere of organizational self-examination,
staff development, and dissemination of important knowledge and insights throughout the organization. When such an
atmosphere exists, it will be natural and practical to apply it to the implementation, review, and refinement of a DyADS. The
result is long-term effectiveness and durability of the DyADS program.
2. Overview
Too many potentially valuable initiatives fail because they are neither customized nor adjusted to the needs and culture of a
particular organization. One cause of an inadequately crafted or tailored program is that it is initiated too quickly and does not
have built-in mechanisms for ongoing review and revision. The best model or program will only work if it is created and
modified using the experience and knowledge of the organization. Where an organization has not fully developed its capacity
to be a learning organization, DyADS can become a catalyst or force for change toward becoming a learning organization in
several ways:
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(a) the DyADS approach to ongoing review can help establish a norm or expectation for organizational learning;
(b) many of the disputes that come to a DyADS can involve issues of significance to the larger organization and thus may
provide opportunities to experience organizational self-examination;
(c) organizational learning is promoted by good organizational relationships. 59 An effective DyADS can contribute to this.
These are examples of how an effective DyADS can interact with an organizational culture in ways that adjust to the culture
and hopefully impact it in a constructive way. In this sense, DyADS may be considered a very important element in creating
a self-reflective learning organization.
While it may be that there are good intentions to incorporate organizational learning when a DyADS is initiated, it is easy to
overlook the process of review, evaluation, refinement, and revision as the *373 ongoing demands of organizational life
intrude. Two elements can help ensure that this critical component of a DyADS will occur. One is an initial commitment by
all partners to the DyADS to do this, a commitment that is clear, spelled out, and realistic. The other is the allocation of
sufficient resources to make sure this happens.
3. Example60
A dispute resolution system is introduced into a large organizational setting. An important part of the system is the
establishment of a coaching program for all those who find themselves engaged in or having to manage a conflict that is
under the auspices of the DyADS. The coaches are trained dispute resolution specialists who work in the organization. Some
come from management, some from the union, but all are given the task of providing confidential advice and coaching to
people who are engaged in conflict. Generally speaking, whenever someone wants this assistance, he or she contacts the
DyADS coordinator who then assigns him or her a coach from a different division of the agency. The coach has no direct role
in negotiations, mediations or any other conflict resolution process in this particular case and is allowed to maintain the
confidentiality of all the information he or she receives.
On paper and according to the initial views of the planning group, this coaching system seems to make a lot of sense. It meets
the most clearly articulated needs of many of the people in the organization to have confidential advice and support about
how to proceed with a conflict. But over time, very few people choose to make use of this service, which results in a group of
trained but underutilized, and therefore frustrated, coaches. Upon further consideration and discussion, the problem seems to
be that employees do not genuinely view their coaches as advocates for them, nor do employees trust that coaches are not in
some way representing the larger needs of the organization or union as opposed to the specific interests of the employee.
The DyADS steering group decides to experiment with a couple of alternative models. One involves reconceptualizing the
coaches as advocates who can, if necessary, attend mediation or negotiation sessions. A second model is to offer some
coaching from outside consultants. There is some minimal use made of the “advocates” but considerably more use made of
the outside consultants. Most people *374 seem to prefer to use the ombudsperson, a colleague, a union representative, or a
supervisor for internal coaching. This is hard for the trained coaches who want to play a useful role and who have become
quite interested and excited by their potential work. Some of them are able to play other roles within the DyADS, but scaling
down the coaching program is a key - in this organization - to making DyADS a realistic and workable program. The changes
are accepted and the norms of flexibility and adaptability are reinforced because all of the discussions about what to do have
been open, have involved a range of interested parties including the coaches, and have utilized the approach of a learning
organization.
H. Respect for Collective Bargaining Agreement
DyADS must not be allowed to undermine any aspect of an existing collective bargaining agreement or any other workplace
rights created by the Constitution or statute.61
1. Rationale
When workplace rights are well established and institutionalized, cooperative working relations are enhanced, and from this
platform, effective dispute resolution systems can be created. Nothing in this or any other program should be about
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substituting conflict resolution procedures for well formulated and protected workplace rights frameworks. 62 Instead, the
entire construction and implementation of a DyADS is carried out with respect and appreciation for the importance of the
collective bargaining relationship.
2. Overview
The whole intention of DyADS is to enhance the ability of employees and management to work out, in a constructive
manner, the issues that arise. A fundamental underlying assumption is that this must be done with full respect for collective
bargaining agreements and all other frameworks that allocate rights in the workplace. The strength of these frameworks,
which have evolved over so many *375 years, is exactly what makes an effective DyADS possible. Without these
frameworks, any attempt to create a dispute resolution system could very easily become a mechanism for undercutting efforts
to create a strong rights-based framework governing workplace relations. Therefore, the structure of DyADS and the means
by which it is created, implemented, evaluated, modified, and monitored must be consistent with collective bargaining
agreements and must be supportive of those agreements. Hopefully, an effective DyADS can even strengthen these
agreements by encouraging a constructive overall working relationship among all participants in an organization. An
effective DyADS system should provide a way to quickly address a concern that the DyADS is inappropriately impacting
workplace rights or collective bargaining agreements. Ultimately, DyADS will require the full support of both labor and
management to be effective in changing how workplace disputes are handled.
3. Example
An organization with a strong history of collective bargaining establishes a DyADS process to deal with conflicts concerning
discrimination and harassment in the workplace. Several complaints have been brought to the DyADS about unfair
assignment of overtime based on age and gender. Normally these complaints would be handled by the grievance process as
outlined in the collective bargaining agreement. But in these cases, several employees have expressed a preference to work
out the issue using a DyADS mediator. The union representatives on the DyADS steering committee have expressed a
concern that this could be a trend, perhaps encouraged by management, to steer complaints away from the grievance process
and towards the DyADS process. Because of the commitment of those involved in DyADS not to compete in any way with
the collective bargaining process, these cases are referred to the grievance process with the provision that if union and
management ever agree that they should be referred back to the DyADS mediators, that could still occur.
IX. Activities to Champion DyADS in the Organized Workplace 63
The DyADS program defines the role of FMCS or a similar neutral entity as supporting the systems design effort in the
organized *376 workplace rather than prescribing a conflict management system product. FMCS concluded that a possible
role for a neutral entity in the DyADS program is to offer to provide or to support the provision of the following services:
(a) promote the use of DyADS to the labor and management communities;
(b) provide convening services to both labor and management regarding dispute systems;
(c) facilitate the DyADS design negotiations for a given workplace;
(d) support training for key personnel implementing a DyADS project;
(e) provide technical support for implementation of a DyADS project; and
(f) evaluate the effectiveness of systems created by DyADS.
A. Promote
Promote the use of DyADS to the Labor and Management communities.
1. Overview
The objective is to encourage labor and management to consider jointly designing complex adaptive systems for workplace
disputes not addressed by their collective bargaining agreement and to inform them that a neutral entity is available to assist
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in the process of exploring, negotiating, and implementing these systems. While there is precedent for labor and management
in a given workplace to engage in this type of project, such engagement is rare. The process usually consists of mechanical
referral of specified types of conflicts to specified processes, and it is usually initiated by management and acquiesced to by
labor. Most local labor and management leaders are so committed to resolving the collective bargaining agreement grievance
of the day that they need to be reminded about the possibility of jointly creating systems to address conflicts not covered by
the collective bargaining agreement.
DyADS will need to be promoted because there are reasons for both management and labor to be wary of the DyADS
approach. DyADS could be perceived as undermining the collective bargaining *377 agreement or otherwise diminishing the
union’s role in the workplace. DyADS could also be perceived as involving labor in matters that are currently management
prerogatives. Both labor and management will need to be convinced of the value of a DyADS in order to overcome the inertia
of the status quo and to invest the energy and time for change.
DyADS needs an advocate64 to educate both labor and management of the project’s opportunities and contributions. It can be
presented to labor as an opportunity to expand its influence by participating in the creation of systems that address issues
beyond the scope of the collective bargaining agreement. Further, involving labor as a co-creator of the program creates a
greater likelihood of utilization. DyADS can be presented to management as an opportunity to create a workplace culture and
the methods by which conflicts can be addressed constructively, saving the expense and distraction of litigation or
administrative complaints, or the inefficiency of sabotage or low morale.
B. Convene
Assist organizations in determining whether a DyADS project is worth pursuing in a given workplace.
1. Overview
The objective is to help the parties: (1) determine whether a DyADS initiative is likely to be productive, and if so, (2) make
initial recommendations about how to structure those negotiations most effectively. In certain public policy and complex
private sector negotiations, potential participants often retain the services of a neutral convener to help the parties accomplish
the objective. A convener can evaluate whether and how such negotiations may be structured and launched.
Similarly, an organization contemplating a DyADS project could benefit significantly from the services of a neutral
convener:65 someone who can meet with representatives of both labor and management to determine whether DyADS design
negotiations can be *378 productive, and if so, under what circumstances. More specifically, the convener would attempt to
identify:
(a) whether any conflict management issues exist within the organization that could benefit from a collaborative review by
labor and management;
(b) whether these issues are sufficiently important to both labor and management to merit their time and attention;
(c) whether both labor and management are willing to commit the time (and, perhaps other resources) to make DyADS
negotiations productive; and
(d) whether there are other issues facing that particular workplace which would promote or hinder productive negotiations.
The convener would then make specific recommendations for labor and management to consider in structuring their DyADS
negotiations.
C. Facilitate
Facilitate the DyADS design negotiations for a given workplace.
1. Overview
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In the same way that labor and management assess whether a neutral mediator can be of assistance when negotiating a
collective bargaining agreement, labor and management should consider requesting the assistance of a neutral facilitator
when negotiating the establishment of a DyADS. The decision of what to create must still be determined by the consensus of
the parties, but a neutral mediator like FMCS66 can add value by facilitating those negotiations. The issues to be negotiated
might include:
(a) which types of situations the DyADS program would handle;
(b) which employees are eligible to use the DyADS processes and under what circumstances (for example, certain types of
non-union employees may only be allowed to utilize certain DyADS processes with union notification or approval);
*379 (c) what approaches for various conflicts will be available in the new system;
(d) how DyADS program options could be initiated;
(e) who will administer or monitor how the new system is working in specific conflicts; and
(f) the joint selection or appointment of key DyADS program personnel.
The participants in a systems design negotiation may address these issues in a variety of ways, but they may be guided by the
following steps frequently employed in other types of complex multi-party disputes:
(a) acquire and exchange information about the relevant conflicts, obtaining assistance (e.g., legal, consulting, technical) as
necessary;
(b) identify relevant issues and interests and search for areas of mutual gain for the participants;
(c) develop acceptable options;
(d) develop and review recommendations;
(e) finalize agreements;
(f) implement new conflict management approaches; and
(g) monitor and evaluate on a periodic basis, through an agreed-upon procedure.
D. Training
Provide support training for key personnel exploring or implementing a DyADS project.
1. Overview
Working through the FMCS Institute and together with strategic partners (such as The Ombudsman Association, FMCS
academic partners, and private providers), FMCS and its partners will provide support for DyADS programs around the
country by supporting training programs designed to equip key personnel. The target audiences and content of the training
programs should cover a broad range of topics addressing the variety of issues that arise depending on each program’s stage
of development. One category of programs should focus on training labor and management on concepts and skills supporting
the creation of a DyADS program. Another should focus on skills and methods for successful implementation or
modification.
*380 Training delivery systems should range from a classroom with participants from around the country to a one-on-one
mentoring session in a given workplace. They should be committed to sharing information and knowledge with academic
partners and private dispute system design consultants as well as with labor and management.
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E. Technical Support
Provide technical support for implementation of a DyADS project.
1. Overview
Both FMCS and private dispute system design consultants have expertise and resources that could assist in the
implementation of a local DyADS. FMCS,67 private sector dispute design consultants, and academic partners can cooperate
to develop and apply techniques and technologies, such as case management or data collecting software programs, that could
support a DyADS program.
F. Evaluate
Evaluate the effectiveness of systems created by DyADS.
1. Overview
DyADS programs should be evaluated to determine if they are accomplishing their goals. Qualitative measures (such as
surveys regarding workplace morale and satisfaction with DyADS processes) and quantitative measures (such as number of
EEO complaints filed and number of days absent) must be developed and applied to confirm the results of the DyADS efforts
around the country. This data is especially critical for enabling DyADS to have an adaptive characteristic so the program can
evolve. Periodic evaluation data should provide a basis for reflective modifications. The commitment to evaluation is also
critical to identifying the variations in individual DyADS programs that contributed to successes or challenges. While
DyADS recognizes that each workplace is unique and thus each DyADS will be a unique journey, trends and patterns will
probably emerge from a commitment to evaluate each program and analyze the composite results.
*381 There are significant advantages to evaluating a DyADS using an entity outside the affected workplace. An internal
evaluation is suspect because the evaluation methodology or interpretation could be directed to accomplish a desired result.
Internal evaluators are more easily perceived as having an agenda to produce results that are either artificially complementary
or critical. External evaluators are usually perceived as being freer from incentives to direct the results. External evaluators
also may be able to contribute expertise about how to best evaluate a DyADS program.
The best sources for external evaluation of DyADS programs are private sector dispute system design consultants and
academic institutions. FMCS68 could support the evaluation of DyADS by developing evaluative tools and methodologies
and sharing those resources with academic partners and private sector dispute systems design consultants.
X. Conclusion
This article articulates a vision for how an innovative and comprehensive approach to dispute systems design in the organized
workplace can be encouraged and developed. The potential for such a project has support in the literature, from accomplished
dispute systems design practitioners, and among labor and management professionals.
As each workplace is unique, so will be each DyADS experience in that workplace. As a first step towards implementing
DyADS, FMCS is seeking to pilot DyADS in a number of diverse workplaces. Because of the lack of experience with having
labor and management jointly develop complex adaptive conflict management systems, such pilot projects in a real-world
setting are important to understanding the complexities, problems, and possibilities that these programs will encounter. The
pilot experiences will be evaluated with an eye toward refining the DyADS program. After a period of piloting and refining
the DyADS experience, FMCS will determine whether and how *382 to expand its availability to customers. Most
importantly, the principles and approaches articulated for DyADS as discussed in this article should have broad application
for conflict resolution professionals who work with a variety of organizations.
Footnotes
d1
Peter Robinson is Acting Director of the Straus Institute for Dispute Resolution at Pepperdine University School of Law and
Associate Professor of Law. He served as the Straus Institute’s Project Director for the DyADS project. He holds a B.A. from
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University of California, San Diego (1977) and a J.D. from Hastings College of Law (1980). He would like to express his
appreciation for the capable research assistance provided by Avnita Lakhani, a LL.M. candidate at the Straus Institute at
Pepperdine University School of Law.
dd1 Arthur Pearlstein is General Counsel and a Commissioner of Mediation at the Federal Mediation and Conciliation Service
(“FMCS”) in Washington, DC. He served as Project Manager at FMCS for the DyADS project. He holds a B.A. from Haverford
College (1978), a J.D. from Harvard Law School (1981) and a Masters in Dispute Resolution from the Straus Institute for Dispute
Resolution at Pepperdine University School of Law (2001). The author wishes to thank his colleagues at FMCS for their
considerable support and, in particular, former FMCS Director Richard Barnes for the initial project funding and Director Peter
Hurtgen for his insight and support in making DyADS a high priority.
ddd Bernard Mayer is a partner at CDR Associates in Boulder, Colorado. He served on the panel of national experts on dispute system
design that worked on the DyADS project. He holds a B.A. from Oberlin College (1968), an M.S.W. from Columbia University
1
(1970), and a Ph.D. from the University of Denver, Graduate School of Social Work (1987). The authors collectively wish to
thank their colleagues Wendell Jones, David Lipsky, J. Randolph Lowry, Denise Madigan, John McCrory, Carl Slaikeu, Lamont
Stallworth, Arup Varma, and Charles Wiggins for their enormous contributions to the development of the DyADS project.
1
The Federal Mediation and Conciliation Service, created in 1947, is an independent agency of the U.S. government whose
mission is to preserve and promote labor-management peace and cooperation. Headquartered in Washington, DC with more than
seventy field offices, the agency provides mediation and conflict resolution services. FMCS is the largest direct employer of
mediators in the U.S. See http://cedire.org (last visited Feb. 21, 2005).www.fmcs.gov (last visited Nov. 3, 2004).
2
The “clients” of this federal agency are both the labor union and management components of organizations in the public and
private sector. Such organizations include private industrial and service corporations, health care providers, and government
agencies.
3
The Straus Institute is located in Malibu, California. Founded in 1986, the Institute offers LL.M., Masters, and certificate courses
of study in dispute resolution as well as specialized training for professionals.
4
A play on the word dyad, meaning a pair (such as labor and management) acting together as a unit.
5
Richard Chaykowski et al., Facilitating Conflict Resolution In Union-Management Relationship: A Guide For Neutrals 6-7
(2004).
6
Id.
7
Id.
8
Id.
9
Ann C. Hodges, Mediation and the Transformation of American Labor Unions, 69 Mo. L. Rev. 365, 367 (2004) (citing William
B. Gould IV, Agenda For Reform: The Future Of Employment Relationships And The Law 55-56 (1993)); James J. Brudney,
Reflections on Group Action and the Law of the Workplace, 74 Tex. L. Rev. 1563, 1571-72 (1996) (documenting the shift in
Congress’s regulatory focus from collective action to individual rights).
10
These types of claims often involve federal antidiscrimination laws such as the Equal Pay Act, 29 U.S.C. § 206 (2000); Title VII
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of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e (2000); Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634
(2000); Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (Supp. 2001); and the 1991 Civil Rights Act, Pub L. No.
102-166, 105 Stat. 1074 (codified in scattered Sections of 2 U.S.C., 16 U.S.C., 29 U.S.C., and 42 U.S.C.). Claims are also filed
under federal laws that accord individual rights to employees including the Occupational Safety and Health Act (OSHA), 29
U.S.C. §§ 651-678 (Supp. 2001); the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461 (2000)
(enacted 1974); the Employee Polygraph Protection Act (EPPA), 29 U.S.C. §§ 2001-2009 (2000); the Worker Adjustment and
Retraining Notification Act (WARN), 29 U.S.C. §§ 2101-2109 (2000), the Family and Medical Leave Act (FMLA), 29 U.S.C. §§
2601-2654 (Supp. 2001); and the Health Insurance Portability and Accountability Act (HIPAA), Pub. L. No. 104-191, 110 Stat.
1936 (codified as amended in scattered Sections of 18 U.S.C., 26 U.S.C., 29 U.S.C., and 42 U.S.C.). Common law claims that
afford individual rights to employees include causes of action for wrongful discharge, breach of implied contracts, and breach of
the implied covenant of good faith and fair dealing in addition to defamation, intentional infliction of emotional distress, invasion
of privacy and tortious interference with contract. See also Hodges, supra note 9, at 368-369 (discussing the increased move
toward individual rights-based laws that coincide with the decline of unions and arguing that because of the extensive
proliferation of common law claims, employers are looking to alternative dispute resolution (“ADR”) approaches).
11
See Hodges, supra note 9, passim (emphasizing the increasing importance of individual rights procedures for the workplace). The
literature catalogues some of the “rights-based” mechanisms for resolving disputes (i.e., through adjudication by court or
administrative agency). The distinction in the literature is that “rights-based” mechanisms decide who is right by competitive
determination of who will prevail, while “interest-based” mechanisms focus on reconciliation of interests through collaborative
exploration of mutually beneficial solutions. Hodges, supra note 9, at 405. See also William L. Ury et al., Designing an Effective
Dispute Resolution System, 4 Negot. J. 413, 415 (1988) (citing William L. Ury et al., Getting Disputes Resolved (1988)
(discussing the importance of focusing on interests in resolving disputes through mediation and negotiation)); Hodges, supra, note
9, at 387-404 (discussing the merits of using mediation for resolving noncontractual disputes in unionized settings).
12
William L. Ury et al., Getting Disputes Resolved 33-37, 64 (1988) (explaining that a systems approach requires going beyond
new procedures to equipping individuals with all they need to effectively utilize such procedures).
13
The Society of Professionals in Dispute Resolution (SPIDR), Designing an Integrated Conflict Management System 8 (2003)
[hereinafter SPIDR] (outlining the seven key guidelines of an ‘integrated conflict management system’ within an organization).
14
Id.
15
See Karl Slaikeu & Ralph Hasson, Controlling the Costs of Conflict 64-74 (1998) (describing how three major corporations Haliburton, Shell, and General Electric - have developed and implemented conflict resolution systems). Karl Slaikeu, who
participated in the FMCS dispute systems design study group, has been a pioneer in systems design for major corporations.
16
See generally David Lipsky et al., Emerging Systems for Managing Workplace Conflict (2003). Professor Lipsky, former Dean of
the Cornell School of Industrial and Labor Relations and current head of its Institute on Conflict Resolution, also participated in
the FMCS dispute systems design study group. Lipsky and his colleagues have done the most far-reaching study to date on the
adoption of dispute systems in the workplace. Their book contains numerous examples of dispute systems adopted by large
corporations, mostly in the non-organized sector. Id.
17
There are, of course, a whole range of disputes that fall within the collective bargaining agreement. These disputes are typically
handled in negotiated grievance procedures and tend to rely on arbitration-like processes, or on mediation to resolve disputes. The
FMCS initiative on dispute systems is not intended to modify the way that collective bargaining disputes are handled.
18
An “organized” setting is one in which the employees within the organization are part of a union, or “unionized.” A
“non-organized” setting is one in which employees within the organization are not part of a union, or “non-unionized.” An
organization can be composed of unionized and non-unionized employees. See also Hodges, supra note 9, at 372 (discussing the
nature of dispute resolution in a unionized setting, where the union will generally provide for representation in legal and
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contractual disputes; and contrasting that with non-unionized settings, where the employee must find representation or
self-represent as a pro se litigant).
19
SPIDR, supra note 13, at 7, 10-11 (stating that rights-based processes, such as grievance procedures, arbitration, adjudication, and
appellate processes, determine whether a legal or contractual right has been violated). The result in a rights-based procedure is a
decision “concerning claims over rights arising from policies, individual or collective agreements, and statutes.” Id. In contrast,
interest-based processes, such as direct negotiation, facilitation, and mediation, allow parties to engage in problem-solving
techniques to address the perceived needs and interests of the parties in an environment where parties retain more control over the
outcome of their conflict. Id.
20
See, e.g., Murray Gell-Mann, The Quark and The Jaguar: Adventures in the Simple and Complex (1994) (examining complex
adaptive systems such as bacteria developing resistance to antibiotics, mobile robots, and people interacting with and learning
from their environment); M. Mitchell Waldrop, Complexity: The Emerging Science at the Edge of Order and Chaos (1992)
(explaining complexity as the science of understanding how independent agents interact with each other to influence each other
and the whole); Wendell Jones & Scott H. Hughes, Complexity, Conflict Resolution, and How the Mind Works, 20 Conflict
Resol. Q. 485 (2003) (exploring the implications of complex adaptive system studies to the field of alternative dispute resolution).
21
See, e.g., The Biology of Business: Decoding the Natural Laws of Enterprise (John H Clippinger III ed., 1999) (suggesting how
various principles of complex adaptive systems can be applied as tools in improving organizational performance); Ralph D.
Stacey, Complexity and Creativity in Organizations (1996) (demonstrating that complexity studies provide more useful
frameworks for understanding how human organizations work than the older mechanical model of the organization); Philip J.
Streatfield, The Paradox of Control in Organizations (2001) (focusing on the tension between spontaneously forming patterns and
intentional actions, arguing that the order of organizations emerges through a combination of collective interaction and individual
intentions); Roger Lewin & Birute Regine, The Soul at Work: Listen, Respond, Let Go: Embracing Complexity Science for
Business Success (2000) (emphasizing the importance of individual relationships in the workplace from a perspective of
complexity studies).
22
Lewin & Regine, supra note 21, at 73-250. The authors studied a variety of organizations, from a small, family-owned chain of
paint stores to the Monsanto Company, an organization with more than 20,000 employees. Id. at 169-186, 208-25.
23
Lewin & Regine, supra note 21, at 56-57.
24
Id. at 152-68.
25
See Andy Clark, Leadership and Influence: The Manager as Coach, Nanny, and Artificial DNA, in The Biology of Business:
Decoding the Natural Laws of Enterprise, supra note 21, at 47-48 (pointing out how economic and informational pressures are
tending to select for organizational forms that are less top-down and hierarchical and more flexible and self-organizing).
26
See Federal Mediation & Conciliation Service, A Timeline of Events in Modern American Labor Relations, available at http://
www.fmcs.gov/internet/itemDetail.asp?categoryID=21&itemID=15810 (last visited Nov. 3, 2004) (citing the historical timeline
that led to the establishment of FMCS and its subsequent involvement in mediation and conflict resolution).
27
See “Nonlinear Dynamics,” The Columbia Encyclopedia 2029 (6th ed. 2000) (“study of systems governed by equations in which
a small change in one variable can induce a large systematic change ... Unlike a linear system, in which a small change in one
variable produces a small and easily quantifiable systematic change, a nonlinear system exhibits a sensitive dependence on initial
conditions: small or virtually immeasurable differences in initial conditions can lead to wildly differing outcomes.”). See
generally Stephen J. Guastello, Chaos, Catastrophe, and Human Affairs: Applications of Nonlinear Dynamics to Work,
Organizations, and Social Evolution (1995); Ali H. Nayfeh & Balakumar Balachandran, Applied Nonlinear Dynamics:
Analytical, Computational, and Experimental Methods (1995).
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28
See generally Joop Swieringa & Andre Wierdsma, Becoming a Learning Organization: Beyond the Learning Curve (1992)
(contrasting the “tourist model of change,” whereby one uses brochures, guidebooks, and careful planning to determine exactly
the specific route to be taken, with the “trekker model,” whereby one chooses a direction without precisely knowing the route ex
ante, and then flexibly adapting as one progresses). Under the “trekker model,” organizational learning is not a formal process of
recording and controlling, but is an informal process of exploration and feedback.
29
FMCS requested its General Counsel, Arthur Pearlstein, to spearhead the project for the Agency. FMCS then entered into a
cooperative agreement with the Straus Institute for Dispute Resolution at Pepperdine University School of Law to assist in
surveying the best practices in dispute systems design and in formulating a proposed course of action for FMCS.
30
The literature identifies a variety of factors contributing to laudatory programs. The relevant literature reviewed included articles
on dispute systems design. See generally Corinne Bendersky, Culture: The Missing Link in Dispute Systems Design, 14 Negot. J.
307 (1998); Lisa B. Bingham et al., Mediating Employment Disputes at the United States Postal Service: A Comparison on
In-House and Outside Neutral Mediation Models, 20 Rev. of Pub. Personnel Admin. 5 (2000); Donna Blancero & Lee Dyer, Due
Process for Non-Union Employees: The Influence of System Characteristics on Fairness Perception, 35 Hum. Resource Mgmt.
343 (1996); The Commission on the Future of Worker-Management Relations, The Dunlop Commission On the Future of
Worker-Management
Relations:
Final
Report
(1994),
at
http://
www.ilr.cornell.edu/library/keyWorkplaceDocuments/government/federal/futuremang.html (last modified Feb. 13, 2004); Lauren
B. Edelman et al., Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace, 27 Law & Soc’y Rev. 497
(1993); Alfred G. Feliu, Legal Consequences of Nonunion Dispute-Resolution Systems, 13 Employee Rel. L. J. 83 (1987); Aimee
Gourlay & Jenelle Soderquist, Mediation in Employment Cases is Too Little Too Late: An Organizational Conflict Management
Perspective on Resolving Disputes, 21 Hamline L. Rev. 261 (1998); David B. Lipsky & Ronald L. Seeber, In Search of Control:
The Corporate Embrace of ADR, 1 U. Pa. J. Lab. & Emp. L. 133 (1998); Mary Rowe & Corinne Bendersky, Workplace Justice,
Zero Tolerance, and Zero Barriers: New Goals and Strategies for Conflict Management, in Negotiations and Change: From the
Workplace to Society 117 (Thomas A. Kochan et al. eds., 2003); Mary P. Rowe, Options and Choice for Conflict Resolution in
the Workplace, in Negotiation: Strategies for Mutual Gain 105 (Lavinia Hall ed., 1993); Margaret L. Shaw, Designing and
Implementing In-House Dispute Resolution Programs, in American Law Institute-American Bar Association Continuing Legal
Education Course of Study: Alternate Dispute Resolution (ADR): How to Use It to Your Advantage! 449 (1999), available at WL
SD70 ALI-ABA 447. The relevant literature reviewed also included books chronicling successful workplace dispute systems
design. See generally Ury et al., supra note 11; Bernard S. Mayer, The Dynamics of Conflict Resolution: A Practitioner’s Guide
(2000); SPIDR, supra note 13; Cathy A. Costantino & Christina S. Merchant, Designing Conflict Management Systems (1996);
Slaikeu & Hasson, supra note 15.
31
See infra Part VIII.
32
The roundtable think-group of nationally prominent experts met to discuss “Dispute Systems Design in the Organized
Workplace” in Woodstock, Vermont in July 2002 and in Boulder, Colorado in February 2003, and included the following
individuals, in alphabetical order: 1) Wendell Jones (Ombudsman and member of Advanced Concepts Group at Sandia National
Laboratory at Albuquerque, New Mexico); 2) David Lipsky (Professor and Director of the Institute on Conflict Resolution at the
School of Industrial and Labor Relations at Cornell University); 3) L. Randolph Lowry (Director and Professor at the Straus
Institute at Pepperdine University School of Law); 4) Denise Madigan (Senior Fellow at the Straus Institute at Pepperdine
University School of Law and independent mediator in Los Angeles, California); 5) Bernard Mayer (Partner at CDR Associates in
Boulder, Colorado); 6) John McCrory (Professor Emeritus at the Straus Institute at Pepperdine University School of Law); 7) Karl
Slaikeu (CEO and Chairman of the Board at Chorda Conflict Management in Austin, Texas); 8) Lamont Stallworth (Director of
the Center for Employment Dispute Resolution and Professor at the Institute of Human Resources and Industrial Relations at
Loyola University, Chicago); 9) Arup Varma (Associate Professor at the Institute of Human Resources and Industrial Relations at
Loyola University, Chicago); and 10) Charles Wiggins (Professor at the University of San Diego School of Law). All of these
experts are nationally renowned for their expertise in alternative dispute resolution, employment dispute resolution, and dispute
resolution systems design.
33
Shaw, supra note 30, at 458 (providing benchmarking data for these companies).
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34
David B. Lipsky & Ronald L. Seeber, The Appropriate Resolution of Corporate Disputes: A Report on the Growing Use of ADR
by U.S. Corporations 22 (1998).
35
See SPIDR, supra note 13, at 9-10. See also Shaw, supra note 30, at 456 (discussing the elements of designing successful in-house
ADR programs, including tailor-made systems, commitment for the program from top management, consulting employees during
the program design, and obtaining employee buy-in, ensuring protection against self-reprisal, and monitoring and evaluating the
program on an ongoing basis).
36
For information on the nature and importance of an external consultant, see Costantino & Merchant, supra note 30, at 74-75. In
the case of implementing a DyADS, FMCS can provide a consultant from its ranks or assist the parties in identifying a private
provider.
37
This example represents an amalgam of several real-life situations in private and public sector corporations.
38
See Chaykowski et al., supra note 5, at 14. See also SPIDR, supra note 13, at 7-9 (discussing the four phases of evolution within
an organization when addressing conflict). The four phases are on a continuum from the absence of a dispute resolution process
(Phase 1) to having an integrated conflict management system (Phase 4).
39
There are exceptions to this: a major overhaul may be appropriate when an organization is going through massive changes
requiring a whole new system; when major disruptions have occurred that have made an existing system unworkable; or when the
major partners in an organization have otherwise indicated a desire and commitment to going through a large-scale change
process. But the challenge of instituting whole new systems ought not to be underestimated, even when the design process has
been very thoughtful. Often the effort required to change is far greater than people anticipate, and this can create significant
resistance even when all parties say they want a new approach.
40
A shop steward is a union member elected or appointed to serve as the representative of the union in a plant, department, or
“shop.” The steward typically negotiates the settlement of grievances of employees with employers, monitors compliance with the
collective bargaining agreement, recruits new union members, and collects union dues. A steward system, therefore, is one in
which a shop steward represents the union workers, and the human resource department of the organization represents
management.
41
See Ury et al., supra note 12, at 21-22.
42
See Chaykowski et al., supra note 5, at 18-19.
43
Mayer, supra note 30, at 16-17. The literature on conflict often distinguishes between interests and needs, defining interests as
transitory and superficial while defining needs as more basic and enduring (e.g., food, shelter, health, and security). Id. Mayer
treats interests as a part of a continuum of human needs, with a basic need for survival on one end and striving for identity at the
other. Id. Mayer says the literature views interests and needs as opposite polls, but he thinks this is a mistake and prefers to see
them as a part of a continuum of need. Id.
44
Id at. 18-19 (citing C.W. Moore, The Mediation Process: Practical Strategies for Resolving Conflict (1986)); see also C.W.
Moore, Practical Strategies for Resolving Conflict (2d ed. 1996) (explaining that substantive interests include concerns about
tangible benefits; procedural interests are those associated with interacting, communicating, or decision-making; and
psychological interests involve how one is treated, respected, or acknowledged).
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45
For instance, substantive needs can best be addressed with a clear focus on the concerns and interests of all the parties to the
dispute. Procedural interests can best be met by encouraging direct participation of all parties and by giving them each the
opportunity to play a direct role in the decisions that are made about how to resolve the dispute. Psychological interests are best
addressed by encouraging an atmosphere in which people: 1) can listen to each other, 2) can communicate their concerns and
feelings clearly and respectfully in an environment where they feel heard, and can participate in a decision-making process in
which their sense of personal integrity and safety is never put at risk.
46
This example is drawn from an actual situation involving a large automotive repair facility.
47
Costantino & Merchant, supra note 30, at 52-54 (describing an interest-based framework as one in which the stakeholders of an
organization have an active and integral role in shaping the system they use). The interest-based model acknowledges the
inevitability of conflict and provides a broader and more focused approach to managing the conflicts. Id. See also SPIDR, supra
note 13, at 7-8 (discussing the difference between rights-based processes, where the focus is determining whether a legal or
contractual right has been violated, and interest-based processes, where the focus is on problem-solving based on perceived needs
or interests of the disputants).
48
There are many specific mechanisms that can encourage direct involvement in decision-making, such as mediation,
pre-negotiation coaching, facilitated discussions, training in interest-based bargaining, or peer support mechanisms. The specific
needs and strengths of the organization determine how these mechanisms may be implemented in a given workplace.
49
See SPIDR, supra note 13, at 9, 11. See also Shaw, supra note 30, at 456 (discussing the elements of designing successful
in-house ADR programs, including assurances that employees have the information and resources they need in a variety of ways,
such as written materials and interactive programs and stating that employees should also be made aware of ways to access the
in-house ADR program and procedures, including the use of an internal coach or facilitator).
50
Dean G. Pruitt & Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement 6 (2004). The literature explains that
doing nothing, or inaction, is when one party remains inactive, sometimes waiting for the other side to react. Id. Inaction still
recognizes that a conflict exists, but one party waits for the other party to act first. In contrast, avoiding conflict and withdrawal
involve abandoning the conflict and walking away. Id.
51
See SPIDR, supra note 13, at 17. See also Shaw, supra note 30, at 456 (discussing the importance of an anti-reprisal protection for
those who use an in-house dispute resolution system, arguing that protection from reprisal should be both a promise and a reality,
where management ensures that retaliation of any kind will result in strong discipline and also publicizes enforcement of
anti-retaliation measures).
52
The reality in many organizations is that people take a considerable risk by filing a grievance or an EEO complaint, even if they
win. There are risks of direct retaliation, of being labeled as a troublemaker or malcontent, and of indirect retaliation through
snubs, ostracism, or other more subtle consequences.
53
This example is taken from a real-life situation at a major airport facility.
54
See SPIDR, supra note 13, at 15. See also Mary P. Rowe, Dispute Resolution in the Non-Union Environment: An Evolution
Toward Integrated Systems for Conflict Management?, in Workplace Dispute Resolution: Directions for the 21st Century 79, 88
(Sandra Gleason ed., 1997) (discussing specifications for an effective integrated conflict management system, including an
organizational ombudsperson who serves as a neutral and “is available to help informally with any workplace concern, and to
provide formal mediation as appropriate”).
55
See Bingham et al., supra note 30, at 4 (discussing the role of an ombudsman as opposed to the role of the traditional inside
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mediator). An ombudsman’s role is broader and encompasses an administrative function as part of the organization’s larger
conflict management system. Id. An ombudsman may mediate certain disputes, but may also provide referrals to outside neutrals.
Id. In addition, an ombudsman reports directly to upper management and functions as an inside neutral. Id.
56
For example, the role could include the provision of coaching, advice, information, or case evaluation, or the role could be the
primary point of contact for people wanting to use a DyADS. People working within the role may be asked to provide advice on
overall organizational issues or disputes on a regular basis, or they may be insulated from this expectation. Moreover, the role
could be labeled in many ways, such as an Ombudsman, a coordinator, a DyADS manager, or a DyADS overseer.
57
This example is based on an ombuds program at an actual, international standard-setting and policy organization.
58
See SPIDR, supra note 13, at 15. See also Shaw, supra note 30, at 456 (discussing specific elements of a successful in-house ADR
program, including monitoring and evaluating the program on an on-going basis). A successful ADR program is reviewed against
intended goals and modified accordingly. In addition, publicizing the program’s results will enhance integrity and credibility of
the program, thus encouraging its use over time.
59
See Lewin & Regine, supra note 21, at 287-88.
60
This example is based on experience with a large federal agency in the U.S.
61
See SPIDR, supra note 13 (emphasizing the importance of preventing a dispute system from undermining collective bargaining or
other legal rights).
62
Once again there are both conceptual and practical reasons for making absolutely sure that nothing about DyADS undermines
negotiated or legislated workplace rights. Conceptually, DyADS is intended to be consistent with the commitment of FMCS to
enhancing, supporting, and protecting collective bargaining and related workplace relations. From a practical point of view, no
DyADS will ever be acceptable to all the parties whose support is needed if it is viewed as an end run around established labor
relations agreements or mechanisms, nor should it be.
63
These activities were originally proposed as steps that FMCS could take. Indeed, FMCS is currently piloting design efforts that
follow the recommended protocol. It is important to understand, however, that such approaches could have broad applicability in
the field and could be utilized by other neutral entities or private providers.
64
FMCS is uniquely positioned to promote the use of DyADS to labor and management. FMCS has a long history of good relations
with both labor and management and is intimately associated with the collective bargaining process and could help explore how
conflict management systems would relate to or interface with a collective bargaining agreement.
65
FMCS is well positioned to offer convening services to parties contemplating a DyADS initiative. As a long-time neutral in the
organized workplace, it can be trusted not to advocate an agenda biased towards any specific stakeholder. Further, as an
organization with substantial experience in labor-management issues and in conflict management and resolution, it can be trusted
to identify the issues that should be addressed to ensure the most productive DyADS negotiations possible.
66
A logical extension of FMCS’s traditional service of mediating collective bargaining agreements is to facilitate the initial DyADS
design dialogue. FMCS is uniquely qualified to facilitate the DyADS design negotiations because of their integral roles in both
the collective bargaining process and DyADS.
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67
FMCS should be committed to sharing existing expertise and developing additional resources that will support local DyADS
programs.
68
Over time, FMCS would certainly be in a position to lend expertise about the best methods for DyADS evaluation. In addition,
FMCS’s credibility with both labor and management would enable both sides to more freely and confidentially express their
sources of satisfaction and dissatisfaction with the DyADS experience. These advantages of having FMCS evaluate DyADS
programs are balanced by a disadvantage; as the promoter and facilitator of the DyADS experience, FMCS may be perceived as
having an interest in an artificially complementary evaluation. FMCS may be perceived as more removed than the DyADS staff
person in a local workplace, but FMCS still has a vested interest in DyADS being declared a success.
End of Document
© 2011 Thomson Reuters. No claim to original U.S. Government Works.
© 2011 Thomson Reuters. No claim to original U.S. Government Works.
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