Workplace mediation and better employment relationships: a false start?

1. Workplace mediation and better employment relationships: a false start? Dr Ria Deakin, Roger Walden and Professor Helge Hoel Manchester Business School RDW conference, July 2015 Contact: ria.deakin@mbs.ac.uk

2. Overview • Background • Methods • Findings • Conclusion

3. Background • Reducing burden on employers and tax payer by reducing number of Employment Tribunal claims: encouraging a greater use of alternative dispute resolution methods. • Emphasis on: - early intervention - within the workplace - cooperative, rather than adversarial? - preservation of employment relationship E.g. Workplace mediation: encourage cultural transformation and development of ‘high trust’ relationships.

4. “Taken together, the measures that we intend to take will support the work the Government is doing to deliver a flexible, effective and fair labour market, where employers and workers are informed and empowered and able to sit down and discuss issues with each other” (BIS, 2011:5)

5. Workplace mediation • Different models and types (internal and external) • Focus on facilitative: voluntary, confidential, informal process facilitated by a neutral third party where two (or more) parties in a dispute seek a mutually agreeable outcome. • Facilitative but with transformative goals, • Relationships and associated power dynamics are complex: • Parties and employer • Parties • Mediator and parties • Mediator and employer • Protection?

6. Current environment • Use of workplace mediation not particularly high, although signs of growth. • Supply of trained mediators outstrips demand for mediation (externally and internally): competitive market. • Empirical research limited, often case studies and more focused on experiences in organisations with internal workplace mediation schemes. • Testimonials of success on provider websites but limited empirical basis for transformation of culture – indications of success only where high trust relationships already exist.

7. Method • 20 semi-structured interviews with external workplace mediators: • As providers of workplace mediation services (including training and development of internal mediation schemes) they are responsible for both the generation of rhetoric around mediation and the extent to which this may be realised in reality. • Greater experience of mediation • Exposure to multiple organisations

8. Better relationships? • Mediation as a process has the potential but in practice can be problematic: “mediation sounds lovely, and obviously its intention is benign and really quite transformative, but it’s like any tool in the wrong hands or unskilled hands…” • Limited by: • Pre-existing organisational attitudes towards workers and commercial realities. • Employer and mediator use and misuse of workplace mediation.

9. Dynamics and influence of employer-mediator relationship • Employer usually pays for mediation: mediators want work. • Product is market-driven but most effective product not necessarily what is sold. • Employer attitude towards mediation: used as a shield, rather than developmental/opportunity to develop the employment relationship (through improved culture). “The problem, I guess, is where you have organisations who aren’t really conflict savvy. They just use mediation as a, “oh blimey we can’t deal with this one, let’s just send it off to the mediators and they can sort it out”. But they’re not a very conflict aware organisation, and it’s much more of a tick box thing, and maybe making sure they’re doing what they need to do in case it goes further and they have to show they’ve been a good employer. So yeah, mediation has massive potential to influence organisations culturally but those organisations, I suppose, need to be open to the influence.”

10. Better for some but not all. If dispute is between two employees, the employer may prioritise one employee over the other: “I’ve seen bullying and [sexual] harassment at work [in a HR role] where a complicating issue is, I mean it’s not only the power imbalance in the situation, it’s also the power imbalance in terms of the position that the alleged perpetrator feels they have to protect, or indeed the increased value the organisation perceives they have against a victim who is less important…it means that there can be all the policies in the world, and all the procedures in the world, and everybody can try very hard to make those work and make a mediation work, but in the end, you’ve got someone who’s vital to the next deal and someone who isn’t, and in the end, however…unsophisticated it is, it’s very hard for the organisation to let the commercially valuable person go.”

11. Risk of personalisation • Potential for employer to shift the responsibility for the conflict the parties involved. “…where mediation is being used to personalise something that is corporate. So people will, yeah, rather than looking at the structural sexism in their organisation, they’ll say, “oh Janet and John can’t work together”…I’ll tell you now, there’s something really crap about putting in a load of support and investing in your employee base, whilst still allowing your senior management to behave like shits, because what you’re doing is, you’re saying, you’re going to create an organisation that’s fundamentally naff but we’re going to support you in putting up with it, and that’s horrible. That’s horrible. There’s got to be integrity in an organisation.”

12. Protection? • Provide protection? • Workplace mediation not really about employee protection in any legal sense… • mediation is about empowerment and increased understanding. • Protection against misuse? • Voluntary process – only an option “[I]t’s an option. It doesn’t diminish anybody’s rights to be able to turn around later on and say this hasn’t worked but I still don’t like what you are doing and grieve through formal processes.” - Mediator integrity and skill.

13. Conclusion: a false start? • Employment relationship envisioned in the rhetoric is an aspirational goal, rather than a reality. • Disconnect between rhetoric and reality can be problematic when mediation is deployed in practice and, without closer examination, any claims to mediation advancing worker power in the employment relationship should be treated with caution. Just a matter of time? External, limited and likely to remain so. Possibly more potential with internal mediation schemes…