Welcome to Scribd. Sign in or start your free trial to enjoy unlimited e-books, audiobooks & documents.Find out more
Standard view
Full view
of .
Look up keyword
Like this
0 of .
Results for:
No results containing your search query
P. 1
Ql Fu0qpxjw.pdf

Ql Fu0qpxjw.pdf

|Views: 2|Likes:
Published by Darren Lawson

More info:

Published by: Darren Lawson on Dec 31, 2012
Copyright:Attribution Non-commercial


Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less





is There A Mediator
in The House?
Corporate America's interest in alternative dispute resolution has
become more intense in the last few years. This has been especially truein the realm of employment disputes. The regulatory impact of lawssuch as the Americans with Disabilities Act and the Civil Rights Act of1991 has certainly hastened this movement. With more categories ofprotected classes, stiffer restitutionary provisions and more "plaintiff-
friendly" civil-procedure modifications, it is little wonder that many
human resource executives are re-evaluating the feasibility of alterna-fives to litigation.
Arbitration has been adopted by many organizations, especiallysince the encouragement provided by the Supreme Court in the
case) Other organizations have been mindful of potential pitfalls incompulsory arbitration systems and have focused on more consensual
processes such as mediation. Those who carry the mediation message tocorporate management know that there is a reflexive response frequent-ly expressed about its use. This is the often stated belief that organiza-
tions do not need
to perform the role of mediator.2 In the wordsof one executive: "Why should we pay someone to do that when we
have employees who would make excellent mediators?"
by Mark R. Sherman
The author is an associate pro-
fessor of management at the
University of Houston in Clear
Lake, Texas. He is a/sc' an
active labor arbitrator and
mediator. He would like to
acknowledge the in valuable
contribution of Brian Fleming
of the Dallas office of the AAA.
Discussions of his
work in the promotion of medi-ation first brought this issue
the author's attention. The
author also appreciates his
assistance in the preparation of
early drafts of this article.
The hi-House Neutral
On its face, this seems a reasonable
contention. If the organization is willingto devote considerable resources to find-
ing and training individuals who can per-
rganizatlons that look to mOdiátio.as an alternative to
litigation are initially more comfortable with udomeic
versions of the process. There are a host of titles and corre-sponding roles for in-house personnel who singularly perform mcdi-
story functions for an organization. 'Ombudsmen and In-house
mediators are two common variants. After analyzing the trend
towards choosing these individuals from among existing employ-ees, the author contrasts the care that usually goes into systemdesign with the haphazard methods by which these neutrals areoften selected. The author suggests that the search for a "medi8tor
the houses' could be made more effective by applying acceptederformance appraisal technology.
48 APRIL 1995
form the responsibilities of the position
competently, it may be rational to assume
that these "in-house neutrals" can apply
mediatory skills to routine conflicts that
arise in that organization. After all, in-
house neutrals possess knowledge of the
organization, its members and its culture,
that can greatly facilitate the process of
dispute resolution.
There are, however, limits to the utili-
ty of domestic neutrals. For example, itmay be unreasonable to expect them to
deal with extremely complex types of
employment disputes.3 Moreover, dis-putes that involve significant potentiallegal liability for the organization, thatconcern allegations against senior man-
agers, or that challenge valid policies of
the organization4 are examples of con-
flicts that management might want to
channel away from resolution by in-
house neutrals. Furthermore, in almost
any type of dispute, the aggrieved
employee may have doubts about the
confidentiality of communications and
tile impartiality of "neutrals" who are on
the payroll of the organizational adver-
In addressing these sorts of disputes,
the employer would be well advised to
contract with an outside provider, such as
the American Arbitration Association
(AAA), for the provision of professional
dispute resolution services.The AAA haspanels that consist of mediators (and arbi-
many with considerable experi-
ence in handling delicate employment
issues. Not only do these individuals
have the benefit of a greater presumption
of neutrality, but they also may be experi-enced in the variety of ways different par-
ties have handled very similar matters. A
dispute that may seem like a unique,
unstructured problem to an in-house neu-
tral, may instead impress the experienced
third-party neutral as routine and fairly
structured, in terms of the problem-solv-
ing approach required.
Nevertheless, these practical limita-
tions do not change the fact that in-house
neutrals can be useful components in anoverall dispute resolution system. Eventhough they cannot handle every type of
dispute, they can offer an inexpensive
alternative to external mediators for
many types of common employment dis-
Just as it is up to each organization to
define limitations on the types of disputes
that its in-house neutral can hear, it is
also up to each organization to decide on
the fundamental nature of that person's
While there is little consistency in
the application of titles to practitioners in
this arena, two distinctly different roles
are pre-eminent among the many sub-cat-egories that have emerged.5 These are the
ombudsman and the in-house mediator.
The Ombudsman's Role
The oldest and most common form ofin-house neutral is the corporate ombuds-
man.6 The position is usually a perma-
nent, full-time one, characterized by
reporting duties to high levels within the
organization. Although ombudsmen
infrequently perform formal mediations
in practice, they do use "shuttle diploma-
cy" and mediatory skills to handle inter-
nal complaints concerning issues such as
unfair treatment, management practices,
environmental concerns and harassment.7
There is anonymity and some confiden-
tiality in the process, but the substance of
a conflict is generally made known to
management so that preventative steps
can be taken to avoid similar disputes in
the future. In this way, the ombudsman
not only helps to resolve existing con-
flicts, but helps the organization with
measures that decrease the likelihood thathistory will repeat itself.
By contrast, the in-house mediator isa relatively new development that enjoys
far less empirical scrutiny. Unlike the
ombudsman, the in-house mediator usu-
ally has another full-time position withinthe organization and is used on an
ad hoc
basis to settle disputes that are referred
from other departments or business units.
Unlike the focus of the ombuds role on
both "fire fighting" and "fire prevention,"the focus of the in-house mediator is sole-
ly on "fire fighting." Since the identities
of people involved in a particular dispute
that has been referred to mediation may
be commonly known, anonymity may not
be as certain as the confidentiality of thedispute resolution process. Nevertheless,
many organizations go to great lengths to
assure the confidentiality of the process,
including requiring in-house mediators to
destroy their records once a dispute is
resolved and to report details of the reso-lution to no one. In terms of professional
organizations, the author knows of sever-
al in-house mediators and ombudsmen
who are members of the Society of
Professionals in Dispute Resolution
(SPIDR). In addition, there is a separateprofessional association that represents
the legal and practical interests of
There are limits tothe utility of
domestic neutrals.
ru :
Despite the complex decisions that
must be made in determining the role of
the in-house neutral and the breadth of
that individual's responsibilities, it is
increasingly common to make ombuds-
men or in-house mediators an integral
part of an overall dispute resolution sys-
tem. While these are welcome develop-
ments, art alarming pattern may be
emerging in relation to how these indi-
viduals are chosen to carry out these
important roles.
Eenie, Meanie, Miney, Mediator?
The professionalization of the
ombuds function means that some orga-
nizations can hire experienced in-houseneutrals from referral agencies or head-hunting firms. While there is no way of
knowing whether their experience in
another organizational context will trans-
late into effective intervention in the hir-ing organization, at least these individu-
als have a track record. On the other
hand, many organizations do not have
the resources to add another executive-level salary to their payroll. Either they
A dispute that may seem like a unique, unstructuredproblem to an in-house neutral, may instead impress
the experienced third-party neutral as routine...
must recruit internally for an ombuds-
man or look among existing employees to
identify candidates with an aptitude for
mediation. How, then, have organiza-
tions been choosing their internallyrecruited ombudsmen and in-house
While the author is unaware of anydetailed studies of managerial decision-making in this area of personnel selec-
anecdotal evidence suggests that
these choices are often made by the
wrong people, based on the wrong data,
for the wrong reasons. In the grand
scheme of organizational change that nor-
mally accompanies the introduction of
innovative dispute resolution procedures,the method of selecting in-house neutrals
is seldom a high priority. The result is
that management often resorts to infor-mal communications networks, or "thegrapevine," to obtain information about
the existence and aptitudes of various
With the focus on perceived
personality traits or isolated incidents,
corporate folklore can become more
important than real aptitude in the ulti-
mate decision on whom to recruit and
train for these important positions. Whileorganizations can initially have some luck
with these rather haphazard methods,
thismay be because there is a small cadre
of natural problem solvers within an
organization whose reputations are based
on real aptitude. Nevertheless, when this
APRIL 1995
first group of recruits suffers from "drop
out" or "burn out," the choice of their
replacements can be much less obvious.
Unfortunately for some organizations (aswell as for the integrity of the process), it
may take some time to realize that a
hunch is no way to select the best candi-
date to train and appoint as an in-house
Choosing an inappropriate employee
to serve as an in-house mediator or
ombudsman is a decision-making error
that has a number of obvious costs. Apart
from discrediting the process and the
organization's attempt to solve disputesin a positive way, there are dollar costs:
the first involves training. Conventional40-hour mediation training costs some-
where in the vicinity of $1,000 per
employee. The cost of losing the employ-
ee for a working week plus paying their
regular wage for that period can easily be
several times this amount. Specialist
training in the ombuds function generally
exceeds these amounts and is much less
Nevertheless, these are minor
costs compared to costs incurred by the
organization if inappropriate behavior by
the in-house neutral leads to retaliation
charges by an aggrieved employee. Since
very negative consequences can result
from the selection of a "loose cannon" for
the role of in-house neutral, this raises a
pressing issue. What can organizations do
to enhance the likelihood that the
employees they select will be worthy of
the training that will be invested in them,
and the responsibilities that will be
bestowed? An answer to this inquiry may
well lie in an application of behavioralanalysis techniques that were originallydeveloped to appraise employee perfor-
The Regulatory Environment
It is ironic that human resource pro-
fessionals bemoan the ever-increasing
level of regulation imposed on everyphase of the personnel function. The
irony lies in the fact that they owe their
jobs to the very regulatory web they
Without legislative encroachment,
the personnel field would entail little
more than the administration of compen-
sation and benefits. While the sense of
exasperation is often legitimate, the posi-
tive side effects of legal intervention in
workplace practices should not be over-
Apart from curbing many types of
injustice in the workplace, the regulatory
environment has caused management,

You're Reading a Free Preview

/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->