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.

References
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

Mediation in worker co-operatives

Bob Cannell has kindly provided a summary of the 37 page ACAS guide to mediation. A topic of interest to worker co-operative and other equal status organisations where management authority is is not available to "sort out" arguments between peers.

Mediation
Mediation is increasingly recommended (ACAS, CIPD) as a method to resolve conflicts and disagreements between people at work. Unresolved disagreements and blocked communication can cause serious long term damage to cooperative team working and business performance.

Mediation is a method by which people can take responsibility for resolving their own disagreements with the help of a facilitator, the mediator. There is little paperwork because the process relies mostly on verbal communication.

What is Mediation?
Mediation is where a mediator helps two or more people to reach an agreement to change behaviour. Any agreement comes from those in dispute, not from the mediator. The mediator does not judge or tell them what to do (beyond making suggestions). The mediator is in charge of the process of seeking to resolve the problem but is not responsible for the outcome.

The stages of mediation

Start

1. A complaint is received by Personnel
2. Personnel ask the parties to accept mediation to resolve the issue. (if they refuse, it might become a formal grievance or disciplinary)
3. Personnel agree a mediator (themselves, other member(s) or an external mediator.)

The process

First contact with the parties
The mediator meets the parties separately. To set the guidelines for the mediation process. To allow them to tell their story and find out what they want out of the process.

Joint meeting
Hearing the issues

• The mediator brings the participants together and invites them each to put their side of the story during a period of uninterrupted time.
• The mediator begins to summarise areas of agreement and disagreement and draw up an agenda with the parties for the rest of the mediation.

Exploring the issues
The mediation is now about encouraging communication between the parties, promoting understanding and empathy and changing perceptions. To begin to shift the focus from the past to the future and begin to look for constructive solutions.

Building and writing an agreement
The mediator encourages and supports joint problem-solving by the parties, ensures any solution and agreements are workable, and records agreements and respectful ‘agreements to disagree’.

Closing the mediation

• Once agreement has been reached, the mediator will bring the meeting(s) to a close, provide a copy of the agreed statement to those involved and explain their responsibilities for its implementation.
• If agreement cannot be reached, other formal procedures may later have to be used to resolve the conflict.
• Nothing that has been said during the mediation can be used in any future proceedings.

Conditions for Successful Mediation

Not a First Resort
People should first try to resolve disagreements by themselves and managers/co-ordinators should not use mediation to avoid their responsibilities for people and team leadership.

Trained Mediator

• If possible, Mediation training ACAS or CEDR should be done in advance of it being needed.
• With goodwill from the parties in dispute, lack of training need not be a reason to delay.
• Starting meaningful communication between the people is more important.

Time and Place

• Mediation works best if started promptly.
• The first stages must not be rushed by time pressures.
• Length of meetings depends on the people involved.
• Many mediation processes take one day or less to complete
• The place must be private with a private room to break out into if a calming down period is needed.
  

Voluntary and Co-operative
Both (all) parties must agree

• to use mediation.
• to want to achieve a cooperative resolution.
• to be prepared to ‘give and take’.

Mediation does not work if one ‘side’ is seeking revenge or is determined to win at the cost of the other or does not intend to be open and honest.

Informal and Flexible
Both parties must be prepared to be flexible and allow the mediator to facilitate the process.

Personal and Unrepresented
People only use representatives or ‘go betweens’ in mediation where they cannot be in the same room together. email, video links, telephone can be used if necessary.

Non-speaking work friend companions are sometimes useful. NB some people need interpreters or care assistants.

Confidential
Anything said during mediation is confidential to the parties. They may choose to reveal some or all of what has occurred during the mediation to colleagues but only if all parties agree. The only exceptions are where, for example, a potentially unlawful act has been committed or there is a serious risk to health and safety.

When Should Mediation not be Used or be Stopped?
Where clear evidence exists (including detailed written accusations) of serious Bullying, Harassment, Intimidation or Discrimination, the employer has a legal duty to protect employees by intervening, investigating and stopping any such behaviour. Mediation then can be used to repair relationships.

Reasons to Stop Mediation

• One party wants to withdraw from the process
• The behaviour of one or both parties becomes unacceptable
• Emotions and /or distress make progress unreasonable.
• The mediator realises that the issue is too serious for mediation and should be a formal Grievance.
  

Morally binding but not legally enforceable
Both parties should realise that mediation agreements are morally binding, you have given your word, but that subsequent ‘backing out’ of mediation agreements cannot be prevented.

Agreements and Failure to Reach Agreement
Mediation is not a mechanical process. People may agree but not change behaviour. People may not reach agreement but then change behaviour. Mediation should be easy, cheap and convenient enough to be repeatable whenever required, even with the same people with the same problem.

Feedback and Debriefing
It is useful for the mediator if the participants briefly give feedback about the process and the mediator’s role.

Mediators need space and time to recover from what can be an exhausting and emotionally demanding experience.

Further information on Mediation can be found on here.