The role of mediation in resolving workplace relationship conflict

The role of mediation in resolving workplace relationship conﬂict

Donna Margaret McKenzie

⁎

Institute for Safety, Compensation and Recovery Research, Monash University, Melbourne, Australia

abstractarticle info

Available online 3 February 2015

Keywords:

Mediation

Therapeutic jurisprudence

Workplace conﬂict

Alternative dispute resolution

Stress triggered by workplace-based interpersonal conﬂict can result in damaged relationships, loss of productiv-

ity, diminished job satisfaction and increasingly, workers' compensation claims for psychological injury. This

paper examined the literature on the role and effectiveness of mediation, as the most common method of Alter-

native Dispute Resolution, in resolving workplace relationship conﬂict. Available evidence suggests that media-

tion is most effective when supported by organisational commitment to ADR strategies, policies and processes,

and conducted by independent, experienced and qualiﬁed mediators. The United States Postal Service program

REDRESS™ is described as an illustration of the successful use of mediation to resolve conﬂict in the workplace.

1. Introduction

A psychologically healthy and safe workplace has been deﬁned as one

in which organisational support exists for the physical, social, personal

and developmental needs of employees (Kelloway & Day, 2005). Despite

the existence of Occupational Health and Safety legislation designed to

protect workers, and the abundance of guidance available to employers

and employees on how to combat it, the modern workplace is increas-

ingly characterised by stress. Stress is deﬁned here as the emotional or

mental condition experienced by someone in response to a perceived

threat (stressor) in their environment. In this instance, the stressor is in-

terpersonal conﬂict and the environment is the workplace. A number of

theories exist for why workers experience stress in the workplace but

most recognize that it is to do with either the work environment or job

factors rather than individual personalities (Dollard & Knott, 2004). In

Australia, workers experiencing ill health as a result of stress to which

their workplace or employment has signiﬁcantly contributed are entitled

to submit a claim for workers' compensation. Although the cost to orga-

nisations and workers' compensation schemes, prevalence of stress

claims, and relevant legislation varies between states, nationally the

number of claims continues to rise (Dollard & Knott, 2004). These claims

are also expensive due to the often lengthy periods of absence and com-

plicated medical care characteristic of this type of injury (Cotton, 2008;

Guthrie, Ciccarelli, & Babic, 2010). Such is the increasing number of psy-

chological injury claims in Australia, a range of legislative amendments

has been implemented in all jurisdictions (Cotton, 2008; Guthrie et al.,

2010). Yet, as Cotton (2008, p.8) notes, the situation has not been able

to be legislated away. Moreover, compensable stress-related claims

continue to grow, along with their associated expenses (Guthrie et al.,

2010). Research also suggests that available statistics under-estimate

the extent of workplace stress, as many people neither report it nor ﬁle

a compensation claim (Caulﬁeld, Chang, Dollard, & Elshaug, 2004,

p.149). This ﬁnding although concerning is not unexpected since, as

Dollard and Knott (2004, p.355) observe, “workers typically regret mak-

ing a claim, ﬁnd the process very stressful, and experience it as a form of

social suicide.” What is more, involvement in the compensation process

can be an additional stressor for already injured workers (Lippel, 2007;

Roberts-Yates, 2003).

The focus of workers' compensation systems in many jurisdictions is

on injury (rather than claim) management with an emphasis on a re-

turn to work (King & Guthrie, 2007). This is in keeping with a recent sys-

tematic review that found that in a variety of populations, times and

settings, there are health beneﬁts for injured workers in returning to

work (Rueda et al., 2012). However, as Roberts-Yates (2003) notes, re-

covery from any injury can be strongly inﬂuenced by treating medical

experts, the nature and severity of the injury, the emotional and psycho-

logical fragility of the injured worker and the culture of the workplace.

MacEachen, Clarke, Franche, and Irvin's (2006) systematic re view of

qualitative li terature on return to work found that goodwill (wher e

the employee feels attached to their workplace), trust and overarching

conditions are central to successful return to work arrangements. In ad-

dition, there are often social and communication barriers to return to

work and intermediary players (such as managers) have the potential

to play a key role in facilitating this process. For those suffering a psy-

chological injury, even if they return to the same workplace, this process

can be complex and prolonged.

In the past, most return to work policies and programs took a “top

down” approach with employers having the responsibility to establish

a return to work program as opposed to involving the injured worker

in formulating a program in conjunction with the approval and support

of the employer (King & Guthrie, 2007, p.40). But this requires a good

International Journal of Law and Psychiatry 39 (2015) 52–59

⁎ c/o ISCRR, Level 11, 499 St Kilda Road, Melbourne, VIC 3004, Australia. Tel.: +61 3

9903 8610, +64 220843066 (mob).

E-mail address: donna.mckenzie75@gmail.com.

http://dx.doi.org/10.1016/j.ijlp.2015.01.021

Contents lists available at ScienceDirect

International Journal of Law and Psychiatry

relationship to exist between employer and employee, a key factor in a

successful return to work for workers' compensation claimants.

The term workplace relationship generally refers to all interpersonal

relationships which individuals form whilst performing their jobs and

can range from supervisor/subordinate to romantic (Sias, 2009). Work-

place interpersonal conﬂict is frequently identiﬁed as a source of stress

which, in some circumstances, may lead to a workers' compensation

claim for psychological injury. Conﬂict in the workplace can result in dam-

aged relationships, loss of productivity and job satisfaction (Kidder, 2007)

for the individual. This also has consequences for employers and society in

general. Researchers of organisational behaviour and industrial relations

have long recognised the importance of a procedure for resolving em-

ployment disputes. Many studies draw on theories such as procedural

justice and social accounts theory that suggest opportunities for people

to have their concerns heard and taken seriously, and perceptions of fair-

ness, will be associated with positive outcomes (Bingham & Novac, 2001).

However, Elshaug, Knott, and Mellington (2004) emphasise that any so-

lution needs to be examined in different ways: individually, in terms of

a person's psychological and physical well-being; organisationally with

regard to issues associated with loss of productivity and absenteeism;

and at a societal level in relation to costs associated with mental health

and family well-being.

This article is based on a “Snapshot Evidence Review” undertaken by

the Institute for Safety, Compensation and Recovery Research (ISCRR)

on behalf of WorkSafe Victoria. It examined a selection of the literature

on the role and effectiveness of mediation in resolving cases of work-

place relationship conﬂict

expanded to more emphasise ADR processes

in general in the context of the principles of therapeutic jurisprudence.

2. Method

An initial systematic search of health and social science databases

was conducted to identify relevant peer-reviewed literature published

in English between 1990 and 2012. Searches used combinations of the

terms: mediation; workplace mediation; psychological injury; stress;

workplace stress; workplace relationships; and return to work.

Databases consulted were Expanded Academic, PsychInfo, PubMed,

Medline, CINAHL, ABI/Inform Complete, Current Co ntents, Proquest,

SCIRUS and Google Scholar. Abstracts of potential papers were read

and full text versions obtained of relevant references. Further references

were identiﬁed from reference lists of these papers as well as a search of

grey literature from relevant government bodies and other institutions.

This article is a revised version of the ISCRR report. In addition to the

original search, an additional limited search was undertaken using the

terms alternative dispute resolut ion and therapeutic jurisprudence

and the inclusion of the year 2013.

2.1. Relationship conﬂict in the workplace

The emotional dimension of work relationships is important. Work-

place or professional behaviour is often very different from customary,

societal, forms of emotional behaviour. Workplace relationship conﬂict

can vary from minor disagreements between co-workers to aggression

and organisational violence; it may be overt or covert, intentional or un-

intentional, but all conﬂict will be characterised by negative emotions

(Kidder, 2007). For example, Struthers, Dupuis, and Eaton (2005,

p.305) argue that co-worker relationships, increasingly recognised as

one of the most meaningful interp ersonal relationships that people

will have at work, require a particular kind of “emotional labour”. But

due to the public nature of the workplace, emotions such as distress

may have to be disguised, attraction suppressed, or annoyance left un-

spoken (Fineman, 2000, p.2). As Lutgen-Sandvik (2006, p.426) notes,

“…communication at work …is always social and public.” Waldron

(2000) argues that the experience of emotion at work is inﬂuenced by

the unique contextual features of work relationships and is an integral

part of relational conﬂict. Moreover, the role of emotion and feelings

of alienation in protracted workplace conﬂict impairs communication

by producing intense emotions, especially shame and anger (Retzinger

& Scheff, 2000).

Poor interpersonal relationships in the workplace are frequently

identiﬁed as a source (as opposed to a predictor) of stress. There are

some indicators such as taking frequent leave or absenteeism that

point to workers suffering from workplace stress. When taken together,

high levels of distress and low job satisfaction have been identiﬁed as

precursors to stress claims (Dollard & Knott, 2004, p.350). Conﬂict, as

an emotional experience, has psychological and physical consequences;

psychological injury claims are therefore likely to also have corporeal

outcomes (Dollard & Knott, 2004; Elshaug et al., 2004). Dollard and

Knott (2004, p.353) point out that workplace psychological injury, in-

cluding interpersonal conﬂict, “…tends to have a poor p rognosis in

terms of claim duration [and] return to work outcomes.

” They, li ke

Roberts-Yates and MacEachen et al., argue that organisational culture,

and support for injured workers, as well as beliefs and attitudes about

psychological injury, impact negatively on these outcomes.

Although causes and conditions of sickness absence are not well

documented or understood this can be an indicator of a more serious

problem such as bullying or harassment. Although some workers ﬁnd

that sickness absence and disconnecting from the work environment

can provide short term relief, they often ﬁnd that the problem remains.

In these instances organisations need to address interpersonal issues if

workers are to be able to successfully return to work. For example, stud-

ies on bullying in the workplace have found that changes in working

conditions that remove or interrupt bullying are important indicators

of returning to work (O'Donn ell, MacIntosh, & Wuest, 2010). In

O'Donnell et al.'s (2010, p.448) study of women affected by workplace

bullying, they found that “adjusting was inﬂuenced by working condi-

tions and organisational support. ” But the viability of this depended

upon not just the willingness of the workplace to change, but its ability

to change. For example, many small businesses may be too small and

unable to reorganise their workplace whereas others may simply be un-

willing to do so.

When it comes to workplace disputes, interpersonal conﬂict is most

often considered to be an occupational health and safety (OH&S) rather

than industrial relations issue. OH&S models often treat stress as an indi-

vidual reaction to external conditions (Kelloway, Teed, & Kelley, 2008)so

that strategies and interventions relating to work stress occur at three

possible levels: primary, secondary and tertiary. Most interventions

occur at either the secondary level (individual/organisational interface)

with a focus on altering the way that individuals respond to stressors at

work and improving their coping mechanisms; or the tertiary (individu-

ally-focussed) level that aims to minimise the effects of stress-related

problems once they have occurred (Elshaug et al., 2004; Lamontagne,

Keegel,Louie,Ostry,&Landsbergis,2007). Workplace dispute resolution

procedures are likely to be tertiary level interventions.

Workplace psychological injury/conﬂict is both individual and col-

lective as it oc curs within the context of an organisation. There also

tends to be a higher degree of reporting delay with psychological inju-

ries than with other workplace injuries (Elshaug et al., 2004, p.529),

often exacerbated by the stress of the claim process itself (Wineﬁeld,

Saebel, & Wineﬁeld, 2010). But why some people go on to submit a

workers' compensation claim for psychological injury whilst others do

not, is not able to be accurately predicted (Haines, Williams, & Carson,

2004; Haines, Williams, & Carson, 2006; Wineﬁeld et al., 2010). Only

one study found suggested that psychological injury claims could be

predicted; the indicator being worker perceptions of workplace unfair-

ness (Wineﬁeld et al., 2010).

Snapshot evidence reviews have a short turnaround time and so are unable to provide

deﬁnitive answers or exhaustive analyses based on all existing evidence. Due to short time

frames, searches are also likely to be limited to a small number of databases and search

terms.

53D.M. McKenzie / International Journal of Law and Psychiatry 39 (2015) 52–59

Schultz (2008) notes that return to work is both a process and an

outcome. In psychological injury litigation there is a gap between the

broadening and transdisciplinary conceptual models of health, function

and disability. “The new focus is on the individual with disability in en-

vironmental and temporal context and on the synthesis of the medical

and the psychosocial. Traditionally, the ﬁeld of psyc hological inj ury

and the law has not been well deﬁned and has been inﬂuenced by the

biomedical paradigm which challenges the adversarial outcome

model.” One way in which harm associated with the adversarial nature

of the litigation process can be mitigated is through alternative dispute

resolution (ADR) processes.

3. ADR

ADR evolved in the USA as an option for resolving disputes outside a

courtroom and in response to weaknesses in the adversarial legal sys-

tem (Struthers et al., 2005). ADR methods are now practiced worldwide

in various ways. Lipsky and Avgar (2004, p.176) suggest that ADR was a

paradigmatic shift in employment dispute resolution; a product of a

“historic transformation of the American workplace” that began in the

1970s. ADR methods include ( but are not limited to) processes such

as: open door policies; Ombuds; peer review; employment arbitration;

negotiation; and mediation ( Bingham, 2004; Mahony & Klaas, 2008;

Vickers, 2006). Schneider (1999, p.1086) argues that “ADR differs fun-

damentally from the adversarial system in that it seeks a mutually sat-

isfactory process and resolution to a dispute” and that because it is

faster, more ﬂexible, and less costly than litigation, ADR serves clients

and their lawyers; the justice system (through a reduced case load);

and provides dispute resolution opportunities to the broader communi-

ty. A skilled lawyer can become a source of both technical and social

support (Lippel, 2007) if a collaborati ve rather than adversarial ap-

proach to conﬂict is taken.

The increasing use of ADR is only one recent reform in the ﬁeld of ju-

dicial dispute resolution. Another is therapeutic jurisprudence (TJ) that

encourages lawyers to assess the potential emotional impact of litiga-

tion on a client. This approach views the law as a healing agent and ac-

knowledges that the justice system has an ef fect on individuals and

communities that extends beyond rights and obligations to encompass

overall well-being (Campbell, 2010; King & Guthrie, 2007; Wexler,

2011). Wexler (2011) for example, argues that the law has the potential

to be more than a formalistic process; that it can also be an agent of rec-

onciliation and resolution. Originally developed in the ﬁeld of mental

health law (Struthers et al., 2005), TJ is most often associated with crim-

inal law and other “problem-centred” courts but is also applied in civil

law practice, in particular to workers' compensation and other personal

injury claims (King & Guthrie, 2007). It has been argued too, that TJ has a

preventive and remedial quality in its emphasis on issues of fairness and

the value it places on processes that promote resolution of what can be

highly emotive contexts (King, 2008; King & Guthrie, 2007; Wexler,

2011). “It points to the importance people place on having some control

over what happens to them, in being able to choose what they do. It

points to the value of self-determination in promoting health

” (King &

Guthrie, 2007, p.39). However, if TJ is preventive, it can only be so in

the sense that the aim is to prevent further harm; it cannot prevent

what has already happened.

Other, similar approaches within the justice system are restorative

justice (RJ) and preventive law (PL) (King, 2008). RJ (although limited

to the context of victim/offender) like TJ, also aims to heal relationships

rather than balance hurt with hurt (Kidder, 2007). The RJ process, as a

mediated encounter between victim and offender, allows the emotions

of each party to be expressed and appeased by discussing the events,

their ef fects and what the offender might do to make amends (Ki ng,

2008). Yet it is not without its critics. Michael King (2008, p.1110)

notes that some primary criticisms are that it puts pressure on victims

to participate; there is a risk that victim and/or offender will be harmed

by it; it is particularly problematic where there is a power imbalance

between victim and offender (such as in cases of sexual assault and do-

mestic violence); and it unde rmines deterr ence. Further more, it has

been sugge sted that in such an emotionally charged situation where

people are especially vulnerable, there must be proper processes in

place (such as ways to prepare for the encounter and proper facilitation

by the mediator) to alleviate the risk of further harm to the parties.

Proper guidelines “…are therefore vital for the protection of the parties

and the process” (King, 2008, p.1111). Schneider (1999, p.1087) notes

that “the concept behind PL is both the clear establishment of legal

rights and duties as well as the avoidance of litigation.” This approach

focuses on the role of the lawyer as advisor/counsellor and planner.

However, not all lawyers will necessarily be comfortable with this

kind of role.

One challenge for ADR is to determine whic h method is the most ap-

propriate for the case at hand. Schneider (1999) has suggested a four-

step approach by which lawyers can choose the most appropriate ADR

method for their client: identify emotional concerns; determine legal

procedures that would be therapeutic; implement PL for therapeutic out-

comes; and establish a legal check-up system. Depending on the needs of

the client, she considers that there are three main approaches most likely

to serve a therapeutic interest: negotiation, arbitration and mediation.

Negotiation allows the client to be the most detached from legal proceed-

ings as negotiations occur mainly between lawyers, whereas in arbitra-

tion the client is more involved. However, both these approaches

operate under the assumption that the parties are adversaries. Mediation,

on the other hand, allows the parties the opportunity to talk directly to

each other facilitated by an independent mediator.

3.1. ADR in other contexts

Teague, Roche, and Hann (2012) note that there has been relatively

little work done on the organisational uptake of ADR in countries other

than the USA. They ask whether it is a peculiarly North American phe-

nomenon or whether it constitutes a genuinel y innovative approach

to conﬂict management. The extent to which ADR and meditation in

particular, has been taken up across the globe in the same way and

with the same kinds of results, is therefore open to question (Teague

et al., 2012). Teague et al. distinguish between ADR as individual-

based conﬂict, as is largely the case in the USA, and the collective con-

text which is more prevalent in nations with a history of gr oup

workplace/interest-ba sed bargainin g such as Ireland, the UK, and

Australia. In Ireland, for example, the Labour Relations Commission

deals with disputes arising from a range of statutory employment rights

as well as other employment issues for groups, whether unionised or

not. Further, most ﬁrms in Ireland follow relatively orthodox practices

to resolve workplace conﬂict and the incidence of ADR for managing

conﬂict involving individuals is extremely modest. This may be a reﬂec-

tion of the institutional framework for conﬂict resolution in that coun-

try although Teague et al. (2012) found in th eir survey of Irish

organisations that US-owned multinationals were more likely to have

adopted individual ADR practices than their Irish c ounterparts and

other multinationals.

3.2. ADR in Australia

Although ADR has been increasingly used in Australian workplaces

since the late 1980s it is applied almost exclusively to interest disputes

such as personality conﬂicts, disciplinary matters and to facilitate enter-

prise negotiations (Forsyth, 2012). When compared to the USA, private

ADR does not have a signiﬁcant place in workplace dispute resolution in

In this article the term parties refers to the participants in a dispute. This may be lim-

ited to two individuals or encompass groups of people. They represent the different sides

in a dispute such as a n individ ual and their manager, two co-workers, or a group of

workers and the organisation for which they work. This does not include a mediator unless

otherwise stated.

54 D.M. McKenzie / International Journal of Law and Psychiatry 39 (2015) 52–59

Australia (Colsky, 2001; Forsyth, 2012). This is largely because of the

role and effectiveness of the government organisation, Fair Work

Australia (FWA). FWA undertakes conciliation, arbitration and media-

tion processes for workplace disputes. The types of disputes it mainly

deals with include those falling under the terms of an award or collec-

tive/enterprise agreement; bargaining disputes; and disputes arising

under general protections provisions of the Fair Work Act 2009 (issues

such as unfair dismissal; workplace rights; or adverse actions such as

discrimination and bullying

). Dispute resolution services are able to

be accessed by individuals and groups including employers, employees

and unions.

There are some larger organisations that offer ADR programs to their

staff such as the Australian Defence Force that offers interactive problem

solving; conﬂict coach ing; mediation; a nd group facilitation and the

Victorian Sta te Services Authority which provides ADR processes as

part of its staff grievance procedures. Although only descriptions rather

than formal evaluations are available, Forsyth (2012, p.484) notes these

examples are “…consistent with anecdotal reports of an increasing pro-

pensity of employers to utilise workplace mediation, particularly for

‘employee on employee’ conﬂict.”

In the private ADR sector there is some evidence that practitioners

are having success in combining facilitative and transformative media-

tion models in resolving workplace-based conﬂict (Manning, 2006 ).

Manning suggests that these two models allow for behavioural changes

in workplace interactions desired by employees and employers. In con-

trast, settlement-based mediation is less suited to workplace conﬂict as

it does not address the underlying tensions between the parties. If not

resolved, “…tensions and differences are likely to ﬂare up again in fu-

ture contexts such as meetings, lunch rooms, corridor interactions, func-

tions , etc.” (Manning, 2006, p.87). In Manning's study, a series of 20

cases were referred to independent mediation; 17 of these resulted in

an agreement formulated at the time of mediation. At one month

follow-up, 12 of these agreements were still operational.

Mediator practice in Australia is guided by the National Alternative

Dispute Resolution Advisory Council, an independent body that advises

the Australian Attorney-General on ADR and promotes the use of ADR

for civil (rather than criminal) cases. For individual practition ers, a

National Mediator Accreditation System of Mediator Standards is ad-

ministered by the Mediator Standards Board. This allows professional

organisati ons to become a Recognised Mediator Accreditation Body

and to award accreditation to their members who meet these standards,

although this is not mandatory.

3.3. Mediation

Mediation is the most frequently employed ADR method because of

the mediation process itself – when people feel that a process is fair,

they a re likely to be signiﬁcantly mor e satisﬁed with the outcome

(Bingham, 2004). A satisfactory outcome for participants is that the ex-

perience is as collaborative and least traumatic as possible. In mediation

this happens in the same way in either a legal context or in other conﬂict

situations (King & Guthrie, 2007) such as peer mediation (McWilliam,

2010) and workplace c onﬂict resolution (Bingham & Novac, 2001).

The general process involves three features:

Participation – participants are actively involved in the decision-

making process. By participating, it may be found that simple misun-

derstandings are at the heart of a dispute.

Representation/reparation – parties are allowed to express their per-

spective and how they feel about what has occurred. One of the most

powerful forms of reparation is an apology (research on apologies at

work has found them to be effective).

Validation/reintegration – pa rties work to solve a dispute in a co-

operative and respectful way. For example, in restorative justice, bal-

ance is achieved through forgiveness as the parties are reintegrated

back into the original “

community” (Kidder, 2007).

Kidder (2007) argues a case for the concept of restorative justice and

use of mediation in organisations, especially for managers of teams in

which conﬂict is a barrier to effective performance. Restorative justice-

type meetings, she suggests, can be used as a tool for the team to ad-

dress issues such as poorly performing members and build interperson-

al skills. However, Kidder (2007, p.15) does caution that this process is

not appropriate for all situations, can be time consuming, and has to

be carefully handled so that it may be prudent for an organisation to en-

gage an independent mediator to facilitate. On the whole, mediation is

understood to rely largely on facilitating negotiation among the parties

to a dispute to bring abou t a successful outcome (Harkavy, 1999;

Lewicki, Weiss, & Lewin, 1992). Or, as Della Noce, Bush, and Folger

(2010, p.95) put it, mediation is “…a social process in which a third

party helps people in conﬂict understand their situation and decide

for themselves what, if anything, to do about it.”

In general there are three kinds of mediation

(Bingham, 2004;

Nabatchi, Bingham, & Good, 2007):

Evaluative – in which the mediator offers an expert opinion to assess

the legal and substantive merits of a claim in order to give the parties

information about the strengths and weaknesses of their case.

Facilitative – where the mediator structures the process for the

parties and engages in problem-solving techniques to move the

parties toward settlement.

Transformative – this is less directive than the other approaches. The

mediator provides opportunities for parties to clarify their own inter-

ests, goals and choices to reach a better understanding or acknowl-

edgement of the other's perspective and to resolve their own conﬂict.

Mediation is becomin g a progressively more signiﬁcant aspect of

organisational integrated conﬂict management systems. Considered to

be effective in disputes involving strong emotions, it is increasingly pop-

ular as a means to resolve discrimination and harassment complaints.

Mediation may also help resolve the relational and emotional aspects

of intractable conﬂict found in psychological injury claims (Retzinger

& Scheff, 2000). McWilliam (2010, p.294) suggests that “if left unre-

solved, the residual, underlying relational issues may be externalised

in more destructive forms of conﬂict.” Mediation has also been found

to produce better organisational outcomes than either no intervention

or one involving judgement, such as arbitration, as it is often less expen-

sive and more satisfactory to the parties involved (Bingham, 2004).

Harkavy (1999, p.156) for example, argues that “mediation provides a

comfortable forum for all parties and thus is more likely to facilitate a

workable resolution to a dispute than a more adversarial process involv-

ing rights adjudicated in a formal setting under a ﬁxed set of rules.” It

has also been found that employees involved in an interpersonal dis-

pute often simply want cessation and reconciliation rather than retribu-

tion (Harlos, 2004). Certainly the possibility of an apology is possible in

mediation rather than litigation, where it may be considered an admis-

sion against interest or evidence of liability (Bingham, 2004). White

(2006) argues that the promotion of forgiveness through the use of

court-ordered apology can maximise the therapeutic effect and mini-

mise the anti-therapeutic effect of judicial procedures. There are also ex-

amples in legislation in a number of countries that allow for this without

Bullying complaints and ways in which to prevent bullying are now receiving partic-

ular attention in Australia. On 20 November 2013 the Fair Work Commission released a

Draft Anti-Bullying Case Management Model in preparation for the introduction of a juris-

diction in 2014 http://www.fwc.gov.au/documents/media/releases/20-Nov-2013.htm.

These models are also known by other names. For example Bush and Folger refer to

“…the problem-solving framework; the harmony framework; and the transformative

framework” (Della Noce et al., 2010, p.96). For a debate on the theoretical aspects of me-

diation see for example, Alberstein (2010).

55D.M. McKenzie / International Journal of Law and Psychiatry 39 (2015) 52–59

being deemed constituting an admission of liability for death or injury.

Critics of the court-ordered (as opposed to voluntarily given) apology

have remarked that this has th e poten tial to manipulate victims, al-

though research has shown that it is the degree to which the apology

is perceived as genuine and sincere that is key to its acceptance (Allan,

Allan, Kaminer, & Stein, 2006). Furthermore, there is little to say what

differentiates apologetic behaviour from other restorative behaviour,

and to what extent an apology can address emotional and psychological

wounds is open to debate; some judges have been known to use apolo-

gies as a shaming mechanism (Allan et al., 2006).

Power, a signiﬁcant issue in any mediation, has been deﬁned as “…

the objective control of resources in a situation” (Greer & Bendersky,

2013 p.242) and impacts on negotiation and conﬂict management pro-

cesses as well as outcomes. Van Gramberg (2003) observes that, in the

employment relationship, it is reasonable that employees will be con-

cerned that decisions made by those in power may be exploitative or

motivated by reaso ns other than the issue at hand. Employees deal

with this dilemma by measuring decisions against their own principles

of fairness; decisions which pass their fairness test are more likely to be

accepted and acted upon. Van Gramberg say s that ADR practitioners

need to be aware of the entrenched inequality of power that operates

in the workplace and which is likely to be underplayed and even consid-

ered normal. She goes on to state that “power disparity in ADR acts to

limit the opportunity of weaker parties to have their issues considered

to an equal extent in decision making, leading to injustice. The role of

the practitioner balancing the interests of both parties is therefore par-

amount in pursuing workplace justice” (Van Gramberg, 2003).

There are also other ways of mitigating the effects of power imbal-

ance rather than relying on the mediator alone. A recent study investi-

gating the effects of hierarchal differences on mediation satisfaction by

comparing face-to-face mediations with mediations using a prior online

intake, found that subordinates were just as satisﬁed as supervisors but

only when they had used the online intake (Bollen & Euwema, 2013).

Further, since the power of the mediator has been shown to inﬂuence

behaviour in a mediation (Della Noce et al., 2010; Greer & Bendersky,

2013), those monitoring the performance of mediators need to ensure

that they have not just technical skills, but also well-developed interper-

sonal skills in order to judge how best to approach each dispute for the

beneﬁt of all parties. They also need to adhere to an ethical code that re-

quires them to be aware of their own behaviour and biases.

Power, as a product of relationships between people, is present in all

mediation, but the way in which it manifests is culturally deﬁned. The

following section explores how mediation as deﬁned in a Western cul-

tural context does not always work effectively cross-culturally.

3.4. Mediation in cross-cultural context

Mediation as a way to resolve interpersonal disputes and as an alter-

native to court proceedings also occurs in other parts of the world. How-

ever, the manner in which it is practiced and outcomes are subject to

cross-cultural variation. In The Gambia, for example, Davidheiser

(2006) suggests that issues of power imbalance and inequality that

occur in mediation as understood in a Western model do not always

translate well in others. In his study of mediation between married cou-

ples in The Gambia he notes that although the general view is that

women are subser vient to men, women are just as likely as men to

seek out mediation as a forum in which to air spousal grievances.

Davidheiser (2006) argues that this is because Gambians place a high

value on rela tionship harmony and mediation is a means by which

change can be effected without terminating those bonds. He found

that mediators considered harmonious relations as central to resolving

disputes and rather than being neutral facilitators, were often “…explic-

it in their reference to rights and morals and did not attempt to sideline

them in the interest of neutrality” (Davidheiser, 2006). Furthermore,

mediators were considered by locals to be a fairer and more personal so-

lution than the judiciary, especially for less privileged disputants.

In a further example, Syukur and Bagshaw (2013) observe that a

Western model of court-annexed mediation introduced into the

Indonesian courts in 2003, was less than successful. A signiﬁcant reason

for this was, they argue, that the court-trained mediators were trained

in an adversarial approach and failed to understand existing indigenous

methods of dispute resolution that emphasise harmony. The many dif-

feren t island and ethnic groups that make up the Indo nesian nation

have their own methods and rationale for resolving disputes. The au-

thors suggest that a style of mediation incorporating both indigenous

and Western approaches would be more useful in the Indonesian con-

text. They also emphasise the need for mediators to be culturally ﬂuent

and self-reﬂexive.

Although few evaluations of workplace-based ADR programs were

found in the literature and then only from North America, there is one

program that dominates. Not just the largest and most successful exam-

ple of a workplace-based di spute resolution system, it also demon-

strates the imp ortance of organisational commitment to cultural

change in the workplace.

3.5. REDRESS™ — a case study from the USA

In 1994, the United States Postal Service (USPS), the largest civilian

employer in the world at the time, had a serious problem with a work-

place conﬂict culture, in particular individual, informal employment dis-

crimination complaints (Bingham, 2012; Bush, 2001). In response, USPS

management initiated “Resolve Employment Disputes, Reach Equitable

Solutions Swiftly” REDRESS™, a voluntary conﬂict management pro-

gram providing employees who ﬁled discrimination complaints with

free, outside neutral mediators. A pilot program based on a facilitative

form of mediation was implemented for which early results were prom-

ising (Intrater & Gann, 2001). This led to a period of experimentation

with various models during which time mediation was implemented

in more than 27 cities throughout the USA. The success of the trial led

to its expansion to include formal complaints. For USPS this meant the

involvement of lawyers; not just Postal Service attorneys, but also com-

plainants' attorneys and advocates (Intrater & Gann, 2001)aswellasa

shift in focus from re active to proactive lawyerin g (Hallberlin, 2001,

p.381). The aim was to encourage the use of ADR as well as to ensure

USPS staff received sufﬁcient training in such an approach. At the

same time a research program was initiated in conjunction with

Indiana University which acted as sole outside evaluator of the media-

tors from 1994 to 2006 (Bingham, 2012).

In 1998 Bush & Folger's transformative mediation model was insti-

gated nationwide (Bingham, 2012; Bush, 2001). This model was consid-

ered to hold more promise for improving conﬂict management in the

workplace as a program designed an d managed by the employer

(Bingham, 2012). Although settlement-based mediation was useful in

“closing cases”,itcould“…still leave parties stuck in destructive, alien-

ated interaction as they returned to the workplace” (

Bush, 2001, p.370).

In contrast, the goal of the transformative model, to give disputants an

opportunity for their concerns to be heard and for informed decision-

making, made settlement a by-product of the process. Intrater and

Gann, themselves USPS attorneys, reported that there appeared “…to

be strong general agreement among postal attorneys that, in the context

of employment disputes, winning is often less relevant than achieving

resolution of the parties' underlying problems and improving work-

place relationships” (2001, p.473). There was also evidence that the

number of new formal complaints had reduced.

Due to the large scale of the program, evaluators Nabatchi, Bingham,

and Moon (2010) took a multi-step approach. As researchers they were

unable to observe mediations in progress, so a variety of methods were

used including: archival case ﬁling data to examine formal complaint ﬁl-

ing rates before and after; self-reporting by mediators on their under-

standing of transformative mediation pr actice; interviews with

employees; and national exit survey data (Bingham, 2012). The evalua-

tors noted that although there is a large body of liter ature assessing

56 D.M. McKenzie / International Journal of Law and Psychiatry 39 (2015) 52–59

basic mediator competencies and quality of practice, it is generally

framed within the context of evaluative or facilitati ve models. This

meant that the performance of mediators was not able to be evaluated

by validated tests as transformative mediation occurs in private. How-

ever, USPS trained its own EEO ADR specialists whose role is to monitor

mediator performance. They observe at least one session with new me-

diators to assess their understanding and practice of the transformative

model (Nabatchi et al., 2010).

Examining the REDRESS™ program in 2001, Bingham and Novac

(2001, p.324) concluded that “…outside neutral mediation can have a

signiﬁcant positive effect on an organisation by resolving employment

disputes at an earlier step in the administrative process.” At the time,

the authors noted that limitations of their ﬁndings concerned the rela-

tive newness of the program and that their study did not examine

what happens in the mediation session itself, only the systemic evi-

dence of what implementing the program did to formal EEO complaint

ﬁling in the organisation as a whole. Furthermore, they considered that

it was “impossible in this analysis to tease out the independent effects of

[the] three salient design choices, that is, the transformative model,

early intervention, and the high participation rate as a goal” (Bingham

& Novac, 2001, p.327).

In 2006 Nabatchi et al. (2007) further “ﬁeld tested” the REDRESS™

program to examine organisational justice in a workplace mediation

setting. The authors noted that in general, studies of organisational jus-

tice models explain perceptions of fairness in a two-way relationship

where one decision maker holds authority and control over some kind

of subordinate. In mediation, on the other hand, there is at least a

three-way interaction of interest and ideally a reduced power imbal-

ance among participants. The aim of the study was to capture all possi-

ble interactions and outcomes of transformative mediation in the

context of the workplace. A model that comprised six factors was pro-

posed to assess the program's effectiveness:

• Distributive justice: an emphasis on fairness in the distribution and al-

location of outcomes whereby satisfaction is a function of outcome;

• Procedural justice - process component: participants' perceptions of the

fairness of the process itself;

• Procedural justice - mediator component: objective assessment of the

mediator's performance as a professional;

• In formational just ice: a focus on the enactment and explanation of

decision-making procedures;

• Disputant–disputant interpersonal justice: interaction between dispu-

tants and acts as a measure of how the employer/employee relation-

ship has been repaired; and

• Disputant–mediator interpersonal justice: assessing the disputants' in-

teractions with the mediator.

The authors concluded that their model was a useful tool to assess

the effectiveness of mediation. They also suggested that when structur-

ing a workplace mediation process and training mediators, employers

should emphasise opportunities for respectful exchange that contribute

to perceptions of interpersonal justice between all parties, including the

mediator. In her study on mediation, diversity and justice in the work-

place, Catherine Shivers Powell (2009) found Nabatchi et al.'s model

to be an effecti ve analytical tool to investigate the degree to which

mediators were able to show an appreciation and understanding of di-

versity in their practice. However, due to the emotional nature of work-

place disputes, simply having a model is insufﬁcient. It is the interaction

and intervention of the mediator as well as those which occur between

the parties that create opportunities for change (Manning, 2006, p.88).

In reviewing the results of a 12-year longitudinal study of the

REDRESS™ program, Bingham (2012, p.362) suggests that the transfor-

mative style “…does a better job of fostering perceptions of disputant–

disputant interpersonal justice, and thus possibly, settlement than does

the evaluative style.” More importantly, she argues, it is the institutional

context that shapes how parties respond to mediator style, their satis-

faction, and perceptions of justice. In effect, “…a major lesson of the

USPS research on mediation style is that the mediation action arena is

shaped by its institutional home” (Bingham, 2012, p.362).

4. Implications

Clearly there is evidence that when mediation works it works well

(Bingham, 2012) but this is not a guaranteed (nor is it always the most

appropriate) method for resolving every dispute. Criticisms are mainly

to do with practice. For example, Schneider (1999) suggests that lawyers

who have been trained in adversarial processes may be resistant to the

use of ADR by the courts. Given the increasing acceptance and use of me-

diation in the last decade, this may be of less concern than it once was

(see for example, King and Guthrie (2007)) and training in ADR princi-

ples and practices for lawyers is now widely available – although some

studies have found there is still some resistance to promoting their

use.

Other criticisms have to do with the three principles of the media-

tion process: participation; representation; and validation.

4.1. Participation

A requirement of most ADR processes is that participation is volun-

tary, so it is always possible that one or both parties may refuse to en-

gage. Furthermore, by the time mediation occurs, parties to a

workplac e conﬂict may have become involved in a situation marked

by intense emotional experiences and developed assumptions about

others' beliefs and behaviour (Harlos, 2004). In such situations it is pos-

sible that an offer of mediation may be rejected by one or both parties. It

is also not a mediator's role to force or persuade people into a settle-

ment. Sometimes, despite their best efforts, it may not be possible for

mediators to help people to overcome their differences and resolve

the problem. As Maxwell (1992, p.357) notes, “the parties must negoti-

ate not just a settlement but a settlement they can live with.” In these

cases a dispute may be escalated to a more formal method of ADR or

even proceed to litigation.

4.2. Representation

Another reason for non-participation may be when more powerful

parties have stronger rights of refusal. Or, a worker may feel they are

being forced to take part in mediation, especially if loss of eligibility to

compensation is a consequence of not participating. Claimants may re-

gard med iators as authority ﬁgure s and see them as being more

favourably inclined toward an employer (Harlos, 2004). For example,

Van Gramberg (2006) suggests that it is possible that an outside consul-

tant considered to be favourably inclined toward the side of manage-

ment may be engaged by an organis ation to mediate an in ternal

dispute and be used to give the impression of management dist ance

from the decision making process. She argues that entrenched inequal-

ities of power are often underplayed in the normative literature on ADR

and independent practitioners need to be aware of how this can play

out in the context of workplace justice. Workers, compared to manage-

ment, are likely to be limited in their access to information and “…im-

mersed in organisationally constructed social realities and values…

[so] are often unab le to see past these construct s.” Van Gramberg

(2006) has identiﬁed what she considers are three “dilemmas” that

See for example, a survey conducted by the New Zealand Ministry of Justice on ADR

practitioners' and lawyers' perspectives of the beneﬁts and disadvantages of ADR. http://

www.justice.govt.nz/publications/global-publications/a/alternative-dispute-resolution-

general-civil-cases/4-advantages-and-disadvantages-of-adr.

57D.M. McKenzie / International Journal of Law and Psychiatry 39 (2015) 52–59

create a “gap” between the rhetoric of ADR and the reality of practition-

er behaviour that can signiﬁcantly affect outcomes. These are:

1. The absence of precedence in determining outcomes in private ADR;

2. Power imbalances where a practitioner may (un)intentionally act in

favour of the person paying for the process; and

3. Bias in which a passive practitioner allows a more powerful party to

dominate proceedings.

4.3. Validation

In a study of 449 cases handled by four major ADR service providers

in the USA that proceeded to mediation, 78% were settled whether or not

the parties had voluntarily participated (Brett, Barsness, & Goldberg,

1996). However, reports of satisfaction with outcomes may not give

the full picture and should be read with caution. In this particular study

the type of mediation employed was not stated nor whether access to

compensation for claimants was contingent upon participation.

Mediators are usually evaluated by professional reputation, opinions

of the parties, and settlement rates. The historical deﬁnition of success is

the outcome; whether agreement is reached. But this does not necessar-

ily equate to satisfaction with the outcome. The ways in which satisfac-

tion with outcomes is measured is through exit surveys or pos t-

proceedings interviews with participants. Van Gramberg's (2006) inter-

views with workers who had taken part in a workplace mediation re-

vealed that although they might have been satisﬁed with the fairness

of the process, they were less satisﬁed with the outcome. This has impli-

cations for procedural and distributive justice which Nabatchi et al.'s

(2007) model attempts to remedy by splitting the procedural just ice

component into mediator and process components. Nevertheless a

power imbalance is likely to apply to any system of dispute manage-

ment (and indeed almost all human relationships) and so is not peculiar

to ADR.

5. Conclusion

ADR, and in its most common form mediation, is a viable alternative

to formal dispute resolution provided by tribunals or the courts. As a less

adversarial and more personal process, ADR is chosen for a number of

reasons. It is less expensive; can assist in repairing relationships; allow

greater control by disputants over the resolution process; and as a result

parties are likely to be more satisﬁed with outcomes into which they

have had input (Forsyth, 2012). Due to subjective and emotional as-

pects, workplace interpersonal conﬂict is likely to be classed as an

OH&S issue and mediation is the most common response in these

cases. Notwithstanding that the majority of published research on me-

diation has been undertaken in the North American context, there is ev-

idence for mediation as an effective tool with which to resolve

workplace-based conﬂic t. This is especially the case when supported

by organisational commitment through ADR strategies, policies and

processes. However, the return to work process for workers suffering

a psychological injury is complex a nd ofte n protracted. Moreover,

power imba lances in mediation are likely and in this the role of the

ADR practitioner is crucial. To be successful, mediation requires a person

to be suitably qualiﬁed and skilled to negotiate the often tricky emotion-

al situations involved in situations of interpersonal conﬂict and to judge

which model to use in each case. Mediators must be reﬂexive and use

ethical practice when understa nding and dealing with potential in-

equalities between disputants. The USPS REDRESS™ program is a par-

ticularly usef ul example of how an organisation can successfully

reduce instances of workplace conﬂict with an effective dispute resolu-

tion process. Since there is currently little evidence in the Australian

context of the effectiveness, further research in this regard from practi-

tioner, employer and employee perspectives would be useful as well as

the use of mediation in cross-cultural contexts.

Acknowledgements

The Institute for Safety, Compensation and Recovery Research

(ISCRR), is a join t initiativ e of Monash University, WorkSafe Vi ctoria

and the Transport Accident Commission. The views expressed in this ar-

ticle are those of the author.

This article is based on a “Snapshot Evidence Review” undertaken by

the Institute for Safety, Compensation and Recovery Research (ISCRR)

on behalf of WorkSafe Victoria. It examined a selection of the literature

on the role and effectiveness of mediation in resolving cases of work-

place relationship conﬂict to assist people in returning to work. This ar-

ticle updated and extended that review to more fully link the practice of

mediation with Alternative Dispute Resolution and the principles of

therapeutic justice and restorative justice.

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