20 August 2009

Mediation: does it work?

Article by Dr Rory Ridley-Duff in response to Bob Cannell's article on mediation. Does it really work?

This short article examines research findings from the US Postal Service where there is widespread use of mediation. Given the process of mediation is suited to the authority structures of co-operatives, these findings are of particular interest to co-operative and employee-owned enterprises.

In attempting to define mediation, it is useful to define what it is not. Importantly, mediation is not arbitration, which Liebmann (2000:11) defines as, ‘a process in which an impartial third party (after hearing from both sides) makes a final, usually binding, agreement.

In contrast, mediation is defined as:

‘A process by which an impartial third party helps two (or more) disputants work out how to resolve a conflict. The disputants, not the mediators, decide the terms of any agreement reached. Mediation focuses on future rather than past behaviour.’

In mediation theory, there is a focus on developing the conflict resolution skills of the parties involved, not simply solving the immediate dispute (Bush and Folger, 2004). The USPS REDRESS programme is the only large scale opportunity that has afforded researchers a chance to review thousands of cases and outcomes (Bingham and Pitts, 2002).

This programme has several features that may, or may not, be adopted in any UK programme. Firstly, disputants on either side can bring any representative they wish to mediation meetings (including no representation at all). Secondly, mediation is compulsory for the employer, but optional for the employee: if an employee raises a grievance, the employer must mediate; the reverse is not the case.

Outcomes and satisfaction levels were studied. In nearly all cases, the best outcomes and highest satisfaction levels were achieved when trade unions represented the complainant (the person expressing a grievance) and lawyers represented the respondent (the person defending themselves against an accusation). This is in stark contrast to the UK model where third party representation is seen as inappropriate towards reaching a successful outcome (ACAS: 2007).

Interestingly, parties representing themselves also expressed high levels of satisfaction. Bingham and Pitt (2002:142) concluded on the basis of studying 7,989 complainant surveys and 6,794 respondent surveys that “allowing participants to bring whatever representative they prefer will have no adverse impact on an employment dispute resolution programme”.

After a pilot programme using ‘in-house neutrals’ an external mediator programme was implemented. Satisfaction levels on procedure were high in both cases (91% with internal mediator, 96% with external mediator), while satisfaction with outcomes was achieved in most cases (74% with internal mediators, 80% with external mediators). These high satisfaction levels indicate that internal mediation can still be effective in many cases and may be particularly cost effective.

One weakness of the REDRESS studies is that satisfaction with court proceedings are not compared to those undergoing mediation. One area where this question has been considered is mediation in a family context (see Kelly, 2004). In this case, outcome and satisfaction levels of those who chose mediation and court routes were compared. Moreover, follow-up studies (after 18 months and 24 months) were undertaken to compare satisfaction levels later on.

Similarly high levels of satisfaction were reported (86% said they would recommend mediation to others). These satisfaction levels, however, dropped substantially in follow up studies (between 20 to 30 percentage points, depending on the question). Nevertheless, satisfaction levels remained substantially higher than those who went through court proceedings. For example, 55% managed to maintain workable relationships two years after mediation, compared with on 34% who used legal processes.

If mediation does produce more desirable, if not uniform, outcomes, how is this achieved? An argument made in traditional disciplinary and grievance proceedings is that if a person is disciplined immediately and consistently when they transgress codes of conduct, they would not have engaged in the 'inappropriate' behaviour of which they later stand accused (Gennard and Judge, 2002). This assumption is only valid within a framework that uncritically accepts the moral and legal right of social elites to decide which behaviour is 'appropriate'. Mediation, on the other hand, does not accept this in an uncritical way.

Viewed from a Chinese perspective, Huang (2006: 307) comments:

With [Western] insistence on beginning with abstract premises about rights, and of subsuming all legal decisions by deductive logic under such principles, formalist legal system can drive almost all disputes into an adversarial framework of rights violations and of fault, even when neither party is at fault or when both parties would prefer a compromise resolution.

Huang outlines how justice in cultures based on Confucian and Maoist philosophy is based on an investigation of social "facts" before any decision is taken about how to resolve a dispute. Where an investigation determines there is no blame, joint blame, or joint rights and obligations in law, Chinese courts opt for mediation as the dispute resolution process.

Where there are clear cases of legal right and wrong, an adjudicative (evaluative) approach is adopted to determine punishment. Chinese law permits legal practitioners to switch between adjudicative and mediatory justice in light of findings that emerge during investigation. As a result, many cases are resolved without attempts to determine right and wrong, or apportion blame, by focussing on rebuilding relationships rather than determining punishment.

The argument for mediation, therefore, can be made on either financial or moral grounds. Firstly, there is a reasonable expectation that fewer disputes will be escalate to court proceedings. Secondly, there is a compelling ethical argument: mediation, to date, has produced outcomes with higher levels of satisfaction for both disputing parties with a higher percentage of working relationships remaining intact in the aftermath of conflict.

ACAS (2007) Mediation Explained (London: ACAS Publications).
Bingham, L. and Pitts, D. (2002) "Highlight of Mediation at Work: Studies of the National REDRESS Evaluation Project", Negotiation Journal, April 2002, pp. 135-146.
Bush. R and Folger, J. (1994) The Promise of Mediation: Responding to Conflict through Empowerment and Recognition (San Francisco: Jossey-Bass).
Gennard J. and Judge, J. (2002) Employee Relations (London: CIPD).
Huang, P. C. (2006) "Court Mediation in China, Past and Present", Modern China, 32, 3, 275 314.
Kelly, J. (2004), "Family Mediation Research: Is There Empirical Support for the Field?", Conflict Resolution Quarterly, 22, 1-2, 3-35.
Liebmann, L. (2000) “History and Overview of Mediation in the UK”, in Mediation in Context, (London: Jessica Kingsley Publishers).
Ridley-Duff, R. J. (2007) Emotion, Seduction and Intimacy: Alternative Perspectives on Organisation Behaviour (Bracknell, Men's Hour Books), downloaded from http://www.scribd.com/doc/4912718

1 comment:

Scumboni said...

pos as being about 'meditation', which I strongly believe would be of use to any worker co-operator.