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Resolving Conflict Within the Organization: Creating "Win-Win" Solutions With Mediation

Robert S. Done
University of Arizona

The choice of litigation to resolve conflict has added to court dockets some cases that might be more effectively resolved on an informal basis. In cases of intra-organizational conflict, both the disputants and the organization may benefit from effective dispute resolution that is faster than the litigation process. The purpose of this article is to provide an overview of mediation and its usefulness as a mechanism for conflict resolution in organizations. Following a review of the conceptual and practical differences between mediation and litigation as well as other forms of alternative dispute resolution (ADR), I will discuss mediation in organizations and the relationship between mediation and the law. Finally, I will discuss the benefits of mediation and its applicability in cases of discrimination such as sexual harassment.

 

 

Conflict Resolution Within Organizations

Although litigation is a common mechanism for dispute resolution in our society, forms of alternative dispute resolution exist. Litigation involves a judge and possibly a jury who will determine the resolution of a dispute based on the law and information provided by the disputants. This information is typically presented by attorneys who advocate for their clients’ positions, often to the detriment of the opponent. The admissibility of evidence is guided by formal rules and expert witnesses may testify about relevant issues. The litigation process is typically lengthy, expensive, and inconvenient. Judgements of the court can be appealed, drawing the process out even farther.

Aside from litigation, forms of ADR include arbitration, mediation, and conciliation. Arbitration is much like litigation in that a neutral arbitrator hears evidence presented by the disputants and concludes with a binding resolution. Disputants are often represented by attorneys at arbitration meetings, which are attended by all parties. Unlike litigation, arbitration is not open to the public and is a much faster process. In arbitration, the disputants also have the ability to choose the neutral(s) who will hear their case. Although attorneys often represent their clients in arbitrations, the overall cost of representation can be less because the arbitration process is generally much faster than litigation.

Mediation is similar to arbitration in that the mediator is selected by the disputants to act as a neutral party and listen to the disputants. Beyond that, mediation is dissimilar to arbitration in many ways. Mediation is generally an informal process in which evidence and witnesses are not usually introduced. Disputants must also consent to the mediation and can meet with the mediator on either a joint or caucus basis. Not only is a mediation generally limited to only the disputants, but the information presented by the disputants is also confidential. This represents a key difference from arbitration where the process is private but the information is not necessarily confidential. And perhaps most importantly, disputants in a mediation retain the power to resolve their differences; the mediator merely facilitates the resolution.

Finally, conciliation is like mediation in that a neutral party facilitates communication between the disputants to resolve a conflict. Conciliation can be most useful to break the deadlock that can arise between disputants who are unable to see past their frustration or anger to resolve their differences. Once the deadlock is broken, an environment hospitable to meaningful dialogue can be created. Unlike mediation, conciliators meet with the disputants individually to alleviate tension and identify issues (Leviton and Greenstone, 1996).

Clearly, the ladder of dispute resolution mechanisms is anchored at the bottom by conciliation and at the top by litigation. Mediation and arbitration, respectively, provide intermediate levels of structure for dispute resolution. People in organizations who have disagreements can enter the dispute resolution ladder at any rung and may advance upward if they are unsuccessful and resolving their differences at their current level. However, mediation represents a middle ground of control and structure where individuals in organizations can most productively resolve their conflicts with each other or with the organization itself.

 

 

Mediation in Organizations

Mediation is often used in civil and family law matters as an alternative or precursor to litigation. Contract disputes and child custody disagreements are commonly resolved by mediation. However, mediation can also be used by organizations to achieve a "win-win" outcome when members have conflicts with each other or with the organization itself. Instances of employee backstabbing, hiring and promotion disputes, and even discrimination can benefit from mediation in the organization.

Certain conditions must exist for mediation to be an appropriate alternative. First, a conflict must exist between at least two parties. Second, the parties must willing to achieve a resolution to the dispute based on consensus. Third, the parties must agree on the mediator(s) who will act as the neutral facilitator in the resolution process. Slaikeu (1996) observes that trust is another essential condition for a successful mediation. Disputants may not trust one another but it is not necessary that they do. However, the disputants must trust the mediator to be impartial and the mediation process to be a viable solution to the dispute.

The expectations of the disputants can determine whether or not mediation is an appropriate alternative for dispute resolution. The disputants must be ready, willing, and able to resolve their differences with the assistance of the mediator. Individuals who are not ready to settle their differences and are using mediation to avoid settlement are not suited for mediation. Individuals who are not willing to settle the conflict themselves and are expecting the mediator to adjudicate the disagreement are not suited for mediation. Individuals who are not able to resolve their differences and cannot negotiate in good faith are not suited for mediation. Only those disputants who want to resolve their differences and are capable of doing so are appropriate for mediation.

The issues in dispute must also be appropriate for mediation. Issues between supervisors and subordinates such as performance appraisals, delegation of responsibility and authority, and promotions are all appropriate for mediation. Between coworkers, issues such as workload distribution, cooperation, and gossiping are issues that can be successfully resolved through mediation. Discrimination and equal employment opportunity issues across all levels of the organization may also be appropriate. Generally, most organizational issues of a noncriminal nature can benefit from mediation.

There are several basic steps in the mediation process. Slaikeu (1996) identifies a model containing five phases. During the first contact phase, the mediator provides the disputants with information about the mediation process and obtains summaries of the conflict from the disputants. If the disputants want to pursue mediation, an agreement to begin mediation is drafted. The second phase is the opening meeting. At the opening meeting the mediator can reiterate the elements and guidelines for the mediation process, allow the disputants to make opening statements summarizing their issues and goals for the mediation, and adjourn the meeting as a transition to the next phase. The next step for the mediator is to conduct caucuses, meetings with the disputants on an individual basis. During the caucus sessions the mediator should review the confidential nature of their statements and elicit the key interests and other information that should be represented in the resolution. The next phase, joint (or shuttle) meetings, represents an extension of the caucus phase where the disputants communicate directly with one another (or through the mediator) to achieve a consensual resolution. Finally, in the closing phase, the agreement is reviewed for accuracy and completeness, reduced to a written document if necessary, and the mediation is concluded. Of course, at any point some or all of the disputants may withdraw from the mediation, refuse to participate, or seek alternative venues (e.g., court).

Mediators in organizations are often referred to as ombudspersons. Large organizations may staff one or more full-time positions responsible for mediation. In addition or as an alternative to full-time ombudspersons, organizations may designate departmental contacts who can assist with dispute resolution in addition to their regular duties. Those responsible for dispute resolution typically receive some formal instruction on the mediation process and may attend relevant conferences. Ideally, an ombudsperson is high enough in the organizational hierarchy that they are perceived to have some influence but is not so high that they are perceived to represent the organization’s interests.

 

 

Mediation and the Law

Mediation might be seen by legal professionals as an encroachment on their domain. And indeed, mediation has a unique relationship with the law, but one that is mutually beneficial. Many legal professionals have come to recognize mediation as a way to ease the burden on the court docket as well as to resolve disputes. Some jurisdictions (e.g., California) even provide special privileges of confidentiality to mediators.

Confidentiality is important for a successful mediation. Disputants are more likely to be open and forthcoming in caucus and joint meetings if they can be assured that their statements will remain confidential. Not only should the information revealed in a mediation be confidential, but so should the identities of the disputants (Beer and Stief, 1997). The mediation guidelines should include an agreement that the parties will not involve the mediator in any subsequent litigation (Slaikeu, 1996). Nevertheless, information regarding criminal behavior cannot remain confidential and this caveat should be understood by all parties.

California Evidence Code, Div. 9, Ch. 2, directly addresses guarantees of confidentiality in mediation. Under this law, all statements, documents, and communications that are part of a mediation are inadmissible in noncriminal proceedings. This rare privilege against discovery is similar to that protecting attorney/client and physician/patient relationships. Moreover, the written settlement agreement is also confidential unless the parties agree that it is enforceable or there is an underlying defect (e.g., fraud or duress). The law also provides that mediators are entitled to reasonable attorney’s fees and costs in the protection of inadmissible mediation information. Even reference to a mediation during subsequent litigation may be grounds for a new trial. Exception to the general inadmissibility of mediation information in noncriminal cases is granted if all of the parties, including the mediator, agree to the disclosure.

The California courts have upheld the importance of confidentiality and enforceability of mediation. In 1995, the California Court of Appeals refused to hear the case of Meg Garstang who sued the California Institute of Technology (her employer) and three co-workers for slander and intentional infliction of emotional distress. Ms. Garstang was hired by Caltech in 1989 and after a series of promotions alleged that the co-workers were spreading rumors that she had traded sex for advancement. The issue was not successfully resolved by the Caltech ombudsman and Ms. Garstang attempted to compel disclosure of statements made in mediation at her civil trial. The superior court refused to compel the disclosure and the California Court of Appeals refused to hear the appeal of that decision (Garstang v. California Institute of Technology, 1995).

In 1996, the California Court of Appeals affirmed the decision of a lower court to enforce the provisions of a written, binding mediation settlement. Burnet Sumner entered into mediation with the University of California, Oakland, and other individuals to resolve her complaints of sexual harassment. The mediation was successfully concluded after 2 days and a detailed agreement was dictated on tape for transcription. However, shortly thereafter Ms. Sumner refused to agree with the terms of the settlement and the University of California initiated legal action in superior court to enforce the agreement. The superior court upheld the enforcement of the mediation agreement as did the California Court of Appeals (Regents of University of California v. Sumner, 1996).

 

 

Benefits of Mediation

Mediation has many benefits for the disputants and the organization. Mediation allows the disputants to maintain control over the resolution and create a "win-win" solution with which all parties can live. Rather than allowing someone else to impose judgement, all parties can have their interests reflected in the agreement. Mediation also allows the organization to maintain a productive environment for employees and minimize unnecessary litigation. Instead of an atmosphere permeated with conflict and fear, parties can work together and productively.

Beyond allowing disputants the opportunity to vent and reconcile, mediation woven into an organizational anti-harassment policy may satisfy the elements of an affirmative defense to allegations of sexual harassment as outlined by the U.S. Supreme Court. In both Burlington Industries, Inc. v. Ellerth, (1998) and Faragher v. City of Boca Raton, (1998), the U.S. Supreme Court indicated that organizations may raise an affirmative defense if no employment action (e.g., discharge or demotion) is taken against the victim. The affirmative defense requires that the employer attempt to prevent and correct sexually harassing behavior and that the employee failed to utilize the preventative and corrective efforts of the employer. Ironically, the affirmative defense was not advanced by either organization but only recognized by the Court in the wake of the allegations in each case.

Mediation can be especially useful when anything you say can and will be used against you in a court of law. Although mediation may not be appropriate for all cases of sexual harassment, in some instances the victim may prefer validation and a work environment free from discrimination rather than vindication and protracted litigation. However, the recognition of and apology for the harassing behavior are likely to be essential in the validation process. Vague and noncommittal statements by the accused that circumvent the issue may prove to be deleterious. Yet direct statements of culpability may create liability for both the accused and the organization. Rather than remain in a gridlock, mediation may provide a venue where confidential apologies can be offered without fear of future penalty and confidential agreements (if needed) can be constructed. Thus, mediation offers the confidentiality and enforceability that may satisfy all parties.

Various organizations exist that may provide additional information on mediation. The Society of Professionals in Dispute Resolution (SPIDR) develops and maintains standards for ethics and practice in alternative dispute resolution. In addition to general support of ADR, SPIDR has developed a special set of guidelines for resolving disputes in the workplace. The Ombudsman Association has also developed standards of practice and codes of ethics that focus on confidential dispute resolution. These organizations may provide information useful in developing a successful organizational mediation program.

 

 

References

Beer, J. E., & Stief, E. (1997). The mediator’s handbook. Gabriola Island, BC: New Society Publishers.
Burlington Industries, Inc. v. Ellerth, WL 336326 (U.S.Ill. 1998).
Faragher v. City of Boca Raton, WL 336322 (U.S. 1998).
Garstang v. California Institute of Technology, 46 Cal.Rptr.2d 84 (1995).
Leviton, S. C., & Greenstone, J. L. (1997). Elements of mediation. New York: Brooks/Cole Publishing.
Regents of University of California v. Sumner, 50 Cal.Rptr.2d 200 (1996).
Slaikeu, K. A. (1996). When push comes to shove: A practical guide to mediating disputes. San Francisco: Jossey-Bass Publishers.


TIP

Vol. 36/No. 3  January, 1999


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