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by Mark R. Sherman
The author is an associate professor 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 extensive work in the promotion of mediation first brought this issue to the author's attention. The author also appreciates his assistance in the preparation of early drafts of this article.
Corporate America's interest in alternative dispute resolution has become more intense in the last few years. This has been especially true in the realm of employment disputes. The regulatory impact of laws such as the Americans with Disabilities Act and the Civil Rights Act of 1991 has certainly hastened this movement. With more categories of protected classes, stiffer restitutionary provisions and more "plaintifffriendly" civil-procedure modifications, it is little wonder that many human resource executives are re-evaluating the feasibility of alternafives to litigation. Arbitration has been adopted by many organizations, especially since the encouragement provided by the Supreme Court in the Gilmer case) Other organizations have been mindful of potential pitfalls in compulsory arbitration systems and have focused on more consensual processes such as mediation. Those who carry the mediation message to corporate management know that there is a reflexive response frequently expressed about its use. This is the often stated belief that organizations do not need outsiders to perform the role of mediator.2 In the words of one executive: "Why should we pay someone to do that when we have employees who would make excellent mediators?"
The hi-House Neutral On its face, this seems a reasonable contention. If the organization is willing to devote considerable resources to finding and training individuals who can perform 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, inhouse 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 utility of domestic neutrals. For example, it may be unreasonable to expect them to deal with extremely complex types of employment disputes.3 Moreover, disputes that involve significant potential legal liability for the organization, that concern allegations against senior managers, or that challenge valid policies of the organization4 are examples of conflicts that management might want to
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 corresponding roles for in-house personnel who singularly perform mcdistory functions for an organization. 'Ombudsmen and In-house mediators are two common variants. After analyzing the trend towards choosing these individuals from among existing employees, the author contrasts the care that usually goes into system design with the haphazard methods by which these neutrals are often selected. The author suggests that the search for a "medi8tor in the houses' could be made more effective by applying accepted erformance appraisal technology.
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channel away from resolution by inhouse 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 adversary. 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 has panels that consist of mediators (and arbitrators), many with considerable experience in handling delicate employment issues. Not only do these individuals have the benefit of a greater presumption of neutrality, but they also may be experienced in the variety of ways different parties have handled very similar matters. A dispute that may seem like a unique, unstructured problem to an in-house neutral, may instead impress the experienced third-party neutral as routine and fairly structured, in terms of the problem-solving approach required. Nevertheless, these practical limitations do not change the fact that in-house neutrals can be useful components in an overall dispute resolution system. Even though they cannot handle every type of dispute, they can offer an inexpensive alternative to external mediators for many types of common employment disputes. 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 role. 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-categories that have emerged.5 These are the ombudsman and the in-house mediator.
The Ombudsman's Role
There is anonymity and some confidentiality 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 conflicts, but helps the organization with measures that decrease the likelihood that history will repeat itself. By contrast, the in-house mediator is a relatively new development that enjoys far less empirical scrutiny. Unlike the ombudsman, the in-house mediator usually has another full-time position within the 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 solely 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 the dispute 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 resolution to no one. In terms of professional organizations, the author knows of several in-house mediators and ombudsmen who are members of the Society of Professionals in Dispute Resolution (SPIDR). In addition, there is a separate professional association that represents the legal and practical interests of ombudsmen.8
There are limits to the utility of domestic neutrals.
The oldest and most common form of in-house neutral is the corporate ombudsman.6 The position is usually a permanent, 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 diplomacy" and mediatory skills to handle internal complaints concerning issues such as unfair treatment, management practices, environmental concerns and harassment.7
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 ombudsmen or in-house mediators an integral part of an overall dispute resolution system. While these are welcome developments, art alarming pattern may be
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emerging in relation to how these individuals are chosen to carry out these important roles.
Eenie, Meanie, Miney, Mediator?
The professionalization of the ombuds function means that some organizations can hire experienced in-house neutrals from referral agencies or headhunting firms. While there is no way of knowing whether their experience in another organizational context will translate into effective intervention in the hiring organization, at least these individuals have a track record. On the other hand, many organizations do not have the resources to add another executivelevel salary to their payroll. Either they
A dispute that may seem like a unique, unstructured problem to an in-house neutral, may instead impress the experienced third-party neutral as routine...
must recruit internally for an ombudsman or look among existing employees to identify candidates with an aptitude for mediation. How, then, have organizations been choosing their internally recruited ombudsmen and in-house mediators? While the author is unaware of any detailed studies of managerial decisionmaking in this area of personnel selection, 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 normally 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 informal communications networks, or "the grapevine," to obtain information about the existence and aptitudes of various candidates. With the focus on perceived personality traits or isolated incidents, corporate folklore can become more important than real aptitude in the ultimate decision on whom to recruit and train for these important positions. While organizations can initially have some luck with these rather haphazard methods, this may be because there is a small cadre of natural problem solvers within an organization whose reputations are based on real aptitude. Nevertheless, when this
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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 (as well as for the integrity of the process), it may take some time to realize that a hunch is no way to select the best candidate to train and appoint as an in-house neutral. 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 disputes in a positive way, there are dollar costs: the first involves training. Conventional 40-hour mediation training costs somewhere in the vicinity of $1,000 per employee. The cost of losing the employee 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 accessible. 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 behavioral analysis techniques that were originally developed to appraise employee performance.
The Regulatory Environment
It is ironic that human resource professionals bemoan the ever-increasing level of regulation imposed on every phase of the personnel function. The irony lies in the fact that they owe their jobs to the very regulatory web they assail. Without legislative encroachment, the personnel field would entail little more than the administration of compensation and benefits. While the sense of exasperation is often legitimate, the positive side effects of legal intervention in workplace practices should not be overlooked. Apart from curbing many types of injustice in the workplace, the regulatory environment has caused management,
and human resource management in par- ment-related decisions based on BARS ticular, to "pick up its game." Lax and depends on the demonstrable validity of subjective policies have been tightened the scales that an organization develops up and made more fair and more consis- for a particular job. Therefore, most orgatent. In the realm of fair employment nizations seek outside assistance in this practices, the importance of the Uniform five-step process. What follows is a greatGuidelines on Employee Selection Pro- ly simplified explanation of how BARS cedt4rcs'° cannot be underestimated; In are commonly generated.' roughly two decades since their promulThe first step involves making use of gation, they have had an impact on job descriptions and job knowledge by almost every type of employment-related incumbents and their supervisors to idendecision that management makes. In an tify broad performance "dimensions." effort to demonstrate compliance, organi- These are general types of behavior that zations have responded to the Guidelines an individual's performing the job would by developing increasingly sophisticated routinely be required to exhibit. For methods of collecting and analyzing data example, a performance dimension for a about job requirements and job perforpolice patrolman might be "Securing mance. A typical example of this technology is the use of Behaviorally Anchored Accident Scenes." The second step is Rating Scales (BARS). As the name sug- identifying specific behaviors or gests, these are scaled descriptions of job- "anchors" for each job dimension that related behaviors. Organizations develop epitomize various degrees of perforand use these measurement-devices pri- mance. To use an example in the same marily as a performance appraisal format. genre, "promptly informs dispatcher of Performance appraisal has tradition- important developments at scene" and ally been one of the more problematic "leaves essential equipment in patrol car" areas in human resources. While organi- might be typical examples of favorable zations exhibit a wide array of approachand unfavorable behavioral anchors, es to appraising performances most have respectively. The third step involves moved away from primitive, trait-based matching anchors to performance dimenapproaches. it is less and less common for sions using the opinions of a second employees to be judged on the basis of group of incumbents and supervisors. At subjective criteria such as their "attitude" this stage the organization begins to or "appearance." Increasingly, organizadevelop a preliminary ranking of behavtions have resorted to more valid and ioral anchors from least to most desirable defensible approaches to appraising employees. After their emergence and for each of the proposed dimensions. refinement11 in the 1960s and '70s, many Following this "re-translation," the fourth organizations experimented with BARS step consists of selecting the performance despite the rather cumbersome processes dimensions and corresponding behavand persistent paradoxes'2 involved in ioral anchors that appear meaningful in setting up such systems. The decision of light of various statistical analyses. The many organizations to stick with these last step is the actual development of systems over the years is no doubt operational rating scales from this data. because of their ability to address not This involves a number of important only evaluative aspects of performance determinations on the part of the organiassessment, but developmental aspects as zation, such as the weighting that should well. In other words, a BARS system eval- be assigned to the various dimensions, as uates an employee's past performance well as the weighting to be assigned to more objectively, while at the same time behavioral anchors within them. The sheds light on an employee's aptitude for measurement device itself consists of a specific future tasks. This predictive set of behavioral anchors for each dimendimension should interest organizations that are contemplating incurring signifi- sion that are stacked along a vertical concant costs in the implementation of a new tinuum, with best-to-worst ranked top-todispute resolution initiative involving in- bottom. The descriptive statements are in turn anchored to weighted numeric valhouse neutrals. The development of behaviorally ues along the continuum. The "rater" is anchored rating scales is a complex pro- then able to translate the most typical or cess that is normally the responsibility of expected behaviors to a quantitative meaindustrial psychologists or human sure for each of the dimensions utilized. resource management consultants. The measures are tallied and an overall Furthermore, the defensibility of employ- "score" is produced.
Management often resorts to... "the grapevine," to obtain information about the existence and aptitudes of various candidates.
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While the ombudsman's role requires a hefty dose of investigative skills, mediation skills are generally an integral part of any in-house neutral's skill set. Yet there is a mystique surrounding mediation that can confuse individuals faced with the prospect of selecting a neutral who will be performing at least some mediatory functions. Various authors tell us that mediation is an art form, an educational process,'4 psychotherapy,15 a face-saving device,Ib a Choosing an inappropriate preventative measure,17 a proactive exercise,18 a cult employee to serve as an ina house mediator or ombudsman of personality,19 and evenIt "headbanging" session.2° is a decision-making error that is not unusual in the has a number of obvious costs. author's experience, to _________________________________ hear human resource managers express relief and. even astonishment at the simplicity of mediation once they have participated in the process. Perhaps it is because much of the literature seems to contribute to the mystification of the process. Perhaps it is because confidentiality prevents participants from discussing precise details of what happened in any given mediation. Whatever the reason, the fact remains that the job of mediator is not unique. As is the case with any other job, it can be subjected to a BARS mode of "deconstruction." Of course there is one major problem. Even if your organization currently uses a BARS format for performance appraisal, there is probably very little data on job dimensions or specific behaviors generally associated with performing the role of in-house neutral. That is because few, if any, organizations have enough in-house neutrals to justify the commitment of resources necessary to develop a rating scale for the job. This situation raises an interesting irony. On the one hand, organizations have a perfectly good selection technique available in the form of BARS On the other hand, they do not have the "critical mass" of incumbents needed to economically apply the technology to the development of an effective selection device. This is where familiarity with NIDR's Interim Guidelines for Selecting Mediators might be of assistance. In the 1980s, parties to various types of disputes began to experiment with mediation on a large scale. While factors like settlement rate or the perception of parties had been accepted criteria for judging success within the framework of conventional labor-management rela52 APRIL1995
tions, the growth of the field demanded more sophisticated evaluation techniques. The pioneering work of Christopher 1-loneyman in the late 1980s specifically addressed this need. His early search for "standardized evaluation scales" yielded seven parameters of mediator effectiveness.21 These efforts saw him assume the directorship of what became known as the "Test Design Project." With the support of organizations such as SPIDR and NIDR, and even the National Science Foundation, the participants in the project built on the earlier efforts. The result was the Interim Guidelines for Selecting Mediators.22 Over 30 scholar- and practitioner-contributors to these Guidelines focused on commercial, community and family mediation, identifying 16 separate areas of skill, knowledge and ability that mediators exercise in the performance of seven distinct tasks. In effect, they performed a job analysis for the job called "mediator." The group identified the following elements of skill, knowledge, and ability: Reasoning Analyzing Problem Solving Reading Comprehension Writing Oral Communication Non-verbal Communication Interviewing Emotional Stability Sensitivity integrity Recognizing Values Impartiality Organizing Following Procedures Commitment These contributed to a mediator's ability to perform the following seven tasks: Gather Background Information Facilitate Communication Communicate Information to Others Analyze Information Facilitate Agreement Manage Cases Document Information Ultimately, in a process that closely paralleled the modus operandi of developing BARS for a job in an organization, the design-project participants formulated seven performance dimensions upon which mediator performance could be evaluated. These were: Investigation Empathy
Impartiality Generating Options Generating Agreements Managing the Interaction Substantive Knowledge23 In the same fashion that a BARS appraisal system anchors observable job behaviors to corresponding performance dimensions, the guidelines anchored the behaviors exhibited by mediators in an ascending scale according to perceived effectiveness. For example, descriptions of anchors for "Investigation" ranged from "Asked neutral, open-ended questions," to "Asked few or mostly irrelevant questions." The initial objective was to have scales that could be used to evaluate role plays of mediations. Mediators hoping to serve (or continue serving) in a particular alternative dispute resolution program would then be required to submit to this sort of evaluation as part of the selection (or evaluation) process. On-going objectives of the Test Design Project include validating the scales and developing them into a "standardized set of products"24 that can be used in meeting the needs of evolving dispute resolution systems. Unfortunately, in the meantime, organizations have to improvise if they are going to harness these developments to help them in their search for existing employees with mediatory skills.
Despite Honeyman's characterization of the Guidelines as a mere "instruction manual" meriting further validation efforts,25 there can be little doubt that they provide a wealth of information for human resource managers who are interested in adapting a BARS approach to the search for in-house neutrals. The author concedes that mediation skills are only one subset of the overall skill repertoires required by various types of in-house neutrals. Nevertheless, it is evident that such skills are a central part of the "common body of knowledge" for these practitioners. To explain by comparison: It may not be surprising that ombudsmen, in general, spend little time in face-to-face mediation, whereas it would be surprising to learn that the ombudsman in any given organization was not competent to conduct such a session. Moreover, close scrutiny of the tasks, skills, knowledge and abilities cited in the Test Design Project reveal few skills that either an ombudsman or in-house mediator could function without. In view of the promis-
ing validity of this job analysis data, how can organizations put it to use selecting in-house mediators? A good place to start is by assessing the role the in-house neutral will be performing in the overall dispute resolution system. Whatever title an organization uses for the neutral, those designing the program need to make fundamental decisions in advance about such issues as the neutral's reporting duties, investigative powers and jurisdictional scope.26 Only then can a determination be made regarding the sorts of tasks, skills, knowledge and abilities that will be required. In other words, the first step is to prepare a rough job description for the neutral who is to be recruited internally. At this stage, the next step depends on the human resource management practices prevalent in the organization. For example, if an organization employs a formal post-and-bid system of filling internal vacancies but has no BARS appraisal system in place, it might be useful to focus on candidates who excel in jobs that involve many of the same tasks as mediation. Even in these organizations, less sophisticated approaches to performance appraisal may evaluate the possession of skills and the performance of duties that overlap with some of those cited in the Interim Guidelines. By contrast, if an organization de-emphasizes internal recruiting, but has a history of using behavioral rating techniques, it might be able to apply the performance dimensions contained in the guidelines more directly. In this case, the approach would involve disaggregating the behavioral anchors and offering them to a group of incumbents in jobs requiring the performance of similar tasks. These individuals could then re-translate the behaviors into job-specific ones that represent effective
The use of ADA processes is becoming increasingly popular in corporate America. Diamond Shamrock, a regional refiner and marketer of petroleum based in San Antonio, Texas, launched a dispute resolution program called Dialogue last year. Above, corporate headquarters.
DISPUTE RESOLUTION JOURNAL 53
and ineffective behaviors for jobs they recognized Those designing the program within the organization. In either event, the essential need to make fundamental decisions in advance about such step in identifying an internal pooi of candidates is issues as the neutral's reporting finding existing jobs that duties, investigative powers require incumbents to exhibit behaviors, perform and jurisdictional scope. tasks and use skills normally associated with good mediators. Few would deny that choosing among individuals such as these, who have demonstrated their competence in the building blocks of successful mediatory skills, is certainly preferable to relying on the grapevine and corporate folklore to make these sorts of selections.
ENDNOTES Gilmer V. Interslate//oJznson Lane Corp. 111 S.Ct. 1647 (199fl.
2 Similarly, this sentiment is apparent in the widespread experimentation with peer grievance review, which is essentially a form of in-house arbitration. Techniques for selecting peer grievance review panel members will not be discussed here, although the approach advocated by the author could be adapted for use in their selection as well. For example, in the recently concluded E.E.O.C. Mediation Pilot Project external mediators were pro. hibited from dealing with allegations of disparate impact. Note the distinction drawn between "humanistic" and "legalistic" approaches to defining legitimate subjects for grievances in non-union dispute resolution systems. George Bohiander and Harold White, "Building Bridges; Non-Union Employee Grievance Systems," Personnel 65 (July 1988) pp.62.66. Apart from "ombudsmen" and "in-house mediators," the author has encountered additional categories of intermediary in other dispute resolution programs. These include "Employee Advisors," "Employee and "Employee Advocates" Representatives." Most of these individuals have the primary responsibility of acting as counselors for individual employee grievances at various stages of the program. However, since some of these roles lean more towards representation of employee interest rather than genuine neutrality, the author cautions against assuming that the same skill sets are required for all types of intennediary roles. "The corporate ombudsman is an adaptation of the public ombudsman office first made popular in Scandinavian countries in the 1950s and elsewhere in the 'óOs. For a thorough account of this genesis see Stanley V. Anderson, The Onthuds'neu Papers; American Experience and Proposals (Berkeley: Institute of Government Studies, University of California, 1969). For an account of the corporate ombudsman, in particular, see Isadore Silver,"The Corporate Ombudsman,' Haruard Business Review (1967). The term "ombudsman" is used in this article to denote individuals of either sex holding this position. The author felt the term "ombudsperson" was cumbersome. A summary of a recent survey of corporate ombudsmen in America is contained In Ziegenfuss et al., "Corporate Ombudsmen," l'ersonnel lonrnal 54 APRIL1995
(March 31, 1989) pp. 76-79. 'The Ombudsman Assn., l'.O. Box 7(X), Arlington, VA 22207. "The most relevant work in this area applies to the identification of behaviors associated with successful mediators (see below). Uniform Guidelines on Employee Selection Procedures, 29 CFR, sec. 1607. 1 For an early account of work in this field see P. Smith and L.M. Kendall, "Retranslation of Expectations: An Approach to the Construction of Unambiguous Anchors for Rating Scales," Journal of Applied Psychology 47 (1963> pp. 149-55. Refinements are explained in J.1'. Campbell, M.D. Dunnette, R.D. Arvey and L.N. Hellervick, 'The Development of Behaviorally Based Rating Scales," Journal of I%pplied Psycholo,e,i,' 57(1973) pp. 23-27. '2 See R.S. Atkin and El. Conlon, "B.A.RS.: Some Theoretical Issues," Academy of Maitagein'izf Review, 3(1978) pp. 119-28. ' Considerable license is taken by the author in his effort to make this explanatkm as straightforward as possible. Pot example, anchors and dimensions are generated almost contemporaneously and submitted to various panels of analysts whose suggested patterns of association are subjected to statistical scrutiny. See, for example, the methodology summarized in W.C Borman and W.R. Vallon, "A View of What Can Happen When Behavioral Scales are Developed in One Setting and Used in Another," Journal of Applied l'svchology 59 (1974) pp. 197-201. 14 Harold 1,. Enarson,. "Mediation and Education," Labor Law lour,al, 7 (August 1956) pp.466-71. ' William H. Knowles, "Mediation and the Psychology of Small Groups," Labor Low Journal. 9 (August 1958) pp. 780-84 "' Douglas F. Johnson and W.L. Tullar, "Style of Third l'arty Intervention: Face-Saving and Bargaining Behavior," /ou,-nal of L.rperii,e'n/al Social Psi,cliologw, 8 (1972) pp. 319-30. Paul Prasow, "l'reventative Mediation: A Technique to Improve Labor Relations," Labor Law buena! 1 (August 1950) pp. 866-911. " Steven Briggs and Daniel Kays, "What Makes Mediators Effective?" Labor Law Journal, 40 (August 1989) pp. .517-20. " Arthur Meyer, "Function of the Mediator in Collective Bargaining," Industrial an4 Labor Relations Rcv:L'w (April 1954) pp. 159-65. 2" Ahnaad Karim and Richard Pegnetter, "Mediation Strategies and Qualities and Mediation Effectiveness," Industrial Relations 22 (Winter 1983) pp. 105-24. 21 Honeyman. "On Evaluating Mediators," Ne'otiation Journal 6 (January1990) pp. 23-36. 22 lnferim Guideli:ies for Selecting Mediators (Washington, D.C.: N.I.D.R., March 1993). 2 Honeyman. "A ConsensuS on Mediator's Qualifications," Negotiations Iiiriiuil 9 (October 1993) pp. 295-309. 21 Id. at 301. 2 Id. at 296. 2" In making these important determinations the practice of "Benctimarking" or sharing best practices has much to offer. For a list of organizations that arc willing to share their experiences in ADR design contact Robert Meade, vice president for program development, AAA, NY.