University of Strathclyde



Mediation and Justice in the WorkplacePresentation at ‘Stronger Together: The Future of Workplace Mediation in Further and Higher Education Conference’, University of Central Lancashire, Preston 22 September 2015Workplace justice has been a fraught matter for centuries. This city knows that more than most. When Preston’s cotton workers went on strike in August 1842, protesting against a 25% cut in wages and rejection of the “People’s Charter”, they were fired on by soldiers of the 72nd Highlanders. Most believed the order had been given by the Mayor, Samuel Horrocks. Four “Preston Martyrs” were killed as a result.This highlights a key issue in thinking about justice: who gets to define it? Following the incident the Northern Star wrote of “the almost unanimous opinion that the Mayor ought to be tried for wilful (sic) murder” (Wikipedia). For many, justice lay with the strikers and should condemn the authorities. Yet in reality the Mayor was not called to account and a further twelve people were imprisoned for their part in the disturbances. Justice came from an external source (the law). And while that seems to have dismayed “almost unanimous opinion”, it probably pleased some: the Mayor, the soldiers and others sympathetic to the mill owners, for example. So talk of justice needs to address two difficulties:how to apply it to the messy reality of eventshow to decide between competing conceptions of justice.Philosopher Alastair MacIntyre captured this in his masterpiece “Whose Justice, Which Rationality?” (1987). He pointed out that what we regard as just is affected by the tradition we come from. For a trade unionist, workplace justice is a straightforward matter of fair treatment: a fair day’s wages for a fair day’s work. Shareholders and managers may not disagree. But they may also see justice in other ways: is it fair when competitors in other countries pay lower wages and lower taxes? The battleground in contemporary employment is also over the second half of the equation: how do we measure a fair day’s work? How much work is reasonable? How do we treat those who work more slowly? Should we apply equity (getting what your work deserves) or equality (getting the same as others), or indeed need (dividing rewards according to whose need is the greatest) (Deutsch 2014, p.31)?Notice that, already, in discussing questions of justice the word “fairness” has crept in. Are they the same? They are often used side by side. Wilson and Wilson’s fascinating (2006) article traces the origins of the two English words. Justice has its roots in French and Latin, the languages of the King and the court. It has the ring of authority and officialdom. Fairness, on the other hand, is a Norse word with origins in the visual qualities of a “fair” payload on a boat. It is everyday and self-evident. One way of understanding the distinction would be to see fairness as subjective and justice as objective. Anyone can reasonably take a view on fairness; justice, in contrast, requires consistency. Put another way, fairness is a universal urge but a subjective standard; justice is the domain of specialists but seeks to set universal standards (Irvine 2015). If a rule doesn’t apply to everyone, then it isn’t a rule. Justice also requires expertise: the thickets of the law famously take years to disentangle. This much has been known for centuries. Any common lawyer will acknowledge the distinction between law and equity: law lays down rules and should be clear, predictable and consistent; equity is flexible, humane and driven by fairness. Thomas Main (2005) suggests that ADR could be seen as the new equity. He makes a stark warning based on equity’s history: there is a tendency for innovative, flexible practices to become, in the end, as procedurally complex and impenetrable as the rules they were designed to replace.One way of understanding mediation is as a forum that enables people to consider a range of normative sources: external legal norms, internal fairness norms and justice, the “sovereign virtue” (Aristotle 1976, p. 173).Process ComparisonIt is my contention that the source and content of justice is to a great extent dictated by the logic of the process from which it emerges. Put differently, you can achieve justice in both adjudication and mediation, but it will come from different players and may mean different things (Hyman and Love 2002). I have attempted to illustrate this using the diagrams below: for clarity they are set out as simple triads though in practice there may be two or more people in each corner. In adjudication the judge is responsible for both process and outcome. She or he ensures that procedural rules are followed. Parties make their case (exercising voice, see below, p.5) either directly or through their advocates. Once the case has been made, the judge is sole decision-maker. The justice system maintains quality through an appellate structure and consistency via precedent. In mediation, by contrast, outcome control rests with the parties. The mediator exercises a degree of process control depending on his or her stylistic preferences (for a critique of mediator process control see Bush and Folger 2005). The logic of party self-determination dictates the direction of communication; mediator questions promote communication and negotiation. In the end the decision emerges from the parties. It is not subject to appeal and, as things currently stand, sets no precedent for future cases. It might be termed subjective justice (Kalowski, cited in Lack 2012, p.21).These two archetypes are misleading in their purity. In practice a number of adaptations have been made. Kalowski suggests that “objective justice” can be achieved by a mediation-like process she calls “conciliation”:Process and communication are similar to mediation but the conciliator brings external normative sources into play: precedent, statute and legal doctrine. The proposals emerge from the conciliator, presumably following negotiation with the parties in the light of these external norms.Workplace mediation has some similarities to this. Three-way communication remains the order of the day but formal law plays a much smaller part. Drawing on Ellen Waldman’s (1997) typology, workplace mediators appear to be employing a variant on the “norm-educating” style. They may highlight normative considerations external to the parties such as standard working practices within the sector and arrangements that have worked in other settings; they also draw on parties’ internal sense of fairness in crafting an acceptable outcome. Unlike Waldman’s norm-educating approach, however, this model portrays the mediator as contributing to the outcome: it seems disingenuous to claim that someone who plays such a substantive role in topic selection and process management is not implicated in the decisions thus made. I have called this “mediated justice”.Justice Through Discussion? Do mediation parties expect justice to be on the agenda? We still know little about participant expectations of workplace mediation (for an attempt to investigate pre- and post-mediation attitudes in civil disputes see Shestowsky and Brett 2008). My own experience as a practitioner suggests most employees approach it with low expectations and significant misgivings. A frequent comment after the event is “That wasn’t as bad as I expected.”One counterintuitive insight comes from Jacobs and Aakhus’ (2002) research, portraying idealistic parties and pragmatic mediators. “Ordinary people bring to mediation a commonsense vision that their dispute will be resolved through reasonable argumentation. They expect to receive justice through discussion [emphasis added] (Merry and Silbey, 1984). They assume that the best way to proceed is by bringing in the facts of the matter, establishing who is in the right and who is in the wrong, determining relevant evidence, and so on” (Jacobs and Aakhus 2002, p. 177). This rather purist form of argumentation is characterised as “critical discussion”, one of three forms mediators employed. The other two were “bargaining” and “therapeutic discussion” (Jacobs and Aakhus 2002, p. 183). Mediators employing critical discussion would use the following moves:“Determine the points at issueRecognize the positions that the parties adoptIdentify the explicit and implicit argumentsAnalyze the argumentation structureSolicit evidence, reasoning, and counterarguments” (p.185).In the event, however, the mediators in their sample rarely employed critical or therapeutic discussion; bargaining was the predominant approach. Conflict is framed as a matter of “competing wants and interests”; resolution consists in “maximising gain and minimising costs to both parties”; and the criterion for evaluating success is “mutual acceptability” (Jacobs and Aakhus 2002, p. 186). So parties and researchers thought mediation would be a principled discussion about the merits of the matter; mediators seemed more interested in striking a deal.These authors speculate that the mediators develop a theory in practice that favours bargaining: the explanation may be straightforward. One of most important elements in mediation practice is maintaining the trust and respect of the clients. Lose that and the moment is lost. Mediation may be more akin to pushing at a number of doors until you find one that opens. Repeated experience has probably taught mediators that pushing at the door marked “Whose argument is more justified?” rarely leads to good things. On the other hand, pushing at the door marked ‘How are we going to find a practical resolution?’ is often (though not always) productive. This mirrors the High Conflict Institute’s key idea for dealing with difficult people: ask “What’s Your Proposal?” (Eddy 2014).Procedural JusticeIs bargaining fair? One of the authors of an extensive study of court mediation schemes in England thought not: “[Mediation] does not contribute to substantive justice because [it] requires the parties to relinquish ideas of legal rights during mediation and focus, instead, on problem-solving…. The outcome of mediation, therefore, is not about just settlement it is just about settlement” (Genn 2012, p.411).Genn uses the term “substantive justice”. Why not simply “justice”? She is doubtless aware that some scholars have subdivided justice into two dimensions. Substantive (or distributive) justice refers to what you get, the outcome. Procedural justice is about how you get there. A substantial literature over some forty years (MacCoun 2005; Tyler 2006) has demonstrated the significance of the procedural element. In most contexts the way we are treated is a more stable predictor of satisfaction than the result we achieve. This is not to say that the result is unimportant. It can, however, be difficult for the average person to know what is a “good” result, particularly if they are not specialists in the area in question or lack knowledge. For instance, in the workplace, while my wage relative to others may be very significant to me I may not possess that information; on the other hand I can see fair (and particularly unfair) treatment first hand.So what kind of treatment do people regard as fair? The following appear to be important:Voice – the opportunity to present one’s views, concerns and evidence to a third partyBeing heard – the perception that the “third party considered their views, concerns and evidence” (Welsh 2001, p.820)Even handed treatmentDignified treatment (Lind et al 1990).Adversarial adjudication is generally rated as fair by participants (MacCoun 2005). They can see that they or, more usually, their representatives have the opportunity to make their case (voice); they can evaluate at a glance whether the third party (judge) is listening; civil procedure ensures even-handedness; and lay people seem to regard court processes as highly dignified (Lind et al 1990). In contrast, negotiation behind closed doors by representatives provides few opportunities for the demonstration of any of the above qualities. In one study settlement conferences of all types were rated as less fair than court or arbitration, irrespective of outcome (Lind et al 1990).Welsh (2001) has speculated that mediation ought to score highly in procedural justice terms. Most mediators invite parties to tell their story; they are trained in active listening, thus fulfilling the “being heard” dimension; their commitment to impartiality should ensure even-handedness; and dignified treatment seems to be the aim of much mediation practice. She warns, however, about the impact of the justice system on mediation practice, suggesting that drive for efficiency and legal culture itself can lead mediators to adopt less helpful practices. She names a reduced role for disputants, the rise of the evaluative approach and the demise of the joint session among the factors limiting perceived procedural fairness.Later theorists have further subdivided justice into four dimensions, adding to substantive and procedural justice:interpersonal justice, “the sensitivity, politeness, and respect people are shown by authority figures during procedures” and informational justice, “the explanations or information provided by decision-makers as to why certain procedures were used or why outcomes were distributed in a particular way” (Conlon 2006, p.249). One study tested the relationship between workplace stress and the four elements of justice, working on the hypothesis that unfairness would be a significant source of stress. Paying particular attention to work/family conflict the study found that procedural and interpersonal justice were negatively linked to workplace stress, while there was no significant effect for distributive or informational justice (Judge and Colquitt 2004). In other words, people who felt they were fairly and courteously treated were less likely to regard the workplace as stressful. One possible explanation for the effect of procedural justice is that in situations of uncertainty it is particularly important to us to see fair procedures and decent treatment. When it comes to interpersonal justice, Judge and Colquitt speculate that poor treatment (“interpersonal injustice”) is a “hot and burning” sensation associated with “intense and personal pain” (p. 401, citing Bies 2001, p.90).All of these findings underline the critical importance of mediator behaviour in workplace justice. While lack of comprehensive information makes it difficult for mediators to assess distributive justice, we can certainly tell when procedural and interpersonal justice are present. Are both parties being offered “voice”? This may require the mediator to ensure that one party’s “voice” does not drown out the other’s. Are participants “being heard” by the authority figure (in this instance the mediator)? The skills of active listening would be critical. Are both individuals being treated even-handedly? Mediators can develop an internal “give and take score” (Erickson and McKnight 1988, p. 208) of who has had the most attention and who needs some time to speak. And are people being treated in a dignified manner? Dignity is a subjective value, but Bush and Folger seem to capture something like it in their principles: “‘The parties have what it takes’: Taking an optimistic view of parties' competence and motives” (1996, p. 269) and “‘The parties know best’: Consciously refusing to be judgmental about the parties' views and decision” (1996, p.268). Another source of justice in mediation may be a form of informational justice. While mediators are shy about suggesting they offer legal advice, they appear to offer significant process advice. Most workplace mediators will be familiar the steps along the path of a dispute: informal warnings, formal grievance and disciplinary procedures and Employment Tribunals. Without commenting on possible outcomes they can provide information on timings, costs, personnel and even the meaning of specialist legal terms. They can answer questions such as: “if this isn’t resolved today, what is likely to happen next?” As “one-shotters” (Galanter 1974), workers in disputes may be unfamiliar with formal processes. Mediator process information may be a significant element in enhancing access to justice. ConclusionDoes workplace mediation provide access to justice? Or perhaps access to fairness? I argue that it provides access to a norm-oriented process in which parties and mediator have degrees of influence. Fuller claimed: “A serious study of mediation can serve, I suggest, to offset the tendency of modern thought to assume that all social order must be imposed by some kind of ‘authority’” (1971, p. 315). Mediator authority, such as it is, is negotiated with the very people most affected. Mediation’s radical move is to offer parties a say, not just in the outcomes of their disputes, but in the criteria by which those outcomes are judged. While this may be troubling to those who look for universally applicable rules, it seems to reflect the reality of the contemporary workplace. Organisations are increasingly seeking autonomous individuals who take responsibility both for their output and the culture in which they work (Laloux 2014).From one perspective, then, increasing workplace justice would mean giving individuals greater access to authority figures who could provide definitive rulings on all manner of contentious issues. That seems out of step with society, a move back towards hierarchy, where rules are set by the person at the top and followed at every level. An alternative perspective would secure an increase in workplace justice by broadening the base from which it is derived. If a dispute arises, mediation provides a forum in which those most intimately involved can negotiate the norms by which they operate. This requires faith in people’s capacity to operate fairly and to know what justice is. In 1842 it was considered just to shoot and imprison workers who left their employment. We have clearly moved on, but how far is unclear. Do we trust workers on such issues as the fair allocation of rewards? During a training event I was demonstrating how mediation worked in practice. One observer commented: “This is very grown up”. The unanswered question is whether mediation requires mature people to work, or whether mature organisations nurture mature employees.

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