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
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 organizations 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 attorneys 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
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
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
Beer, J. E., & Stief, E. (1997). The mediators 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:
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.
Vol. 36/No. 3
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