Workplace Mediation in the UK: Deconstructing the Received
Narrative of Success
Acknowledgements
I am
very grateful to my lovely family for their patience and tolerance and also to C.
Irvine for his understanding and compassion.
Contents
Page
1.
Introduction 4
1.1 A Personal Preamble 4
1.2 Dissertation Justification and
Objectives 5
2.
The Political and Social Context 7
2.1 Background 7
2.2 The Gibbons Review, Governmental
Policy and the Political 7
‘Third Way’
2.2.1
The ‘what’ and ‘why’ of the Gibbons Review 9
2.3 Further developments 11
2.4 The Tribunal Fees regime: Legal
Challenge and Governmental Review
12
2.5 Introduction of Acas Pre-claim
Conciliation 12
2.6 Forth-coming Constitutional
Change 13
2.7 The decline in Tribunal
applications – Implications for mediation? 13
3.
Workplace Conflict Management Methods 14
3.1 Organisational culture and conflict
management 14
3.2 Formal grievance procedures 16
3.3 Limitations of the adversarial
system 16
3.4
External legal remedies 19
3.5 Workplace mediation 19
4.
UK Workplace Mediation in Practice: the Empirical Studies 21
4.1 Identification and Retrieval of
Research Sources 20
4.2 ‘The UK’ 21
4.3 The Identified UK Studies 24
4.4 What the Extant Studies Tell Us 29
4.4.1
East Lancashire Primary Care Trust and Northumbria Healthcare 29
NHS
Foundation Trust: organisational culture and the development
of
an in-house mediation scheme
4.4.2
The 2012 ‘QualCo’ Study: Mediation in a large non-unionised 36
private
employer
4.4.3
Mediation in SMEs 37
5.
Assessment Criteria 40
5.1 Measuring Success 40
5.2 Definition 41
5.3 Identifying ‘the Claims’ 45
5.3.1 Additional
considerations complicating ‘measurement’ 46
5.4 Measurement of Criteria
Identified 47
6.
Concluding Observations 49
6.1 Recommendations for Future
Research 50
7.
Summation: A Personal Response to the trade union member referred to
mediation 52
8.
Bibliography 54
1. Introduction
1.1. A Personal Preamble
As a Trade Union official, the
members I represent often ask: What’s the point of this mediation I’m being pushed into? Why should I agree to attend? How is this going to help me achieve the justice I deserve?
Following discussion of what
can be expected in terms of process, I’m open about my own involvement with
mediation – about my own belief in
the value of the mediation process and the fact that I am a mediation proponent.
Increasingly, it’s that
reference to belief that gives me
pause. I speak of belief – as though mediation were a matter of faith.
Mediation will help, we are
told. But how do we know that it will? Where is the evidence - and what does it
tell us?
From the members I represent -
people who are very often angry, distressed, unhappy – those are very fair questions
to ask.
So I am open with the members I
advise, disclosing my own ‘prejudice’: that despite the fact that I remain
convinced of the essential value of the workplace protections we have been
afforded by past battles for workplace rights and our rights-based system, I
would rather not recommend the
traditional formal adversarial procedures for the resolution of workplace
conflicts; that I have long concluded that conflict resolution processes which
are predicated on a legal ‘fight to the death’ serve no workplace or employee
well.
This internal conflict –
between my opinion that access to
mediation is an essential conflict resolution resource for any workplace and my
conviction that employees/employers require a rights-based legal framework
which regulates their workplace relationship/s – creates a tension I have yet
to resolve.
I do owe much, however, to
those members who ask me to explain why
I believe; who seek reassurance in
facts about mediation’s performance as a resolution method. It is their
challenge which forces me to look behind the high-level claims of government
advisors and specialist employment bodies, to examine what the extant research
tells us. Ultimately it is through improved understanding of how mediation is practiced and of what that practice produces that we gain
a fuller, truer picture of what will work best.
1.2 Dissertation Justification and Objectives
Over the last decade, the UK workplace has been witness to a
gradual growth in the use of mediation to resolve conflict.
This growth has taken place despite there being little prior
international research into its efficacy and little research since, into the
impact of its use in the UK workplace.
Further, whilst any search[1] points
to a thriving body of theoretical discourse relating to mediation – that search
also reveals a relative absence: of empirical evidence and of research
focussing on whether and under what conditions mediation works.
We have a phalanx of arguments and theories as to why mediation should – or should not - work. But little proof that it does.
As a senior Trade Union employee I know that the members I
represent are often exhorted to attend - or increasingly, simply directed to - mediation. And it is my
experience that the vast majority have only a very vague idea of what mediation
is – or of what they should expect from it.
Whilst a quantitative and qualitative longitudinal survey of
the current reality of workplace
mediation in the UK – as it is both practiced and experienced - is beyond the
scope of this dissertation, there remains a need for a critical assessment of
workplace mediation in the UK; of the academic research relative to it and of a
consideration of the nature of mediation ‘success’.
This dissertation will:
·
consider the political and social conditions leading to the
introduction of mediation;
·
describe the various conflict resolution routes available to
UK employees and consider how and why mediation emerged as a preferred conflict
resolution method;
·
reflect on the nature of the extant conflict cultures and their impact in the UK
workplace;
·
examine the claims made for mediation – stated and putative
– considering how they impact on expectations and on criteria for measurement
of success;
·
identify and review extant up-to-date empirical evidence relating to
the use of workplace mediation in the UK workplace;
·
conclude with reflections on
criteria for the future measurement of mediation and areas for further
research.
Given the significance of the
claims that are made for mediation in justifying its expansion, it is
particularly important that we understand the complex nature of mediation ‘success’
and that we appreciate the difficulties inherent in defining success criteria –
considerably more difficult than the polarised win/lose outcomes we
associate with the traditional adversarial ‘rights based’ system.
2.
The Political and Social Context
2.1 Background
The use of mediation to resolve
conflict in UK workplaces has grown gradually over the last 10 to 15 years –
with added stimulus from the Gibbons Review 2008[2] and policy pushes from successive UK Governments
and the EU[3]. This expansion and governmental enthusiasm has
occurred despite there being little international research into the efficacy of
mediation.
A 2015 CIPD analysis[4] reveals that Employers are continuing to change
their dispute resolution practice – though the stimulus largely appears to be
the introduction of Employment Tribunal fees.
It is difficult to resist the
inference that a large degree of its uptake is built on the enthusiasms of
mediation ‘evangelisers’ or ‘believers’ - enthusiasms which have been
opportunistically adopted by Governmental budgetary-driven policy pushes. How
did we get to this point?
2.2 The Gibbons Review, Governmental Policy and
the Political ‘Third Way’
The Gibbons Review saw the push towards alternative dispute
resolution methods for the management of conflict in the UK workplace begin in
earnest. This Review was commissioned in fulfilment of the Government’s promise
to review both their Employment Act 2002 (Dispute Resolution) Regulations 2004
and the statutory dispute procedures. It led directly to repeal of those
statutory procedures and to a new ‘regime’ for the management of workplace
disputes under the Employment Act 2008.
The rationale for the Review’s recommendations - which
included repeal of the statutory procedures and the introduction of greater
‘flexibility’ for the resolution of disputes – lie in Gibbons’ findings a) that
the current dispute resolution system not only mitigated against early resolution but that it increased the likelihood that
parties in dispute would find themselves before the Employment Tribunal; b)
that this was costly – in terms of financial, time and human health resources
and c) that whilst ACAS conciliation services were considered “’effective’ and
well-regarded”[5]
overall, the current system’s timescales and “structures were not conducive to
ACAS maximising opportunities for either early or late settlements in disputes”[6].
Gibbons’ intention was nakedly social engineering. He stated:
“fundamentally, what is needed is a culture change, so that the parties to
employment disputes think in terms of finding ways to achieve an early outcome
that works for them, rather than in terms of fighting their case at a
tribunal”.[7]
That he looked to the world of Alternative Dispute
Resolution (ADR) for solutions came as no surprise to those working in and
around the industrial relations scene at that time. Both in relation to his own
background and in relation to the preferred Governmental approach.
‘New Labour’ had made
it very clear that under their government, there would be no return to the days
of ‘wildcat strikes’ – there would be no second ‘Winter of Discontent’. Their
campaigning placed deliberate distance between the Party and their traditional
financial backers, the trade unions, whilst at the same time they became
signatories to the Social Chapter of the European Union’s 1991 Maastricht Treaty
immediately they took office. This is the fabled ‘third way’ approach of the
Blairite New Labour Government[8].
The ‘third way’ approach placed the policy emphasis squarely
on consensus and cooperation – with a very clear expectation that employers/employees
would work together to identify
solutions to problems[9].
‘Partnership working’ and conciliation was the name of the industrial relations
game[10]. This
approach marked a departure from the traditional adversarial style of ‘doing’
industrial relations – borrowing heavily from the language and values of
alternative dispute resolution, in particular mediation.
In this, Gibbons’ advocacy of mediation can be seen to be
‘of its time’ – in line with a Governmental culture that wanted to break with
adversarial ways of doing disputes; that wanted to move away from a
rights-based dispute resolution culture and to get people thinking in co-operative
problem-solving ways about interests instead.
2.2.1
Unpicking the Gibbons’ report
Now, 8 years on, it is important to examine the impact of
the approach Gibbons advocated. Gibbons’ position was that mediation was the antidote
required to reverse increasing ET application numbers. But what evidence did Gibbons rely upon when
advocating the use of mediation?
It is certainly fascinating to note that even at the time of
writing his Review, there was a dearth of the evidence-based empirical research
which would normally accompany promotion of a particular method or way of doing
– and what little did exist was predominantly American in origin[11].
It is also clear that Michael Gibbons support was partisan
in nature:
My
vision is of a greatly increased role for mediation; my attitude is based, as
you know, on my knowledge of the use of mediation in resolving difficult family
disputes, and also with some involvement in alternative dispute resolution
through the civil courts. Encouraged by signs of success in the context of
employment disputes elsewhere in the world, I commend increased use of
mediation to employers, employees and practitioners in Great Britain.[12]
Gibbons has absolutely no doubt that “Mediation and other alternative
dispute resolution techniques are effective means of achieving early resolution”[13], finding
support for this assertion in employment mediation schemes operating in New Zealand (NZ) and the United States (US) and
also from the use of ADR in ‘the civil courts’[14].
Despite these references to successful use of mediation in other jurisdictions
Gibbons goes on to reject the NZ model (mandatory mediation) – and whilst he
appears to prefer the US model (voluntary mediation) we are given absolutely no
details as to which type of mediation
he considers appropriate nor are we given examples of the ‘positive’ mediation
Gibbons considers is taking place in the US. Gibbons does not encourage any
critical engagement with the whys or wherefores of mediation. The Report
presents us with a series of assumptions: that the employment dispute
resolution system is strained, expensive and failing to deliver a satisfactory system of dispute resolution and that
mediation a) works and b) is a good thing. He has satisfied himself that
employment mediation is the answer to a problem (albeit a problem largely
pre-identified and the rationale for the Report) and we are to simply accept
that mediation is an effective prescription.
2.3 Further developments
Of course, the employment dispute landscape has undergone
further extensive change since the Gibbons Review. Two Regional Mediation Pilot
Schemes were announced by BIS in January 2012 and were up and running by June
2012 - with Consensio Partners managing
the training and accreditation of 24 mediators from SMEs in both Cambridge and
Manchester[15].
No identifiable pilot evaluations have been published however on the 2nd
September 2014, the Manchester Mediation Network was launched as a direct
result of the Manchester pilot[16].
Further, the Coalition Government’s introduction of the Employment Tribunals
and the Employment Appeal Tribunal Fees Order 2013[17] coincided
with the most dramatic fall in the numbers of people taking their employment
disputes to the Employment Tribunal:
In the
six-month period immediately following the introduction of fees, tribunal
applications (on a year by year basis) fell by 59% and in the second six-month
period (on a similar basis) fell by 70%.
This
latter figure may have been due in part also to the inception of the new system
of compulsory early conciliation by ACAS, but even so, it is an enormous fall,
unlike anything ever seen before.[18]
2.4
The Tribunal fees regime: Legal Challenge and Governmental Review
As promised by the Government at the time of their
introduction, a Review[19]
of the fees regime was initiated by the Ministry of Justice in June of this
year and was initially due to report at the end of 2015. At the date of writing
the Review has yet to report.
It
is certainly uncontroversial to state that the fees regime has attracted strong
condemnation from employee organisations, with the trade union UNISON pursuing
a judicial review in England (currently with the Supreme Court) and Fox and
Partners (a co-operative law practice based in Edinburgh and specialising in
representation of employees) pursuing a judicial review in Scotland’s Court of
Session – both challenging the Fees regime, though in slightly different terms.
The Fox petition was put on hold pending the UNISON decision and whilst the
Unison judicial review has so far been unsuccessful permission to apply to the
Supreme Court was granted in February of this year.[20]
2.5 Introduction
of Acas Pre-claim Conciliation
The introduction of Fees for claimants was followed by the
introduction of mandatory Early Conciliation (6th April 2014) – administered
by ACAS. ACAS themselves have evaluated the impact of this new service[21].
Arguably, given the reasons for its introduction, the most
pertinent measurement of success of the system would be the numbers of service
users who ‘avoid’ making an ET claim. Acas own an ‘‘avoidance’
rate of 48 per cent.’[22] This is a significant number of claims.
2.6 Forth-coming
constitutional change
It is worth noting that, aside from the Ministry of Justice (MoJ)
Review into the Fees regime, the landscape is subject to very significant change. The
Scotland Bill (delivering on promises made to Scotland following the
Independence Referendum of 18th September 2014) contains provisions
for the devolution of the management of the Employment Tribunal to the Scottish
Government. The Scottish Government has already stated that it is a priority
for them to abolish Tribunal fees[23].
Change in relation to Fees appears inevitable, in Scotland at least.
2.7 The decline
in Tribunal applications – implications for mediation
Given that we are certain to witness the emergence of distinct
Employment Tribunal administrations, evaluation of Gibbons’ mediation
recommendations is timely. If mediation
in employment was intended to reduce ET application numbers, one would surely
be justified in presuming that this should be the primary measure of its
success. However, with the Fees regime and with Early Conciliation we have at
least two other mechanisms to account for when considering the reduction in Employment
Tribunal applications - and we have incontrovertible evidence from the
Government data[24]
that the introduction of Fees at least coincides
with the sharpest fall in applications to that system ever recorded. The
cynical may well ask what point there is in mediation if you can reduce
Employment Tribunal applications so effectively simply by introducing a Fee.
Clearly the picture is complicated but it is clear that we cannot
attribute reductions to mediation alone. However promotion of workplace
mediation was intended to facilitate the early
resolution of workplace disputes – thus vitiating the need for an ET application.
So it is to the workplace that we must look if we are to assess mediation
success in any meaningful way.
3
Workplace Conflict Management Methods
3.1
Organisational Culture and Conflict Management
Just as individuals differ in respect of their preferred
conflict ‘style’[25]
so too do organisations.
Hofstede et al., 1990[26]
traced the roots of the phrases ‘organisational culture’ or ‘corporate culture’
to the mid 1970’s and explained:
There
is no consensus about its definition, but most authors will probably agree on
the following characteristics of the organisational/corporate culture
construct: (1) holistic, (2) historically determined, (3) related to
anthropological concepts, (4) socially constructed, (5) soft, and (6) difficult
to change.
‘Culture’
is pervasive. Organisational culture is the semiotic life breath of a company.
It is that shared comprehension of corporate values (whether enacted or
espoused and whether they are congruent one with the other); it is the
framework we hang meaning upon – and employees are, to a greater or lesser
extent, subsumed by it. It is also something that can be manipulated – and
which can, in turn, manipulate. This is classic social constructionism[27]:
our knowledge or understanding of reality is constructed via our social
interactions (externalisation); we ‘project’ this ‘reality’ which attains an
objective existence separate from us (objectivation); that projection then acts
upon us as an objective force (internalisation):
Society is a dialectic phenomenon in that it is a human
product and nothing but a human product, that yet continuously acts back upon
its producer. Society is a product of man. It has no other being except that
which is bestowed upon it by human activity and consciousness. There can be no
social reality apart from man. And yet it may also be stated that man is a
product of society.[28]
‘Culture’
operates as a powerful social control mechanism generally and the modern
organisation is no exception – in fact, there is some evidence to suggest that
it is more powerful than formal control mechanisms.[29]
Clearly, if they
are to ‘survive’ long-term as employees, individuals will adapt their own
behaviours to fit the organisational behavioural ‘norms’. This includes norms
relative to conflict management. So, whilst there may be formal written
procedures proscribing how conflict is to be ‘managed’, we have to bear in mind
that there will also be unwritten ‘rules’ or cultural ‘codes’ and ‘norms’
setting out the parameters of what is acceptable employee behaviour and how
‘we’ act – and that this will also have an impact on the way in which
sanctioned resolution routes function:
organizational culture is shared, is
socially constructed, is transmitted across organizational generations, and
contains multiple layers (Hofstede, et al., 1990; Mohan, 1993; Ostroff et al., 2003;Rowlinson & Proctor, 1999; Schein, 1992, 2000). It
serves as a powerful social control function, limits the range of acceptable
behavior, and hence, restricts individual differences in organizations (O'Reilly & Chatman, 1996).[30]
3.2
Formal Grievance Procedures
Traditionally, formal adversarial ‘grievance’ investigations
and hearings have been the route for the disgruntled employee seeking
resolution for their complaint/s. A ‘competent’ grievance – generally one which
relates to a breach of terms or conditions or which relates to the behaviour of
a colleague – will be articulated by the complainant who will also identify the
remedial action desired. This will then be considered – the complainant’s case
will be ‘judged’ – by the employer (or the relevant person as set out in the
available Grievance Policy) who will decide whether or not the grievance is ‘upheld’.
A right of appeal from this decision must be made available to the employee for
the procedure to comply with the ACAS Code of Practice.[31] Control is therefore in the hands of the
decision-maker or complaint adjudicator – with this adjudicator following the basic
procedural rules which exist to secure an acceptable level of ‘fairness’ and
‘justice’. The complainant asserts a ‘right’ – and the employer decides whether
or not they have reason to complain and whether or not the desired remedy for
the breach is acceptable.
3.3 Limitations of the adversarial system
This system has its limitations. Particularly where
employment is to continue and working relationships require to be maintained –
and to function at least reasonably well.
Providing an adversarial arena necessarily frames
the ‘complaint’ as a position that must be fought for – it forces that defensive
posture upon the complainant:
Frames are cognitive shortcuts that people
use to help make sense of complex information. Frames help us to interpret the
world around us and represent that world to others. They help us organize
complex phenomena into coherent, understandable categories. When we label a
phenomenon, we give meaning to some aspects of what is observed, while
discounting other aspects because they appear irrelevant or counter-intuitive.
Thus, frames provide meaning through selective simplification, by filtering
people's perceptions and providing them with a field of vision for a problem.[32]
We funnel aggrieved employees through a system that is itself
the consequence of a worldview predicated upon a discourse of binary opposites
– suggesting to them that this is an Aristotelean or Platonic battle between
‘right’ and ‘wrong’, good and evil. . Given that a grievance requires a great
deal of personal investment (in terms of time and also emotional health), the
pursuit of a grievance necessarily implies that the complainant is highly
invested in their view of themselves and their position as ‘correct’, ‘right’
or ’good’. The fact that an ACAS compliant procedure grants parties the right
to be represented arguably serves to enhance parallels to other adversarial
legal arenas, to heighten emotional investment and increase perception of the
self as the righteous party.
With that in mind, we can see that the
traditional workplace Grievance Procedure sends employees into battle – and
then expects – in fact, requires - them not to permit their behaviour or
productivity to be affected by the battle experience and outcome. It requires
the aggrieved party to define themselves in opposition to the other –
and then to assume at least the appearance of neutral emotional
positions when the grievance is decided. However this system does offer
the organisation an authoritative arena from which to declare its own
values – to effectively create and reinforce its own ‘world’ (and who better to
understand and judge this ‘world’ than its managers or directors). And it
offers participants at least the idea or facsimile of ‘justice’ (in a quasi-tribunal
or judgement-based ‘parallel’ that mimics external legal structures) with the
relief of an outcome or decision that is the responsibility of the ‘higher
authority’. This resonates with a deeply-ingrained Western culture of
‘absolute’ standards of ‘truth’ and ‘justice’. Think of a blindfolded
Lady Justice, staring down at us from our Courthouses, wielding the sword of
reason and weighing the merits of your case in her scales. She speaks of
impartiality; the formality of due process; the right to a fair hearing – a
given as a role-model for both the employer designing and operating a
rights-based grievance policy (as required by UK law) and for the employee
seeking a remedy. This is the world-view that underscores the 2003/04 mediation
pilot participants’ first preference for an adjudicatory process and that
leaves those participants – whether they struck agreement or not - with a
residual sense of ‘justice not done’.[33]
This also speaks to the difficulties inherent in securing the type of culture
change required to shift an employee mind-set from the adversarial to the
collaborative.
3.4 External Legal Remedies
Personal rights of action to the Employment Tribunal or to
the Civil Courts or (in the case of collective bargaining disputes or
industrial disputes) via industrial action, also exist – though they apply in
very specific circumstances. Sometimes the substance of a grievance will be
sufficient to make out a competent unfair dismissal claim (Employment
Tribunal). Most often, a breach of contract claim will begin life as a
grievance (Employment Tribunal or court). Occasionally the grievance will
involve facts which will later substantiate a personal injury claim (court
only). This knowledge (for all parties) - that there may be a sustainable case as
outlined above - can be a double-edged sword. Yes, it can sharpen minds and
encourage resolution. But realistically, by the time such an application is
made, any resolution which would encompass a continuing employment relationship
is unlikely to be desired by either party.
3.5 Workplace Mediation
There are three different models of mediation available:
evaluative, facilitative and transformative – though in the UK the predominant
model appears to be facilitative mediation[34].
The different models are predicated upon different philosophical approaches.
Evaluative involving a mediator who intervenes and actively evaluates the issues
raised by the dispute; transformative tending towards ‘therapeutic intervention’
(preferring to see facts of a dispute as symptoms of an underlying
interpersonal malaise) and facilitative which sees the mediator as the
facilitator of discussion which concentrates on interests as opposed to
positions[35].
What is clear is that
mediation offers an alternative strategy for the resolution of workplace
disputes – whether those disputes arise as a consequence of interpersonal
disputes or disputes about contractual breaches. Control of the shape and
nature of the resolution (within the parameters of what is organisationally
acceptable) is vested in the parties to the conflict, with an ‘impartial’[36]
third party ‘neutral’ (mediator) facilitating their ‘conversation’.
In the UK’s more widely used facilitative mediation, focus
is on the interests of the parties (the
theory being that satisfaction of interests will enable them to work
productively and peaceably) as opposed to their positions[37]
(which are inherently about apportionment of blame and about ‘punishment’ or
justice).
The vocabulary of mediation tends to be that of
collaboration; of people empowerment; of user-friendly informality and of the active
participation of the individual.
In general mediation operates by reframing[38]
conflict. It requires the parties to think differently about their conflict -
to ‘reframe’ or to reconceptualise the dispute, moving from binary rights and
wrongs to collaborative solution-building. If a traditional grievance hearing
is about individuals seeking resolution from an authoritative power or a
standard or value that is external to them, then mediation is about the
collective ‘we’ seeking to build a resolution that is personal and relative to them.
4.
UK Workplace Mediation in Practice: the Empirical Studies
4.1 Identification and Retrieval of Research
Sources
Sources were identified by: retrieval from UK mediation
research conducted by Acas’ Research and Evaluation Service from 2000 until the
present day; and from searches of Google Scholar; the University of
Strathclyde’s SubPrimo search function (accessible online to University library
members); the Wiley Online Library and of LexisNexis. The search terms included
‘workplace mediation UK’, ‘conflict resolution in the UK workplace’,
‘industrial conflict UK’, ‘assessment of workplace mediation in the UK’,
‘evaluation of workplace mediation UK’, ‘assessing the efficacy of UK workplace
mediation’, ‘UK workplace mediation case studies’ and ‘workplace ADR UK’.
References within relevant Acas research studies were also trawled and followed
up. Identification of extant empirical research which focussed solely on
workplace mediation as practiced and experienced in the UK was fraught and the
search results were so low as to trigger doubts that the figure could be
accurate – particularly given the high-level promotion of such mediation. However,
Bollen and Euwema[39]
writing in 2013 identified only 13 empirical studies[40]
which met their own inclusion criteria – and none of those identified by them were
of workplace mediation as is was practiced and experienced in the UK.
4.2
‘The UK’
The decision to specifically exclude those empirical studies of non-UK workplace mediation was not
taken lightly – this is not due to any crude nationalist prejudice on my part,
but rather derives from my belief that if we are to draw any meaningful lessons
from the available empirical studies then we need to screen for obvious
difference – we need to start with what we know about mediation as practiced within
the culture we are located[41].
Yes, references to ‘the global community’ are supra-common
and pepper everyday speech as we seek to indicate our increasing connectivity
and shared cultural references. However, we are not yet at such an advanced
stage that we can say there is a single World
culture – that we have cultural homogeneity. Instead, we have a disparate
number of cultures and we know that
Cultures are embedded in every conflict
because conflicts arise in human relationships. Cultures affect the ways we
name, frame, blame, and attempt to tame conflicts. Whether a conflict exists at
all is a cultural question. [42]
So, despite ‘globalisation’ there remain significant cultural
differences between Nations and specifically, between the ways in which
different peoples from different countries ‘do’ conflict. What might work in
America – or in a specific American State – may not work in the UK or in
Germany or China. As a consequence, there is a risk that, in the rush to justify
an endorsement of mediation, the impact of culture is over-looked. For
instance, the United States Postal Service’ alternative dispute mediation
program, REDRESS[43]
is now synonymous with the power of transformative mediation not only to divert
and pacify otherwise litigation-bound disputants but to ‘transform’ an
organisational culture, increasing employee harmony. The 12 year longitudinal
research program which followed the progress of REDRESS provided regular
reports each of which documented elements of the success of that program in
‘transforming’ the previously friable conflict culture.
Replace USPS with Royal Mail?
Not only have they different organisational cultures, they
are also located in very different national, political and employment cultures.
We cannot say with certainty that such a scheme would translate with the same
results from the US to the UK – and yet this is exactly what we are expected to
unquestioningly accept. It is also important to note that the facilitative mediation
as more widely preferred and practiced in the UK differs significantly from the
transformative mediation used by REDRESS – despite which there is a tendency to
assume that outcomes are the same for all models.
I have not taken this decision to exclude non-UK studies
lightly and I am aware that this appeal to at least consider cultural specificity risks a Droste-like effect: a
never-ending set and sub-set of cultures mitigating against the drawing of any
conclusions. But that is not inevitable. There is a logic in first looking at
the results from similar groupings - looking at workplaces of similar size and
business background; then at companies within their specific national context,
before attempting to draw generic conclusions. This approach makes for more
secure insights and it recognises that mediation may well be suited to very
specific situations or workplaces where the conditions for its success may be
optimised. However it is acknowledged that any globally discernible trend increases the security with which
high level generic statements about the efficacy of mediation can be made.
The reality is that there is a rich source of literature[44]
which explores the impact of cross-cultural differences within mediation, with some jurisdictions making ‘cultural
sensitivity’ a mandatory element in their mediation accreditation programmes[45]
and the International Mediation Institute offering an Intercultural Mediator
Competency Certificate.[46]
However whilst this emphasis on the need for cultural sensitivity within the process is to be welcomed –
the fact that mediation is a process
that is itself located within a culture appears to be overlooked when it comes
to the confidence with which assumptions are made and claims asserted for
mediation generally.
4.3
The UK Studies
There were four research studies identified whose sole purpose was the assessment and
consideration of workplace mediation schemes:
i) Workplace mediation: the participant
experience, Acas Research Paper 02/13[47]: a
consideration of mediation outcomes from the participant perspective together
with assessment of the possible broader organisational impact of mediation -
based on a qualitative study into mediation participants’ views regarding their
experiences of workplace mediation.
ii) Mediation and Early Resolution: A Case Study
in Conflict Management, Acas Research Papers 12/12[48]:
an in-depth exploratory case study into the use of mediation in a large private
company (‘QualCo’) in the services sector (one in which Trade unions are not
recognised). This study also focussed on whether mediation was simply a
discrete dispute resolution tool or whether its use could transform a conflict
culture.
iii) Transforming Conflict Management in the
Public Sector? Mediation, Trade Unions and Partnership in a Primary Care Trust,
Acas Research Papers 01/11[49]:
a evaluative study of the impact and efficacy of a large NHS Primary Care
Trust’s strategic decision to introduce mediation as part of a revised conflict
management system.
iv) The Acas Small Firms’ Mediation Pilot –
Research to explore parties’ experiences and views on the value of mediation, Acas
Research Paper 04/05[50]:
a qualitative evaluation of an Acas pilot, to assess the value of mediation for
small firms.
Several
research papers were also identified which considered, at least as one aspect
of the primary research purpose, the use of workplace mediation in the UK –
some of which provides empirical data
regarding the impact and outcomes from mediation and one of which presents the
data from the 2008 Acas/CIPD Telephone Omnibus Survey of 500 SMEs and their use
and experience of mediation. These are:
a) Managing Individual
Conflict in the Contemporary British Workplace, Acas Research Paper 02/16[51]:
this Paper contains a small section on workplace mediation – insights are
informed by responses from those surveyed by the researchers.
b) Towards a System of Conflict Management?: An
Evaluation of the impact of workplace mediation at Northumbria Healthcare NHS
Foundation Trust, Acas Research Paper 03/15[52]:
this case study relating to the development of a conflict management system,
also provides an evaluation of a workplace mediation scheme in an NHS Trust
which is a useful source of empirical data relating to impact and outcomes of
that scheme.
c) Analysis of the
Nature, Extent and Impact of grievance and disciplinary procedures and
workplace mediation using WERS2011, Acas Research Paper 10/14[53]:
this report analyses the results of the Workplace Employment Relations Study
2011 in relation to conflict management. The report provides useful and
pertinent data relating to the use and experiences of mediation as a dispute
resolution tool.
d) An evaluation of the impact of the internal
workplace mediation training service. Acas Research Paper 07/14[54]:
ostensibly an evaluation of Acas’ own workplace mediation training service –
however the case study sections provide useful insight from mediators operating
within three different employers, particularly regarding the wider cultural
impact of the mediation on the organisations involved.
e) Workplace dispute resolution and the
management of individual conflict – a thematic analysis of 5 case studies.
Acas Research Paper 06/14[55]: this
research paper contains a section which explores ‘innovative’ approaches to
workplace conflict – including workplace mediation.
f) Acas Individual Mediation 2011/2012:
Responses from participants and commissioners. Acas Research Paper 16/12[56]:
an evaluation of the mediation service offered by Acas but containing useful
data regarding mediation outcomes.
g) Managing Individual Conflict in the Private
Sector: A Case Study. Acas Research Papers 05/12[57]:
a report into the way in which workplace conflict, generally, is managed in a
private company (Shop Direct Group) where there is high density trade union
membership. The report contains a section assessing the extent to which
mediation is used and the potential for its development within the subject
employer.
h) Paul
L. Latreille , Franz Buscha & Anna Conte (2010) Are you experienced? SME use of and attitudes towards workplace
mediation, Acas Research Paper 05/10[58]:
Secondary quantitative analysis of the Acas Omnibus Poll of 500 SMEs – focussing
specifically on the character and experiences of the firms who have used
mediation.
i) Knowledge and use of mediation in SMEs, Acas
Research Paper 02/08[59]:
presentation of data from the Acas/CIPD February 2008 Telephone Survey. Useful
source of empirical data which is the subject of a secondary qualitative study
by Latreille et al (2012).
j) Small Firms and Workplace Disputes
Resolution, Acas Research Paper 01/08[60]:
this report presented findings from a qualitative study into the way in which small
businesses in two areas of England managed employee grievance and disciplinary
procedures. The employer views regarding ‘third party intervention’ –
alternative disputes resolution which included mediation – were solicited and
examined as part of the wider study into the management practices (at pages
45-47).
The March 2015 CIPD Research Report by the CIPD (‘Conflict
Management: A shift in direction?’) provides an insight into (predominantly)
employer responses to recent employment law developments (ET fees; pre-claim
conciliation; ‘settlement agreements’ and ET procedural changes), indicating
that whilst certain larger employers are making more use of mediation, private
companies in general and SMEs in particular lag behind the public sector. In addition the CIPD’s 2007 Conflict
Resolution Survey[61]
(798 responses from organisations employing a total of 2.2 million people and
containing some statistics on mediation use) and their 2008 survey[62] into
workplace mediation (766 responses – 327 of which from people whose
organisations had used mediation) provide additional data – though the age of
this data means that it must be used with caution, perhaps proving more useful
in benchmarking employer progression in the use of mediation.
The 2008 survey was supported and aided by Acas,
representing only one of many joint projects between Acas and the CIPD relative
to workplace mediation. The organisations also worked together on production of
guidance and case studies[63]
with these case studies providing the material for the Acas research paper
‘Workplace Mediation: A Thematic Review of the Acas/CIPD Evidence’ (Latreille
2011)[64].
Of course, Acas have also worked with the Trade Union
Congress (TUC) and other prominent bodies such as the NHS Social Partnership
Forum in an effort to ensure there is greater understanding of mediation.[65]
The significance of the role of Acas in the commissioning of
evaluative studies into mediation and conflict management in general cannot be
over-estimated. Without Acas it is fair to say that the only data available for
those interested in considering the role and impact of mediation in the UK
workplace would come from the case studies advertised on the plethora of
mediation trainer and provider websites[66].
4.4
What do the extant studies tell us about the efficacy of mediation?
4.4.1.
East Lancashire Primary Care Trust and Northumbria Healthcare NHS Foundation
Trust: organisational culture and the
development of an in-house mediation scheme
When the new Acting Human Resources Director of East
Lancashire Primary Care Trust sought to introduce mediation as a means of
reducing costs and changing the conflict culture few of her managers or trade
unionists believed the initiative would be successful. The backdrop of hostile
adversarial industrial relationships characterised by low levels of trust and
respect seemed intractable. However the experience of ELPCT (Saundry et al, 2011) is a fascinating and
largely positive story which tends to support a ‘mediation success’ claim.
Certainly, the HR Director responsible for the introduction
of the in-house mediation scheme could claim that the initiative was a success
– if we measure success in terms of how her intentions for the scheme were
realised i.e. reduction of the direct (and indirect) organisational costs of
conflict and making a ‘real cultural difference’.
Qualitative evidence from both the trade union and
management representatives at ELPCT together with empirical data relating to
mediation settlement figures, numbers of grievances pre and post-mediation
introduction and consideration of data relating to sickness absence, staff
turnover and staff survey results, support the view that mediation successfully
satisfied the HR Director’s intentions.
Interestingly, the results in ELPCT are echoed several years
later in Northumbria[67] –
with mediation proving a successful way for the NHS Trust there to resolve
disputes. The NHCT study gives more detailed information as regards mediation
participants’ experiences. Nine out of ten of the disputes referred to
mediation ended with agreement; three quarters of those who completed
evaluations would recommend mediation to a friend and the majority of
participants and managers surveyed reported satisfaction with mediation.
Of course, the picture is not uniformly positive as reservations
were expressed particularly around the use of mediation in ‘bullying’ cases
(which mangers feared could be used to obscure performance issues) – a
repeating motif in all studies identified. We also need to be mindful that at
least one third of cases referred did not actually make it to mediation (though
we are given a breakdown of reasons as to why this was the case) and that the
numbers of mediation participants returning mediation evaluations was, at 22%, a
low percentage – one that urges us to treat the results with caution.
Both studies do take some time to explain the culture into
which mediation is introduced. This recognition - that mediation does not take
place in a cultural vacuum – draws attention to possible pre-existing
organisational factors which accompany the introduction of mediation and enables
consideration of the additional factors which may be significant in terms of
outcomes.
In the case of ELPCT, the new Director was an outsider – and
therefore unencumbered by the adversarial baggage of ELPCT’s negative
industrial relations culture. She was committed to the partnership model of
industrial relations, valuing the role that trade unions could play in creating
a productive and harmonious workplace. She invested in the partnership model,
increasing decision-making transparency and strengthening employee consultation
and involvement. Arguably these steps alone would have been sufficient to
effect the culture change she was seeking to achieve. And the study quotes
participants remarking upon the ‘interdependency’ of mediation and partnership:
I don’t think it’s enough just to have mediation on its own
or just have partnership on its own… mediation wouldn’t have happened if it
weren’t for the workforce partnership which bred the trust in the first place.[68]
This
‘partnership’ or ‘collaborative’ approach is also remarked upon in the
Northumbrian NHCT study:
Almost three fifths of managers saw the dominant culture as
being collaborative, that is, involving joint working or problem solving. This
was also reflected in the relationships between key organisational actors and
the roles that they played in responding to and attempting to resolve workplace
conflict. There were very close working relationships between HR, the mediation
service and the occupational health team (including psychologists and
counsellors).[69]
As
with ELPCT, NHCT’s conflict culture change was driven by a ‘champion’ – in the
NHCT case the ‘champion’ was a consultant psychologist who was pro-conflict
management change, seeing it as a way to enhance employee well-being:
‘…it
was about culture change I think, we thought that really from the outset, that
it wasn’t just about getting a group of people trained in Mediation skills, and
providing a Service, it was about looking at embedding informal Conflict
Resolution into the whole organisation’ (Consultant Occupational Health
Psychologist)[70]
Again, as with ELPCT, mediation is not the only tool
deployed – and it is utilised not only as a conflict resolution procedure but
as part of a wider strategy which values early resolution.
As part of their systematic approach to conflict management,
NHCT also offered their managers training in handling ‘difficult
conversations’. At the time of the Acas study around 70% of managers had
received this training – and were very positive about how this had generally
enhanced their ability to do their job as managers. Somewhat similarly, the
ELPCT experience indicates that mediation training
was the catalyst for a change in perceptions
– giving participants the ability to view things from the ‘opponent’s’
perspective:
The
UNISON lead representative, who had been very sceptical of the entire concept
and process explained that the mediation training had helped him to understand
(for the first time) the perspective of managers. ‘I never wanted to go into a
room and believe that the manager at any point in any kind of dispute was
right. Or even believe that they were a human being.…Mediation gets people to
sit in the other person's shoes…until you can understand what pressure
somebody's under, or how they think, you know, don't judge them.’[71]
This type of emphasis on the value of communication skills is clearly an important factor in both NHS
Trusts’ attempts to manage conflict more positively. Whether it’s ‘difficult
conversations’ or ‘team facilitation’ and ‘conflict coaching’, both Trusts
deploy a suite of skills and strategies to manage conflict. In the case of
NHCT, the mediation service is
responsible for the provision of the team facilitation and conflict coaching
whilst in ELPCT the strong partnership and collaborative skills and training
complement mediation procedures. And arguably it is this alliance of skills and techniques which ensures the relative
success of the Trusts’ initiatives.
In fact, for anyone seeking to understand and evaluate
workplace mediation there is an inherent danger in the way in which mediation services (ancillary skills and
techniques which are nurtured or facilitated by the service) and the mediation procedure (the formal procedure which
the mediator and disputants are party to) are often used as though
interchangeable. Or the term ‘mediation’ is used in a very wide, generic sense
– encompassing not only the procedure, but the discrete skills and techniques
and values intrinsic to the practice
of mediation – more ‘mediation-style’ than ‘mediation’.
It would certainly aid evaluation if mediation was defined with greater clarity.
It would also be useful to know which type of mediation is
employed – though, in the case of ELPCT, from information on the mediation training
provider’s website[72]
it looks as though Consensio Partners (used in ELPCT) train in the use of
facilitative mediation. This lack of clarity does mean that we can draw no firm
conclusions as to the mediation methodology most suited to employee disputes.
Overall, however, it was the very strong similarities
between the language used for partnership working and for mediation which immediately
struck this trade union activist and employed Officer. Given that Partnership
working was once so heavily touted as the antidote to negative adversarial
industrial relations (and even yet, in the NHS in particular, Partnership
Forums are still very much the established way of conducting business) – it
feels unsafe to attribute improvements in the conflict culture of the Trust to
one single dispute tool.
For example, recognition of the value of training in the
handling of difficult conversations and also in the mediation training (in
terms of how it facilitates greater understanding by increasing awareness of
the multiplicity (and value) of many different perspectives) is striking. But
the studies give us no ability to ‘weigh’ the techniques – perhaps it’s the
case that ‘difficult conversations’ training or improving management
communication skills would be very significant, on their own, in reducing conflict
and changing an organisational culture. Unfortunately we cannot make that
determination.
Consider, for instance, the ‘building blocks’ which are held,
by a 2004 Partnership Working Research Report[73]
(commissioned by the then Scottish Executive) to be essential components for
the creation of a partnership relationship: trust; mutual respect; openness;
tolerance and continuity. Partnership
behaviours are further designed as requiring
partners to be ‘less attached to fixed outcomes, and more open to new ideas or
approaches’[74].
‘Partnership’ is about collaboration; about working together; about
understanding that the partners’ interests intersect and that jointly created
solutions to organisational issues and concerns establish a firm foundation for
the business to thrive.
The philosophical values underpinning Partnership
working are very strongly echoed by those used by Gibbons, for instance, when
he was advocating the use of mediation.
This begs an important question that neither case
study addresses: to what extent do claims for mediation’s transformative culture
changing powers depend upon the mediation process
or upon the values, skills and techniques which inform that process? In other
words, could we take the skills and techniques and values of mediation –
without making any use of the process
- and achieve the same culture change? After all, the discrete skills of the
mediator are transferable and widely used elsewhere. From rapport-building
skills; active listening skills; forensic skills and the ability to behave
impartially, giving equal attention to all parties[75] – we
have skills and abilities which are valuable regardless of whether they come
attached to a dispute resolution process. It is undeniably the case that
mediation training will nurture those skills – but it is also the case that the
same skills can be encouraged in different ways and via training specific to
their use.
For example, the English NHS ‘Social Partnership
Forum’[76]
provides a number of case study examples of partnership working leading to the
transformational outcomes[77] claimed
for mediation and in fact, provides one case study where the industrial
partners agreed a ‘fast track’ disciplinary process which has significantly
reduced the time spent on disciplinary hearings (and on the associated stress
and lowered productivity)[78].
4.4.2.
The 2012 ‘QualCo’ study[79]:
Mediation in a large non-unionised private employer
The QualCo study provides a useful counterpoint
to the ELPCT and NHCT case studies – though the conclusions to be drawn
vis-Ã -vis the need for line management awareness and understanding and for the
efficient organisational promotion of the scheme remain the same.
At the time of their writing, the QualCo scheme provided
the researchers with no evidence that introduction of an in-house mediation
service could, on its own, change a conflict culture, leading them to conclude
that:
public
policy and HR strategy designed to change the culture of conflict management cannot
simply view the introduction of in-house mediation as a panacea.[80]
This finding was later echoed by Saundry et al, 2013 (at
page 4) where the researchers state: ‘There was little evidence from this
sample that mediation had a broader impact on the organisations involved.’ Though
it must be noted here that it is not clear what the researchers mean by
‘broader impact’ – particularly as they observe that there was some evidence
that the mediation process impacted (positively) on managerial conflict handling
skills and that it appeared to encourage a ‘degree of pragmatism’ amongst
participants (at page 4).
However, if there was no wider cultural change identified, the
QualCo example did offer evidence that “the success rate of cases referred to
the mediation scheme was very high and the satisfaction of managers and
employee representatives who had been involved with specific cases was
evident.”[81]
Where the scheme in QualCo diverged from (and possibly
exceeded) established notions of mediation’s utility as an early intervention
tool is that in QualCo it was commonly a resolution destination of ‘last
resort’ – with reluctance to use it earlier in the dispute cycle perhaps
explained by line management fears that early use signalled their management
failure. This ‘last resort’ quality did produce some interesting results that
suggest mediation can and should be offered even where employment tribunals
claims had been lodged and the claimant was already out of the workforce –
though this study did pre-date the mandatory pre-claim conciliation which was
introduced on the 6th April 2014 and the ET Fees regime which has
reduced the likelihood of such claims being made.
Comparison of the QualCo experience to that of ELPCT points
to potential benefits which may be derived from a higher mediator to employee
ratio (there were 12 times as many mediators in ELPCT as compared to QualCo)
and from a geographically limited site (QualCo was a national employer). It may
be that these conditions optimise the transformative
effect of mediation – though further studies would be required to firmly
establish any such link.
4.4.3
Mediation in SMEs
In 2003, Acas established
a pilot project to examine the effectiveness of mediation as a means of
settling disputes in small firms. Seargeant’s 2005 paper looked at ‘17
mediations carried out in 16 firms, 14 of which were facilitative mediations
and 4 directive mediations.’[82]
This was a small sample from a small pilot. Only 26
mediations (out of 134 firms) had taken place during the course of the
year-long pilot. Of those, only the mediations which had taken place 3 months
or more before the evaluation were eligible for inclusion – and of those 19, interviews
with 17 mediations were successfully organised. There was no consistency in
relation to which party/parties responded – the pattern of the interviews was described
by the surveyor as ‘complex’.
Interviewees gave responses that will be familiar to those
interested in mediation, expressing both reservations and giving positive
reasons for mediation participation - from the ‘it’s quicker/cheaper’/’but it
increases vulnerability to litigation’ employer rationales; to the general
appreciation of the mediator’s skill and ability to appear both calm and
unbiased; to feelings that the mediation was ultimately a less preferable
alternative to the desired ‘adjudication’ (which was accompanied by a sense
that ‘justice’ was not fully realised as this preferred adjudication did not
take place). But generally, the pilot mediations were well received and appear
to achieved, at the very least, a temporary cessation of dispute hostilities
and at best, positive changes to workplace culture and confidence for both
employer and employee interviewees – which corresponds to findings from the
Northumbria and East Lanacashire NHS studies discussed above and provides at
least some evidence of the ‘upstream effects’ touted by the Gibbons Report as a
mediation benefit.
These
outcomes show a clear positive influence for mediation with immediate results.
Longer-term effects of mediation on the disputes show a more mixed picture, but
were nonetheless reported as of real benefit to firms by the employers. In
describing how mediation had influenced the disputes most parties identified
factors beyond the content of a mediated agreement or the mediator’s
recommendations. Whilst ascribing a key role in effecting change to the
agreements or recommendations, there was at the same time a common view of
mediation as a wider intervention, with influences beyond the specifics of the
agreement itself and its practical content.[83]
Arguably, for a dispute resolution procedure, the most
negative reservation expressed related to ‘a sense of justice not done’:
In two
of the four cases where an agreement was reached parties described agreement as
the only way of concluding what they experienced as a very stressful process
and not as a genuine route to resolving the dispute. It was hardly surprising
then that in these cases parties were left with a sense of justice not done.
Further, whilst it is understandable that a meeting with
your disputant (however well-supported and ‘safe’ that may be) could be
experienced as stressful, it is concerning to note that in at least three of
the cases where ‘the parties had not found the mediation in their terms a
‘success’…Parties felt… agreements were reached because both sides wanted to
put an end to a very long process and that spending very long times in
mediation had not really contributed much to resolving the dispute.’[84] This
is tantamount to settlement by attrition – wearing participants down until they
capitulate.
It is difficult to judge the prevalence of this sentiment.
Responses obviously depend on the questions asked by the researcher – but this
does not appear to be a sentiment highlighted elsewhere. It could be aligned to the length of time
allocated to the mediation or perhaps to the style of the mediator or perhaps
it goes to the screening process and the unsuitability of the dispute as a
mediation subject.
What is clear from Seargeant (2005), Johnston (2008) and
from Latreille (2011) is that previous knowledge and experience (particularly
positive) of mediation is predictive of future use and of positive attitudes
regarding its efficacy. There is correlation between firm size and attitudes regarding the conflict stage at which mediation
is felt to be appropriate – the smaller the firm, the more likely they are to
believe that mediation is a ‘last resort’ measure. This may be related to
concerns regarding the perceived cost
of mediation (Seargeant 2005; Johnston 2008 and Latreille et al. 2010).
There is also – and this flies in the face of recent
Employment policy intentions – little evidence from the studies above, that
those who are aware and who have used mediation have done so believing that it
will help avoid employment tribunal applications. Given that respondents to the
surveys are more likely to use mediation for situations that are arguably less
likely to lead to an ET1 (such as communication difficulties and relationship
breakdowns) this may be understandable.[85]
5.
Assessment Criteria
5.1
Measuring Success
The simplest measurement of the success of any new initiative,
mediation or otherwise,
requires:
1. Definition of the project/subject.
2. Identification and
delineation of the claims being made for the subject (what the parties
believe mediation exists to do or is
intended to achieve in the workplace);
2. Measurement and Assessment of the outcomes/outputs of that initiative (how well
does it realise the claims that are made for it?)
Outcomes/outputs refer to the products of the mediation process.
However, there is an additional, external dimension – that
is the context in which mediation
operates - which will impact significantly on those outputs and which, if
adequately understood, may afford an opportunity to optimise mediation’s
positive impact.
Mediation practice itself recognises this when it engages in
pre-screening for mediation suitability (looking at the character of a dispute
and considering the stage which the conflict has reached). In addition, the
identified UK studies have flagged organisational conditions which appear to
favour the introduction and use of mediation and optimise positive outcomes:
·
the existence of positive industrial relations (described as
characterised by ‘trust’) (Latreille & Saundry, 2015 and Saundry et al,
2011)
·
the support or ‘buy-in’ of managers (Latreille & Saundry,
2015; Saundry et al, 2011 and
·
management training in ‘difficult conversations’ (Latreille
& Saundry, 2015)
·
mediation or partnership training generally (linked to
‘trust’) (Latreille & Saundry, 2015)
·
the existence of a mediation ‘champion’ (Saundry et al, 2011
and Latreille & Saundry, 2015)
·
a discrete geographical ‘unit’ (as opposed to dispersed
units operating nationwide) – comparing the results in Seargeant, 2005; Saundry
et al, 2011 and Latreille & Saundry, 2015 to the results in Saundry et al,
2012.
·
the use of external mediators (in the case of small
employers – Latreille et al 2010, page 3)
5.2 Definition
Too often the extant studies fail to adequately define their
subject. Reference is made to ‘mediation’ but either little attempt is made to
define the type of mediation in use (see for example Latreille & Saundry
2015 where we assume that the mediation referred to is facilitative but cannot
be certain) – or it is clear that there is a mix of ‘types’ but (perhaps
because the study is small and there are few respondents to the evaluation) the
difference between the results for both is not addressed (Seargeant, 2005).
The mediation might be external or internal (in-house); it
might be facilitative, evaluative or transformative; it might take place in a
micro, small, medium or large employer; the employer might be public, voluntary
or private sector; the workplace might be unionised or not; the employees might
be represented or not; the underlying industrial relations might be trusting
and positive or not… these are all variables that we ignore at our peril and if
we fail to identify the differences we may well find that we draw generic conclusions
that are not reliable and do not apply to every or all workplaces.
I am not alone in making this observation. Depressingly,
Dolder, in her 2004 paper ‘The Contribution of Mediation to Workplace Justice’
was making similar observations (albeit about the New Zealand experience –
subject of a study by Susan Corby[86]):
I can
find no explicit references indicating which mediator orientation is preferred
in the New Zealand context, nor how the process is matched to a particular
dispute, disputant or environment, if at all.[87]
When Gibbons, for example, recommends mediation for the
resolution of ‘disputes’ it is very clear that he is specifically including
those types of workplace disputes that are justiciable – and that his
definition involves the ‘disputes’ that emanate from disciplinary action as
much as from grievances. However it is similarly obvious from analysis of the
Workplace Employment Relations Survey and the Workplace Industrial Relations
Survey data, that disputes emanating from grievances
are statistically more likely in larger public sector and more unionised
workplaces – whereas disputes emanating from disciplinary proceedings are far more likely to occur in private
non-unionised companies (coincidentally these are also employers who have high
dismissal rates and workforces with higher numbers of women employees or
employees from minority ethnic groups):
More
broadly, Kersley et al. (2006) point out that those industries with low levels
of individual employee grievances tend to be characterised by higher rates of
disciplinary action. Interestingly the wholesale and retail sector (in which
this case study is located) is illustrative of this pattern. Therefore, it
would appear that key variables impact upon employee grievances and
disciplinary disputes in very different ways, making generic prescriptions
problematic.[88]
In addition, when referring to the ‘upstream’ effects such
as the potential cultural impacts of mediation there is a reluctance to
differentiate between the process proper
(which is rightly focussed on resolution of specific disputes) and more diffuse
skills and techniques which are used in mediation and which are ultimately
transferable and generic and which can exist independently of the mediation
process. In other words, between mediation as a process and mediation as a way of conducting oneself, a toolbox of
skills or a technique.[89] This is specifically acknowledged by
Saundry and Wibberley (2014) here:
Involving
operational managers and employee representatives in the implementation and
operation of in-house mediation schemes can lay the basis for attitudinal
change and improved relationships. However, models of mediation based around
schemes populated by accredited mediators may not be flexible enough to deliver
the more fundamental cultural changes envisaged by the government. Instead
there is a need for greater focus on disseminating and developing mediation
skills as opposed to building mediation structures.[90]
If we consider that mediation is, primarily, a dispute
resolution process then that is how we define it and it is to the outcomes or outputs of those discrete mediated disputes (and to disputing
numbers in general) that we must look
for measurement of ‘success’.
If – and the extant UK studies are by no means decided on
this – it is ‘mediation as ‘culture-transformer’ that interests us, it would be
helpful to explore whether such cultural benefits would accrue from
introduction of ‘mediation-style’ skills, techniques and values (as detached from the process).
This might possibly be achieved vis-Ã -vis ‘partnership working’ training or
‘difficult conversations’ training or by encouraging collaborative working
which crosscuts grades and professions or job roles.
I understand that this last might be considered unnecessary
as the thesis is that the process brings with it secondary cultural benefits.
However, for those employers concerned to transform their conflict culture but
anxious about the costs of mediation, it may well be cheaper and more useful
for them to consider nurturing the skills that Saundry and Wibberly (2014)
refer to as ‘mediation skills’ and that Daniel Dana introduces us to when
describing his concept of ‘preventive mediation’ or ‘how to mediate all the
time to prevent conflicts’[91].
This is the controversial concept of mediation that involves neither third
party nor a conflict to resolve – controversial because it divorces procedure
from the skills deployed during the procedure and yet still desires the label
‘mediation’.
5.3
Identifying the claims
The decision to promote, introduce, offer or enter mediation
is purposive - parties to mediation
enter with purpose, with intention and will have expectations.
We need to examine what that purpose is believed to be if we
are to discern criteria against which we can measure or judge mediation
‘success’.
It is clear that all parties to mediation (whether willing
or not and regardless of their level of knowledge regarding mediation) believe
they are engaged in a dispute resolution procedure.
In general terms, the extant literature appears unanimous:
conflict represents a cost (whether financial or welfare based) to the employer[92]
as well as to the employee and mediation, as an ADR process, offers a route to
resolution. We can therefore identify ‘mediation resolves conflict’ as the
principal ‘claim’.
Valerie Antcliff[93]
(albeit referring specifically to mediation in SMEs) expands on this,
explaining that the:
Benefits
of mediation can be conceptualised across two dimensions: provision of quick,
cost effective and successful dispute resolution; ‘upstream’ benefits relating
to improved employment relations, more effective conflict management skills and
a supportive organisational culture (CIPD, 2007; CIPD, 2008).
As discussed earlier, this dual purpose is one highlighted
by Gibbons and reiterated by both Acas and the CIPD in their own guidance.
We can therefore also identify ‘mediation can positively
transform organisational culture’ as an additional ‘claim’.
5.3.1
Additional considerations complicating ‘measurement’
We may be able to identify two separate claims that are made
for mediation however, what is less immediately obvious is that ‘resolution’ (and
‘culture changing’) can mean different things to the individual parties:
there are many stakeholders
involved in any conflict situation, including the parties themselves,
team-members and colleagues, managers, HR and Unions. Measuring success in
mediation begs the question: success for whom? It may be that as a result of
mediation, the issue is resolved from the point of view of HR, whilst the
parties are left feeling just as frustrated as before. Or, the parties may feel
that the conflict has been resolved but HR is not satisfied with the outcome.
Ideally, all stakeholders will view the mediation as successful. But reality
may differ. [94]
Add to the workplace mix, the views of governments and
government departments, trade federations and trade unions. The mediators,
mediation trainers and the employment lawyers and academics. A cacophony of
vested interests; a unique set of proponents and opponents; a mixed bag of
competing motivations. And regardless of how objectively each group believes
they approach the case for mediation it is ineluctable fact that human
comprehension is subject to a vast array of cognitive bias[95]
pressures and that, as a consequence, phenomenon are interpreted through the
lens of a biased filter. Crudely, we interpret in the light of our preferences
and prejudices – though this is not a deliberate or conscious process.
5.4
Measurement of criteria identified
There are a number of ways in which the identified claims
can be measured:
1)
Quantitative data
A conflict resolution tool that does not resolve conflict is
not a conflict resolution tool – so
of course we need to track the numbers:
a.
of cases referred to mediation (looking particularly at
pre-screening)
b. the
proportion of cases referred that end with settlement/agreement
c. the
duration of that settlement (going to sustainability)
d. staff
turnover and sickness absence (which can be very revealing of employee
welfare/morale)
e. numbers
of grievances and disciplinaries pre and post mediation
f.
numbers of employment tribunal applications and other legal
actions
g.
the costs associated with mediation and with
grievances/disciplinaries.
The difficulty is that these figures tell us little about
the quality of the mediation or of
the ‘settlement’. For example, an employee may settle out of a sense of despair
(Seargeant, 2005) and/or the agreement may not be sustained; an employer may be
unhappy with the terms of an agreement employees negotiate; one party may feel
aggrieved due to an unaddressed power imbalance; a party may simply move to
another employer as soon as they are able. There are multiple reasons why the
poor quality of a mediation might mean we would choose not to call that
mediation a success – regardless of whether there was agreement or not.
2) Qualitative data:
Success isn’t just something that can be measured in
numbers. It is experienced. It is
therefore important that we elicit the quality of that experience if we’re to
have a fuller picture of what mediation is actually achieving.
Dispute resolution necessarily involves issues of ‘justice’.
Organisational justice is concerned with issues of right and wrong – with
perceptions of how fair the workplace
is (Baldwin, 2006). This can be articulated in numerous ways: simply as a sense
of ‘fairness’; of being heard; of a belief there is equity in outcomes and
treatment.
Whilst a more detailed discussion of workplace justice is
beyond the remit of this dissertation, work psychologists describe several
types of organisational justice – broadly, ‘distributive, procedural and
interactional’ (Baldwin, 2006)[96]. This
is most commonly articulated as a ‘four-factor model’: ‘distributive,
procedural and two classes of interactional – i.e. informational and
interpersonal.’[97]
However it is clear that the way in which mediation impacts on both the
individual and the organisation is an important indicator of mediation success
– and that the experience of mediation can be described in terms of whether
justice was felt to be done. This can be as much about how the mediator was
perceived to behave towards the parties as it has to do with perceptions
surrounding how the agreement was achieved and what it contained.
It bears mention here that despite the significance of
‘justice’ in relation to reasons why mediation may be deployed (and in relation
to criteria which are significant to the measurement of mediation ‘success’)
the 2013 Guide[98]
produced by Acas and the Chartered Institute of Personnel and Development does not
mention the word justice at all.
As previously touched upon in 4.2 above, description of the
workplace culture is also a
significant factor meriting inclusion in any research project seeking to
understand mediation ‘success’.
Of course, it takes time to generate and then to assess both
qualitative and quantitative data sets. Longitudinal
studies which would allow comparisons to be made and trends detected, are
essential. Cultural change – if it is to happen at all – is not going to happen
overnight. And ‘success’ is a great deal more nuanced and complicated than
percentages of cases settled.
6. Concluding Observations
It is clear that there is growing awareness of mediation as
a workplace conflict resolution tool
(Saundry and Wibberley, 2014; Latreille et al, 2010; WERS
2011). However it is difficult to assert a uniform increase in the use of
mediation in all types of UK Workplaces (Saundry et al, 2016).
At the same time, whilst the first findings from WERS 2011
indicated that almost two-thirds of employees work for employers who provide access
to mediation it is also clear that “this has not translated into a high level
of use.”[99]
And in any case, as has been pointed out elsewhere[100]
(Branney, 2013) this ‘provision’ may be due to a misunderstanding of what
mediation actually is.
There are also clear differences between sectors (both in
terms of whether the employer is public, voluntary or private and in relation
to employer size) in terms of perceptions of mediation. The impact of this
perception manifests in a variety of ways. For example, SMEs who are aware and
have experienced mediation are more likely to believe it is a good way of
resolving conflict – this sector also show a preference for external mediation
but inhibitions regarding cost anxieties (Seargeant, 2005; Johnston, 2008;
Latreille et al, 2010).
The existence of an integrated conflict management system
and a collaborative workplace culture with positive industrial relations
appears to optimise the success of mediation (as measured in numbers of
settlements/agreements) and its impact on the general culture (Saundry et al,
2011; Latreille and Saundry, 2015). However these systems are more likely in
large employers. There is a certain sad irony that whilst SMEs are
over-represented, statistically speaking, in terms of Employment Tribunal
applications, they actually report fewer workplace conflicts and decreasing
organisational size is correlated to a lower number of conflicts (Wood et al,
2014) – this may be indicative of organisations which tend towards mediation as
a last resort in situations where people are too entrenched to voluntarily
enter mediation.
6.1
Recommendations for Future Research
Increasingly, as I’ve progressed through the study involved
in this dissertation I find that it’s to the United States Postal Service’
REDRESS project that I look for inspiration –
it is certainly a research project of that magnitude that is required
here in the UK. Although, in a perfect mediation researcher’s world there would
be several such projects running in tandem covering all employment sectors
(public/voluntary/private; large/SME; unionised/non-unionised etc)…
The extant UK research gives us snippets of information –
pieces of a mediation jigsaw. But currently, the picture that has emerged only
permits us to say that for certain
disputants involved in certain types
of workplace disputes in certain
workplaces, then mediation is likely to be ‘successful’.
We need further, comprehensive longitudinal qualitative and
quantitative research which covers all dimensions ensuring the variables are
fully and clearly designed and defined. The significance of accurate definition of the variables cannot be
overstated. This is not pedantry. Without clarity and consistency in the use of
terminology we can draw no reliable conclusions. The fact that we seldom know
what the extant research believes can be captured under the term ‘mediation’
(what type/whether what is referred to is a ‘mediation-style’ conversation with
a line manager or is the full mediation procedure) should be sufficient to
alert our caution in the use of any data.
This ‘definition exercise’ should include:
·
who (describing the parties to mediation and also how they
were selected as ‘mediation suitable’)
·
what (the nature of the conflict being mediated – defining
‘conflict’)
·
when (the stage at which mediation is offered)
·
where (the nature and culture of the employer – sector;
size; state of industrial relations and details of staff turnover/sickness
absence/numbers of grievances)
·
why (the objectives of the mediation – criteria for
mediation ‘success’)
·
how (the type of mediation – in-house or external;
facilitative, transformative or evaluative)
One particular area ripe for further investigation concerns
the impact of organisational culture on workplace mediation. What Saundry et
al, 2011 and Latreille and Saundry, 2015 appear to point to is that culture impacts on mediation’s chances
of success. This contradicts the dominant view that mediation changes culture. It
would be useful to examine the interaction between both in detail – with a view
to defining the optimal conditions for mediation to thrive and/or allow
informed choices to be made by employers as to the type of employee skills
training they will provide.
7.
Summation: A personal response to the trade union member referred to workplace
mediation
I began by introducing you to the trade union member who
asks why they should participate in mediation.
So what, if anything, can I say to that member?
I can and will point them to the evidence that mediation
either partly or completely resolved the referred conflicts in between 82%
(Johnston, 2008) and 96% (Saundry et al, 2011) of cases and that participants
report satisfaction with the process and the outcomes.
However I will be open about the fact that we know little
about the pre-screening criteria used and therefore cannot comment on whether
their case would be sufficiently similar enough to those cases which were
successfully mediated to bear comparison. And I will flag the significance of context – that mediation ‘success’ (as
measured in terms of agreement) and participant satisfaction may not correlate[101]
and that there may be much about the culture
of a workplace (whether there is an atmosphere of trust and positive industrial
relations) that works either for or against mediation success.
I will not shield them from the likelihood that they will
find mediation stressful. However I will similarly not shield them from the
reality that the formal routes open to them – which, in the case of my own
members (Secondary School Teachers working predominantly in the public sector)
is more likely to involve formal grievance hearings – are also likely to be
stressful. And that it is the majority experience that those grievances are
seldom fully upheld – but instead will involve a disposal which will often
entail recommendation that mediation take place.
This much is certain: despite the gaps in knowledge and the
uncertainties that remain, I will continue to encourage the uptake of any
mediation offer.
And whilst I acknowledge that the following is personal and
necessarily anecdotal: it is important to me that I have never witnessed a member’s
dispute deteriorate after mediation. It follows then, that if the worst I can
say to a member is that I have never seen mediation do any harm – and the best is that I have observed it transform
relationships between disputants, then that is sufficient recommendation –
though I will still be using that reference to belief.
BIBLIOGRAPHY
https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does
ACAS
2013 Mediation: An Approach to Resolving
Workplace Issues [ONLINE] at http://www.acas.org.uk/media/pdf/2/q/Mediation-an-approach-to-resolving-workplace-issues.pdf
[accessed 25 March 2016]
Acas/CIPD,
Guidance 2013 Mediation: An Approach to
Resolving Workplace Issues [ONLINE] http://www.cipd.co.uk/binaries/mediation-an-approach-to-resolving-workplace-issues_2013.pdf
[accessed 7 April 2016]
Acas
Research and Evaluation Section (2012) Acas
Individual Mediation 2011/2012: Responses from Participants and Commissioners.
ACAS Research Paper 16/12 [ONLINE] http://www.acas.org.uk/media/pdf/8/o/Acas-Individual-Mediation-Report-2011-12-acccessible-version.pdf
[accessed 21 March 2016]
Antcliff
A., 2013 Use of Mediation by SMEs in
Great Britain Conference Paper [ONLINE] available at http://www2.mmu.ac.uk/media/mmuacuk/content/documents/carpe/2013-conference/papers/social-innovation/ValerieAntcliff.pdf
[accessed 2nd March 2016]
Baldwin
S., 2006 Organisational Justice
Institute for Employment Studies [ONLINE] at http://www.employment-studies.co.uk/system/files/resources/files/mp73.pdf
[accessed 11 April 2016]
Berger
P.L., ‘The Sacred Canopy: Elements of a Sociological Theory of Religion’ Garden
City, N.Y., Doubleday, 1967
Berger
P.L and Luckmann T. ‘The Social Construction of Reality: A Treatise in the
Sociology of Knowledge’ reprinted in Penguin Books 1991
BIS
(2012) [ONLINE] at https://www.gov.uk/government/news/regional-mediation-pilot-schemes-up-and-running
accessed on the 26th February 2016
Blomgren Bingham L. and Good D.H., "Organizational
justice and workplace mediation: a six‐factor
model", (2007) International Journal of Conflict Management, Vol. 18 Issue 2, pp.148 – 174 [ONLINE] at http://www.emeraldinsight.com/doi/full/10.1108/10444060710759354 [accessed on 12th April 2016]
Bollen
K., and Euwema M., 2013 ‘Workplace
Mediation: An Underdeveloped Research Area’ Negotiation Journal Vol 29,
Issue 3, pages 329-353 [ONLINE] at http://onlinelibrary.wiley.com/doi/10.1111/nejo.12028/full
[accessed 25th February 2016]
Branney
V., (2013) Grievance Procedures and
Workplace Mediation: The case for peaceful Coexistence [ONLINE] at
https://www.uclan.ac.uk/research/explore/groups/assets/virginia_review_of_series.pdf [accessed 6th of April 2016] (Draft Paper)
Broughton
A., Ledermaier S. and Cox A., (2014) An
evaluation of the impact of the internal workplace mediation training service Acas
Research Paper 07/14 [ONLINE] at http://www.acas.org.uk/media/pdf/8/b/0714-CIWM-impact-evaluation.pdf
[accessed 27th of March 2016]
Brown,
William (2011) Industrial Relations in
Britain Under New Labour 1997-2010: A Post-mortem [ONLINE] at http://www.econ.cam.ac.uk/dae/repec/cam/pdf/cwpe1121.pdf [accessed 7th September 2015] and Journal of Industrial Relations (June 2011) Vol.
53 No. 3 p 402-413 [ONLINE]
http://jir.sagepub.com/content/53/3/402.full.pdf+html?hwshib2=authn%3A1460648615%3A20160413%253Aefcfdc64-8eba-4c03-a4ee-ea233ed9c8f6%3A0%3A0%3A0%3Amc4DEBlkzGa1%2BWTi0g8QEg%3D%3D [accessed 13 April 2014]
CIPD
Research Report March 2015, ‘Conflict Management: A Shift in Direction’ [ONLINE] at http://www.cipd.co.uk/binaries/conflict-management-shift-direction.pdf
[accessed 26 October 2015]
CIPD
Survey Report Feb 2007 Managing Conflict
at Work [ONLINE] at http://www.cipd.co.uk/binaries/manconflwrk.pdf
[accessed 7 April 2016] and also
CIPD
(2007) Managing conflict at work [online].
Survey Report London: CIPD. [ONLINE] at
http://www.angelproductions.co.uk/pdfs/workplacemediation.pdf
accessed on the 24th February 2016
Coben
L., Mediation’s Dirty Little Secret:
Straight Talk about Mediator Manipulation and Deception, (2000) Journal of
Alternative Dispute Resolution Vol. 2 No. 4 p.4 [ONLINE] at
Coke,
Tania. 2011 ‘Success and sustainability
in mediation’ [ONLINE] at http://www.hrmagazine.co.uk/article-details/success-and-sustainability-in-mediation
[accessed 29th February 2016]
Corby, S. (1999). Resolving
employment rights disputes through mediation: the New Zealand experience,
London: Institute of Employment Rights
Dana
D., 2001 Conflict Resolution: Mediation
Tools for Everyday Worklife McGraw-Hill Companies e-book Available [ONLINE]
at
https://www.dawsonera.com/readonline/9780071399678
[accessed 10 April 2016]
Davey,
B and Dix, G (2011) The Dispute
Regulations Two Years On: the ACAS Experience Acas Research Paper 07/11 [ONLINE]
at http://www.acas.org.uk/media/pdf/6/6/The-Dispute-Resolution-Regulations-two-years-on-the-Acas-experience-accessible-version-December-2011.pdf
[accessed 7 September 2015]
Davidheiser, Mark. "Mediation and Multiculturalism: Domestic and International Challenges." Beyond Intractability. Eds. Guy Burgess and
Heidi Burgess. Conflict Information Consortium, University of Colorado,
Boulder. Posted: January 2005 [ONLINE] at http://www.beyondintractability.org/essay/mediation-multiculturalism [accessed on the 26th March
2016]
Dolder
C., 2004 ‘The Contribution of Mediation
to Workplace Justice’ Industrial Law Journal 33 (4) pages 320–342 [ONLINE] at http://ilj.oxfordjournals.org/content/33/4/320.full.pdf+html [accessed 25 February 2016]
Downer
M., Harding C., Ghezelayagh S., Fu E. and Gkiza M., (2014) Evaluation of ACAS Early Conciliation 2015 Acas Research Paper
04/15 [ONLINE] at
http://www.acas.org.uk/media/pdf/5/4/Evaluation-of-Acas-Early-Conciliation-2015.pdf
[accessed 20th October 2015]
Employment
Tribunals and Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 [ONLINE]
at http://www.legislation.gov.uk/uksi/2013/1893/contents/made [accessed 19
October 2015]
European Commission. 2004. Proposal for a directive of the European
Parliament and of the Council on certain aspects of mediation in civil and
commercial matters. COM (2004) 718 final. Brussels: European Commission
Federation
of Small Businesses, Press Release 2014:
[ONLINE] at http://www.fsb.org.uk/media-centre/press-releases/fsb-welcomes-launch-of-new-regional-body-for-business-mediation-in-greater-manchester-fsb-pr-2014-02
[accessed 26 February 2016]
Fisher
R., Ury W. & Patton B., (1991) ‘Getting
to Yes: negotiating an agreement without giving in’ New York N.Y., Penguin
Books 18th Edition
Gibbons
M. (2007) A review of employment dispute
resolution in Great Britain, DTI [ONLINE] at http://webarchive.nationalarchives.gov.uk/20090609003228/http://www.berr.gov.uk/files/file38516.pdf
[accessed 23 October 2015]
Haselton, M. G., Nettle, D. and Andrews, P. W.
(2015) The Evolution of Cognitive Bias, in The Handbook of Evolutionary
Psychology (ed D. M. Buss), John Wiley & Sons, Inc., Hoboken, NJ, USA. [ONLINE]
at
http://web.b.ebscohost.com.proxy.lib.strath.ac.uk/ehost/ebookviewer/ebook/bmxlYmtfXzEzOTY4MV9fQU41?sid=e320f1a8-5207-49bc-ad61-2be1746b3f95@sessionmgr114&vid=0&format=EB&lpid=lp_iii&rid=0 [accessed 2 March 2016]
Hofstede,
G., Neuijen, B., Ohayv, D.D., & Sanders, G. Measuring organizational
cultures: A qualitative and quantitative study across twenty cases. (1990) Administrative Science Quarterly, 35, p.286–316. [ONLINE] at http://www.jstor.org/stable/2393392?loginSuccess=true&seq=1#page_scan_tab_contents
[accessed 13th April 2014]
Irvine C., Robertson R. and Clark B., (2010) Alternative Mechanisms for Resolving
Disputes: A Literature Review Research Report, Health Professionals Council
[ONLINE] at
http://www.hpc-uk.org/assets/documents/10003409alternative_mechanisms_for_resolving_disputes.pdf accessed on the 27th March 2016
Kaufman, Sanda, Michael Elliott and Deborah
Shmueli. "Frames, Framing and Reframing." Beyond Intractability. Eds. Guy Burgess and
Heidi Burgess. Conflict Information Consortium, University of Colorado,
Boulder. Posted: September 2003 [ONLINE] at http://www.beyondintractability.org/essay/framing
[accessed 23 February 2016]
Kochman, Thomas. Black and White Styles of Conflict.
Chicago and London: University of Chicago Press. 1981
Latreille
P., 2011 Workplace Mediation: A Thematic
Review of the Acas/CIPD Evidence Acas Research Paper 13/11 [ONLINE]
http://www.acas.org.uk/media/pdf/h/m/1311_Thematic_review_of_workplace_mediation-accessible-version-Apr-2012.pdf [accessed 13 April 2014]
Latreille
P & Saundry R., 2015 Towards a System
of Workplace Mediation? An Evaluation of the impact of workplace mediation at
Northumbria Healthcare Foundation Trust Acas Research Paper 03/15 [ONLINE]
at http://www.acas.org.uk/media/pdf/5/7/Conflict-management-Northumbria-Healthcare-NHS-Trust.pdf
[accessed 23 March 2016]
LeBaron, Michelle. "Culture and
Conflict." Beyond
Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict
Information Consortium, University of Colorado, Boulder. Posted: July 2003
[ONLINE] at http://www.beyondintractability.org/essay/culture-conflict [accessed 25 February 2016].
LeBaron
M., and Zumeta Z.D., 2003 Windows of
Diversity: Lawyers, Culture and Mediation Practice Conflict Resolution
Quarterly Vol 20 Issue 4 p 462-472
Loredana
Di Pietro & Francesca Di Virgilio (2013) ‘The Role of Organizational
Culture on Informal Conflict Management’, International Journal of Public
Administration, Volume 36 Issue 13 [ONLINE]
http://www.tandfonline.com/doi/full/10.1080/01900692.2012.701150?instName=University+of+Strathclyde [accessed 13 April 2016]
Maiese
M., Neutrality Beyond
Intractability. Eds. Guy
Burgess and Heidi Burgess. Conflict Information Consortium, University of
Colorado, Boulder. Posted: June 2005 [ONLINE] at http://www.beyondintractability.org/essay/neutrality accessed on the 25th March 2016;
Mulcahy L., The
Possibilities and Desirability of Mediator Neutrality: Towards an Ethic of
Partiality? 2001 Social Legal Studies 10, 4, pages 505-527
O’Reilly
C.A., & Chatman J.A., 1996 ‘Culture
as Social Control: Corporations, Cults and Commitment’ Journal of Research
in Organisational Behaviour, Vol 18 p157-200 [ONLINE] at http://faculty.haas.berkeley.edu/chatman/papers/30_cultureassocialcontrol.pdf
[accessed 24 February 2016]
Saundry
R., Adam D., Ashman I., Forde C., Wibberley G., and Wright S., Managing Individual Conflict in the
Contemporary British Workplace, Acas Research Paper 02/16 [ONLINE] http://www.acas.org.uk/media/pdf/c/4/Managing-individual-conflict-in-the-contemporary-british-workplace.pdf
[accessed 26 March 2016]
Saundry
R., Bennett T., and Wibberley G., (2013) Workplace
mediation: the participant experience Acas Research Paper 02/13 [ONLINE] at
http://www.acas.org.uk/media/pdf/t/j/Workplace-mediation-the-participant-experience.pdf
[accessed 26 March 2016]
Saundry
R., McArdle L. and Thomas P., (2011) Transforming
Conflict Management in the Public Sector? Mediation, Trade Unions and
Partnership in a Primary Care Trust, Acas Research Papers 01/11 [ONLINE] at
http://www.acas.org.uk/media/pdf/k/8/Transforming_Conflict_Management_in_the_Public_Sector_-_Mediation_Trade_Unions_and_Partnerships_in_a.pdf [accessed 26 March 2016]
Saundry
R., and Wibberley G., Workplace Dispute
Resolution and the Management of Individual Conflict: A Thematic Analysis of
Five Case Studies ACAS Research Paper 06/14 [ONLINE] at http://www.acas.org.uk/media/pdf/q/a/0614-Workplace-Dispute-Resolution-Thematic-Review.pdf
[accessed 26 March 2016]
Saundry
R., & Wibberley G., Mediation and
Early Resolution: A Case Study in Conflict Management Acas Research Papers
12/12 [ONLINE] at http://www.acas.org.uk/media/pdf/5/c/Mediation-and-Early-Resolution-A-Case-Study-in-Conflict-Management-accessible-version.pdf
accessed on the 21st of March 2016
Scottish
Government, Programme for Government 2015-16 [ONLINE] at http://www.gov.scot/Publications/2015/09/7685/3
accessed on the 20th October 2015
Seargeant
J., The Acas Small Firms Mediation Pilot
– Research to explore parties’ experiences and views on the value of mediation Acas
Research Paper 04/05 [ONLINE]
http://www.acas.org.uk/media/pdf/d/l/Research_Paper_04_05-accessible-version-July-2011.pdf
[accessed 27 March 2016]
Singer, M. R. Intercultural
Communication: A Perceptual Approach. Englewood Cliffs, NJ: Prentice-Hall.
1987
Smith,
I. T., & Baker, A. (2015). Smith
& Wood's employment law. Oxford University Press 2015
Stuart M & Lucion M.M. (eds)
2005 Partnership and Modernisation
Employment Relations 1st Edition, Routledge, Chapter 1 ‘Partnership and Modernisation in Employment
Relations: An Introduction’ pp 1-19
Tannen,
Deborah (ed) (1993) ‘Framing in Discourse’ New York/ London, Oxford University
Press
UK
Government’s ‘Tribunal Statistics Quarterly’ October to December 2013, [ONLINE]
at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/289342/tribunal-stats-oct-dec-2013.pdf
[accessed 22
February 2016]
Wood
S., Saundry R., and Latreille P., Analysis
of the nature, extent and impact of grievance and disciplinary procedures and
workplace mediation using WERS2011 ACAS Research Paper 10/14 [ONLINE] at http://www.acas.org.uk/media/pdf/2/d/1014-WERS2011-analysis-D-and-G-procedures-workplace-mediation.pdf
[accessed 19 March 2016]
Wu
W., Yuen E. & Zhu J.J., (2001) Individualism-collectivism
and Conflict Resolution Styles: A cross-cultural study of managers in Singapore
[ONLINE] at http://www.adr.gov/events/2009/nov19-2009-materials-article.pdf
[accessed 27 March 2016]
Van
Wanrooy, B., Bewley, H., Bryson, A., Forth, J., Freeth, S., Stokes, L., and
Wood, S. (2013) The 2011 Workplace Employment Relations Study: First Findings
at page 27 [Online] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336651/bis-14-1008-WERS-first-findings-report-fourth-edition-july-2014.pdf
[accessed 11 April 2016]
[1]
For example [ONLINE] at
https://scholar.google.co.uk/scholar?q=assessment+of+workplace+mediation+in+the+UK+&btnG=&hl=en&as_sdt=0%2C5&as_ylo=2010&as_yhi=2016&as_vis=1
[accessed 19 January 2016] relative to terms of search ‘Assessment of Workplace
Mediation in the UK’ restricted to a date range 2010-2016, returned 17,100
results.
[2] Gibbons M. (2007) A review of
employment dispute resolution in Great Britain March 2007 DTI ONLINE at http://webarchive.nationalarchives.gov.uk/20090609003228/http://www.berr.gov.uk/files/file38516.pdf
[accessed 23 October 2015]
[3] See for instance: European
Commission. 2004. Proposal for a directive of the European
Parliament and of the Council on certain aspects of mediation in civil and
commercial matters. COM (2004) 718 final. Brussels: European Commission.
[4] CIPD Research Report March 2015,
‘Conflict Management: A Shift in Direction’ ONLINE at http://www.cipd.co.uk/binaries/conflict-management-shift-direction.pdf
[accessed 26 October 2015]
[5] Davey, B and Dix, G (2011) The Dispute Regulations Two Years On: the
ACAS Experience p.3. ONLINE at http://www.acas.org.uk/media/pdf/6/6/The-Dispute-Resolution-Regulations-two-years-on-the-Acas-experience-accessible-version-December-2011.pdf
[accessed 7 September 2015]
[6] Ibid 2 above.
[7] Ibid 1 at page 38.
[8] For a definition of ‘the Third
Way’: “at its most basic the Third
Way is something different and distinct from liberal capitalism with its unswerving
belief in the merits of the free market and democratic socialism with its
demand management and obsession with the state. The Third Way is in favour of
growth, entrepreneurship, enterprise and wealth creation but it is also in
favour of greater social justice and it sees the state playing a major role in
bringing this about.” ONLINE at: http://news.bbc.co.uk/1/hi/458626.stm
[accessed 7 September 2015]
[9] Mark Stuart & Miguel Martinez
Lucion (eds) 2005 Partnership and
Modernisation Employment Relations 1st Edition, Routledge,
Chapter 1 ‘Partnership and Modernisation in Employment Relations: An
Introduction’ pp 1-19
[10] Brown, William (2011) Industrial Relations in Britain Under New
Labour 1997-2010: A Post-mortem ONLINE at http://www.econ.cam.ac.uk/dae/repec/cam/pdf/cwpe1121.pdf
[accessed 7 September 2015]
[11] In particular, see the REDRESS
(Resolve Employment Disputes Reach Equitable Solutions Swiftly) program which
was initiated by the United States Postal Service in 1994 ONLINE at https://about.usps.com/what-we-are-doing/redress/about.htm
[accessed 9 September 2015]
[12] Ibid 1 above at page 5.
[13] Ibid 1 above at page 9.
[14] Ibid 1 above at page 9; for a
study of the NZ and UK workplace mediation situations see also Corby, S.
(1999). Resolving employment rights disputes through mediation: the New
Zealand experience, London: Institute of Employment Rights
[15] BIS (2012) [ONLINE] at https://www.gov.uk/government/news/regional-mediation-pilot-schemes-up-and-running
[accessed 26 February 2016]
[16] See the announcement by the
Federation of Small Businesses: [ONLINE] at http://www.fsb.org.uk/media-centre/press-releases/fsb-welcomes-launch-of-new-regional-body-for-business-mediation-in-greater-manchester-fsb-pr-2014-02
[accessed 26 February 2016]
[17] Employment Tribunals and
Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 [ONLINE] at
http://www.legislation.gov.uk/uksi/2013/1893/contents/made [accessed 19 October
2015]
[19] The Terms of Reference for this
review can be found [ONLINE] at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/434207/tor-employment-tribunal-fees.pdf
[accessed 21 October 2015]
[20] UNISON Press Release 26th
February 2016 [ONLINE] https://www.unison.org.uk/news/press-release/2016/02/unisons-battle-to-scrap-employment-tribunal-fees-set-to-continue/
[accessed 12 April 2016]
[21] Matthew Downer, Carrie Harding,
Shadi Ghezelayagh, Emily Fu and Marina Gkiza: ACAS Research Paper: Evaluation
of ACAS Early Conciliation 2015 Ref: 04/15 [ONLINE] at http://www.acas.org.uk/media/pdf/5/4/Evaluation-of-Acas-Early-Conciliation-2015.pdf
[accessed 20 October 2015]
[22] Ibid 16 above at page 8
[23] Scottish Government, Programme for
Government 2015-16 [ONLINE] at http://www.gov.scot/Publications/2015/09/7685/3
[accessed 20 October 2015]
[24]
UK Government’s ‘Tribunal Statistics Quarterly’ October to December
2013, [ONLINE] at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/289342/tribunal-stats-oct-dec-2013.pdf
[accessed 22 February 2016]
[25] See for instance, the
Thomas-Kilmann Conflict Mode Instrument which is a tool designed to measure
behaviour in a situation: ONLINE at http://www.kilmanndiagnostics.com/overview-thomas-kilmann-conflict-mode-instrument-tki
[accessed 23 February 2016]
[26] Hofstede, G., Neuijen, B., Ohayv,
D.D., & Sanders, G. (1990). Measuring organizational cultures: A
qualitative and quantitative study across twenty cases. Administrative Science
Quarterly, 35, 286–316.
[27] Berger P.L and Luckmann T. ‘The
Social Construction of Reality: A Treatise in the Sociology of Knowledge’
reprinted in Penguin Books 1991
[28]
Berger P.L., ‘The Sacred Canopy: Elements of a Sociological Theory of Religion’
Garden City, N.Y., Doubleday, 1967
[29]
O’Reilly C.A., & Chatman J.A., 1996 ‘Culture as Social Control:
Corporations, Cults and Commitment’ Journal of Research in Organisational
Behaviour, Vol 18 p157-200 ONLINE at http://faculty.haas.berkeley.edu/chatman/papers/30_cultureassocialcontrol.pdf
[accessed 24 February 2016]
[30]
Loredana Di Pietro & Francesca Di Virgilio (2013) ‘The Role of
Organizational Culture on Informal Conflict Management’, International Journal
of Public Administration, 36:13, 910-921,
ONLINE
at http://www.tandfonline.com/doi/pdf/10.1080/01900692.2012.701150
[Accessed 23 February 2016]
[31] ACAS ‘Code of Practice on
Grievance and Disciplinary Procedures’ March 2015, ONLINE at
http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf
[accessed 22 February 2016].
[32] Kaufman, Sanda, Michael Elliott and Deborah Shmueli.
"Frames, Framing and Reframing." Beyond
Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information
Consortium, University of Colorado, Boulder. Posted: September 2003 [ONLINE] at http://www.beyondintractability.org/essay/framing
[accessed 23 February 2016]
[33]
Seargeant J., The Acas Small Firms
Mediation Pilot – Research to explore parties’ experiences and views on the
value of mediation [ONLINE] http://www.acas.org.uk/media/pdf/d/l/Research_Paper_04_05-accessible-version-July-2011.pdf
[accessed 27 March 2016]
[34] ACAS 2013 Mediation: An Approach to Resolving Workplace Issues [ONLINE] at http://www.acas.org.uk/media/pdf/2/q/Mediation-an-approach-to-resolving-workplace-issues.pdf
[accessed 25th March 2016]
[35] Dolder C., 2004 ‘The Contribution of Mediation to Workplace
Justice’ Industrial Law
Journal 33 (4) pages 320–342 ONLINE at http://ilj.oxfordjournals.org/content/33/4/320.full.pdf+html first
accessed on the 25th February 2016 and for a useful summary of
mediation styles see also section 1.3 in the research report prepared for the
Health Professionals Council: Irvine C., Robertson R. and Clark B., (2010) Alternative Mechanisms for Resolving
Disputes: A Literature Review Research Report [ONLINE] at
http://www.hpc-uk.org/assets/documents/10003409alternative_mechanisms_for_resolving_disputes.pdf [accessed 27 March 2016]
[36] The impartiality of the mediator is
recognised by the writer to be a source of controversy – with vigorous argument
and debate surrounding whether impartiality is actually possible. Please see
for instance i) Coben L., Mediation’s
Dirty Little Secret: Straight Talk about Mediator Manipulation and Deception
2000, 2 Journal of Alternative Dispute Resolution 4; ii) Maiese M., Neutrality Beyond
Intractability. Eds. Guy
Burgess and Heidi Burgess. Conflict Information Consortium, University of
Colorado, Boulder. Posted: June 2005 [ONLINE] at http://www.beyondintractability.org/essay/neutrality [accessed 25 March 2016]; iii) Mulcahy
L., The Possibilities and Desirability of
Mediator Neutrality: Towards an Ethic of Partiality? 2001 Social Legal
Studies 10, 4, pages 505-527
[37] Fisher R., Ury W., & Patton
B., (1991) ‘Getting to Yes: negotiating
an agreement without giving in’ New York N.Y., Penguin Books 18th
Edn
[38] For an in-depth analysis of
‘framing’ in discourse please see: Tannen, Deborah (Ed). 1993 ‘Framing in
Discourse’ New York: London, Oxford University Press
[39]
Bollen K., Euwema M., 2013 ‘Workplace Mediation: An Underdeveloped Research
Area’ Negotiation Journal Vol 29, Issue 3, pages 329-353 ONLINE at http://onlinelibrary.wiley.com/doi/10.1111/nejo.12028/full
[accessed 25 February 2016
[40]
Ibid as 34 above at pages 340-342
[41]
See the following study for an interesting analysis of how national culture,
organisational culture, and managerial factors influence conflict resolution
styles in multicultural Singapore: Wu W., Yuen E. & Zhu J.J., (2001) Individualism-collectivism and Conflict
Resolution Styles: A cross-cultural study of managers in Singapore [ONLINE]
at http://www.adr.gov/events/2009/nov19-2009-materials-article.pdf
[accessed 27 March 2016]
[42] LeBaron, Michelle. "Culture and Conflict." Beyond Intractability. Eds.
Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of
Colorado, Boulder. Posted: July 2003 [ONLINE] at http://www.beyondintractability.org/essay/culture-conflict [accessed 25 February 2016].
[43] Details for the USPS mediation
program, REDRESS can be found [ONLINE] at
https://about.usps.com/what-we-are-doing/redress/welcome.htm [accessed 25 February 2016]
[44] For example: i) Kochman, Thomas. Black and White Styles of Conflict.
Chicago and London: University of Chicago Press. 1981; ii) Singer, M. R. Intercultural Communication: A
Perceptual Approach. Englewood Cliffs, NJ: Prentice-Hall. 1987; iii)
Savage, C. "Culture and Mediation: A Red Herring." American University Journal of Gender and the
Law. 5: 269-293. 1996; iv) Lebaron M., and Zumeta Z.D., 2003 Windows of Diversity: Lawyers, Culture and
Mediation Practice Conflict Resolution Quarterly Vol 20 Issue 4 p 462-472;
v) Davidheiser, Mark.
"Mediation and Multiculturalism: Domestic and International
Challenges." Beyond
Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information
Consortium, University of Colorado, Boulder. Posted: January 2005 [ONLINE] at http://www.beyondintractability.org/essay/mediation-multiculturalism [accessed 26 March 2016]
[45] See for instance Australia’s
‘National Mediator Accreditation System’: http://www.msb.org.au/mediator-standards/national-mediator-accreditation-system-nmas
[46] See ONLINE here: https://imimediation.org/intercultural-certification-criteria
[accessed 25 February 2016]
[47] Saundry R., Bennett T., and
Wibberley G., (2013) Workplace mediation:
the participant experience Acas Research Paper 02/13 [ONLINE] at http://www.acas.org.uk/media/pdf/t/j/Workplace-mediation-the-participant-experience.pdf
[accessed 26 March 2016]
[48] Saundry R., & Wibberley G., Mediation and Early Resolution: A Case Study
in Conflict Management Acas Research Papers 12/12 [ONLINE] at http://www.acas.org.uk/media/pdf/5/c/Mediation-and-Early-Resolution-A-Case-Study-in-Conflict-Management-accessible-version.pdf
[accessed 21st of March 2016]
[49] Saundry R., McArdle L. and Thomas
P., (2011) Transforming Conflict
Management in the Public Sector? Mediation, Trade Unions and Partnership in a
Primary Care Trust, Acas Research Papers 01/11 [ONLINE] at http://www.acas.org.uk/media/pdf/k/8/Transforming_Conflict_Management_in_the_Public_Sector_-_Mediation_Trade_Unions_and_Partnerships_in_a.pdf
[accessed 26 March 2016]
[50] Seargeant J., The Acas Small Firms Mediation Pilot – Research to explore parties’
experiences and views on the value of mediation [ONLINE] http://www.acas.org.uk/media/pdf/d/l/Research_Paper_04_05-accessible-version-July-2011.pdf
[accessed 27 March 2016]
[51] Saundry R., Adam D., Ashman I.,
Forde C., Wibberley G., and Wright S., Managing
Individual Conflict in the Contemporary British Workplace, Acas Research
Paper 02/16 [ONLINE] http://www.acas.org.uk/media/pdf/c/4/Managing-individual-conflict-in-the-contemporary-british-workplace.pdf
[accessed 26 March 2016]
[52] Latreille P & Saundry R.,
(2015) Towards a System of Workplace
Mediation? An Evaluation of the impact of workplace mediation at Northumbria
Healthcare Foundation Trust Acas Research Paper 03/15 [ONLINE] at http://www.acas.org.uk/media/pdf/5/7/Conflict-management-Northumbria-Healthcare-NHS-Trust.pdf
[accessed 23 March 2016]
[53]Wood
S., Saundry R., and Latreille P., Analysis
of the nature, extent and impact of grievance and disciplinary procedures and
workplace mediation using WERS2011 ACAS Research Paper 10/14 [ONLINE] at http://www.acas.org.uk/media/pdf/2/d/1014-WERS2011-analysis-D-and-G-procedures-workplace-mediation.pdf
[accessed 19 March 2016]
[54] Broughton A., Ledermaier S. and Cox
A., (2014) An evaluation of the impact of
the internal workplace mediation training service Acas Research Paper 07/14 [ONLINE] at http://www.acas.org.uk/media/pdf/8/b/0714-CIWM-impact-evaluation.pdf
[accessed 27 of March 2016]
[55]
Saundry R., and Wibberley G., Workplace
Dispute Resolution and the Management of Individual Conflict: A Thematic
Analysis of Five Case Studies ACAS Research Paper 06/14 [ONLINE] at http://www.acas.org.uk/media/pdf/q/a/0614-Workplace-Dispute-Resolution-Thematic-Review.pdf
[accessed 26 March 2016]
[56] Acas Individual Mediation 2011/2012: Responses from Participants and
Commissioners. ACAS Research and Evaluation Section September 2012 [ONLINE]
http://www.acas.org.uk/media/pdf/8/o/Acas-Individual-Mediation-Report-2011-12-acccessible-version.pdf
[accessed 21March 2016
[57] Saundry R., & Wibberley G., Managing Individual Conflict in the Private
Sector: A Case Study [ONLINE] at http://www.acas.org.uk/media/pdf/6/b/0512_Managing_individual_conflict_in_the_private_sector-accessible-version-Mar-12.pdf
[accessed 21st March 2016]
[58] Latreille P., Buscha F. and Conte
A., (2010) Are you experienced? SME use
of and attitudes towards workplace mediation, Acas research Paper 05/10 [ONLINE]
at
http://www.acas.org.uk/media/pdf/5/f/SME_attitudes_towards_workplace_mediation-accessible-version-may-2012.pdf
and also The International Journal of Human Resource Management, Volume 23:3
(590-606) [ONLINE] at
http://www.tandfonline.com/doi/pdf/10.1080/09585192.2012.641082?instName=University+of+Strathclyde both [accessed 6 April 2016]
[59] Johnston T., Knowledge and use of mediation in SMEs [ONLINE] at http://www.acas.org.uk/media/pdf/m/e/research-paper-02-08-SME-mediation-report-accessible-version-July-2011.pdf
[accessed 20 March 2016]
[60] Harris, L., Tuckman, A., Snook,
J., Tailby, S., Hutchinson, S., and Winters, J. Small Firms and Workplace Disputes Resolution Acas Research Papers
01/08 [ONLINE] at http://www.acas.org.uk/media/pdf/q/9/Acas_0108_Small_firms_workplace_disputes-accessible-version-July-2011.pdf
[accessed 21 March 2016]
[61] CIPD Survey Report Feb 2007 Managing Conflict at Work [ONLINE] at http://www.cipd.co.uk/binaries/manconflwrk.pdf
[accessed 7 April 2016]
[62] CHARTERED INSTITUTE OF PERSONNEL
AND DEVELOPMENT. (2007) Managing conflict
at work [online]. Survey Report London: CIPD. [ONLINE] at
http://www.angelproductions.co.uk/pdfs/workplacemediation.pdf
[accessed 24 February 2016]
[63] The guidance (Mediation: An Approach to Resolving Workplace Issues) can be found
at http://www.cipd.co.uk/binaries/mediation-an-approach-to-resolving-workplace-issues_2013.pdf
[ONLINE] [accessed 7th April 2016] – case studies are contained
within this guidance and used to illustrate workplace realities of using
mediation.
[64] Latreille P., 2011 Workplace Mediation: A Thematic Review of
the Acas/CIPD Evidence Acas Research Paper No 13/11
[65] For further details please visit:
http://www.acas.org.uk/index.aspx?articleid=1680
[66] Google search conducted on the 27th
March 2016 with search terms ‘mediation case studies UK’ returned over 790,000
results, the first page of which were links to private training providers using
‘case studies’ to illustrate the value of their service i.e. www.effectivedisputesolutions.co.uk/mediation-case-studies; www.essexmediation.co.uk/case-studies/; www.dispute-mediation.co.uk/typical_case_studies.aspx and
Workplace Mediation and Conflict
Resolution Survey produced by Globis Mediation Group [ONLINE] at http://www.globis.co.uk/news/wp-content/uploads/GLOBIS-Workplace-Mediation-Survey-Report-FINAL.pdf
[accessed 27 March 2016]
[67]
Ibid at 52 above
[68]
Ibid 49 above at page 28
[69]
Ibid 52 above at page 4
[70]
Ibid 52 above at page 18
[71]
Ibid 49 above at page 17
[72]
Consensio Partners can be found at http://www.consensiopartners.co.uk/
[73]
‘Partnership Working Research Report: Social and Economic Partnership Project’
Chapter 2 [ONLINE] at http://www.gov.scot/Publications/2004/03/19044/34227
[accessed 27 March 2016]
[74]
Ibid 58 above within section 6 of the Report.
[75] A
summary of the skills generally held to be essential for the mediator can be
found here: http://www.skillsyouneed.com/ips/mediation-skills.html
[76]
Social Partnership Forum [ONLINE] at http://www.socialpartnershipforum.org/case-studies/
[accessed 27 March 2016]
[78] Breaking Tradition – A New Approach to
Handling Disciplinaries – University Hospital Birmingham NHS Foundation Trust [ONLINE]
at http://www.socialpartnershipforum.org/case-studies/breaking-tradition-a-new-approach-to-handling-disciplinaries-university-hospital-birmingham-nhs-foundation-trust/
[accessed 27 March 2016]
[79]
Ibid at 48 above – ‘QualCo’ is an assumed name designed to protect the
anonymity of the study subject
[80]
Ibid 48 above at page 36
[81]
Ibid 49 above at page 33
[82]
Ibid footnote 50 above – please note Seargeant appears to have erred in
calculating either total number of mediations or individual numbers of
facilitative or directive mediation – the quote is taken from the paper at page
1 (Introduction) – later at page 2 the author refers to ‘thirteen’ facilitative
mediations.
[83]
Ibid 50 above at page 33
[84]
Ibid 50 at page 29
[85]
Ibid footnote 60
[86]
Corby S., Resolving Employment Rights
through Mediation: The New Zealand Experience (London:Institute of
Employment Rights, 1999)
[87]
Dolder C., (2004) The Contribution of
Mediation to Workplace Justice Industrial Law Journal 33:4 (320-342)
[89]
It is useful to consider Daniel Dana’s (self-defined) ‘first published
treatment of self-help mediation tools for the workplace’ Conflict Resolution – a book which eventually describes how you can
‘mediate’ yourself (‘preventive mediation as an “on-line intervention”’). Dana
D., 2001 Conflict Resolution: Mediation
Tools for Everyday Worklife McGraw-Hill Companies e-book Available [ONLINE]
at https://www.dawsonera.com/readonline/9780071399678
[accessed 10 April 2016]
[90]
Ibid footnote 54 at page
[91]
Ibid footnote 87 above, Chapter 7 pages 112 - 137
[92]
Eg Latreille et al, 2010 - first paragraph of the Introduction refers to
‘potential savings’ offered by mediation.
[93]
Antcliff A., 2013 Use of Mediation by
SMEs in Great Britain Conference Paper [ONLINE] available at http://www2.mmu.ac.uk/media/mmuacuk/content/documents/carpe/2013-conference/papers/social-innovation/ValerieAntcliff.pdf
[accessed 2 March 2016]
[94] Coke, Tania. 2011 ‘Success and
sustainability in mediation’ [ONLINE] at http://www.hrmagazine.co.uk/article-details/success-and-sustainability-in-mediation
[accessed 29 February 2016]
[95] For a fascinating account of
cognitive bias see Haselton, M. G.,
Nettle, D. and Andrews, P. W. (2015) The Evolution of Cognitive Bias, in The
Handbook of Evolutionary Psychology (ed D. M. Buss), John Wiley & Sons,
Inc., Hoboken, NJ, USA. [ONLINE] at
[96] Baldwin S., 2006 Organisational Justice Institute for
Employment Studies [ONLINE] at http://www.employment-studies.co.uk/system/files/resources/files/mp73.pdf
[accessed 11 April 2016]
[97]There is an interesting article
which proposes and tests a 6-factor model – to accommodate the ‘multiple and
divergent directions of interaction’ of workplace mediation (specifically
referring to REDRESS):
Lisa Blomgren Bingham, David H. Good, (2007)
"Organizational justice and workplace mediation: a six‐factor model", International Journal of Conflict
Management, Vol. 18 Iss: 2, pp.148 – 174
[ONLINE] at http://www.emeraldinsight.com/doi/full/10.1108/10444060710759354
[accessed 12 April 2016]
[98][ONLINE] available at http://www.acas.org.uk/media/pdf/2/q/Mediation-an-approach-to-resolving-workplace-issues.pdf
[accessed 25 February 2016]
[99]
van Wanrooy, B., Bewley, H., Bryson, A., Forth, J., Freeth, S., Stokes, L., and
Wood, S. (2013) The 2011 Workplace Employment Relations Study: First Findings
at page 27 [Online] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/336651/bis-14-1008-WERS-first-findings-report-fourth-edition-july-2014.pdf
[accessed 11 April 2016]
[100]
This is lifted from a draft paper prepared and published by Branney V., Grievance Procedures and Workplace
Mediation: The case for peaceful Coexistence 2013 [ONLINE] at https://www.uclan.ac.uk/research/explore/groups/assets/virginia_review_of_series.pdf
[accessed 6 April 2016]
[101]
Ibid footnote 52: whilst 90% of cases referred to mediation were successfully
resolved the poor mediation evaluation return (22%) does not allow any secure
finding that participants were ‘satisfied’.
