A theoretical framework for exploring the feasibility and fairness of using mediation to address bullying and harassment in UK workplaces.

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Abstract

Positioning itself within policy debates on the best way to deal with disputes in UK workplaces and the (potential) resultant increased interest in mediation, this thesis draws on literature from law, philosophy, psychology and management to add to the growing, but largely theoretically-underdeveloped research on workplace mediation. In this research, mediation refers to a voluntary and confidential process where parties to dispute seek a mutually agreed outcome. This process is facilitated by an impartial third-party mediator. The research offers an empirically-informed theoretical framework exploring the extent to which the use of mediation to deal with bullying and harassment is appropriate. In asking whether mediation is appropriate, it argues that it is necessary to consider whether its use is not only feasible but also fair.Using Rawls’s (2001) theory of justice as fairness to structure the discussion and focusing on cases involving sex, race and sexual orientation it constructs an argument for the use of fairness as a guiding concern for an understanding of mediation grounded in an appreciation of public values and notions of social cooperation. It explores tensions between the nature of mediation and of bullying and harassment to question the extent to which an emphasis on cost/efficiency and empowerment in mediation rhetoric may obscure questions of the privatisation and individualisation of systemic and structural problems. Within this discussion theoretical and practical questions are identified and are then explored through the use of a mixed method research design comprised of a small-scale questionnaire (N=108), interviews (N=20) and focus groups (Four groups, N=16). Samples were purposively recruited and consisted of those over 18 years old with six month’s work experience in a UK workplace (questionnaire/focus groups) and external workplace mediators (interviews). Answers to the questions are offered in the form of a framework comprised of a theoretical model and a practically-orientated schematic. It is argued that the reconciliation of potential conflicts between mediation and bullying and harassment are found in a greater understanding of the way mediation operates in practice. This understanding is guided by an appreciation that different standards of reasonableness apply to different behaviours and that individuals, organisations and the courts have differing levels of responsibility for setting and upholding these standards. In meeting this responsibility it is important an organisation is seen as a party to the mediation process since a threat to fairness arises not from privatisation per se but from a personalisation of problems of organisational and/or societal significance. Rather than reject the use of mediation in such situations it suggests the notion of ‘tailored privatisation’ offering a compromise between the concerns of privatisation and the purported benefits of mediation.

Layman's Abstract

Despite its presence on the peripheries of the policy agenda for a number of years, the use of workplace mediation to deal with disputes in the UK has been relatively low. However recent changes to the law relating to the bringing of Employment Tribunal claims may potentially provide the momentum for an increase in the use of workplace mediation that has thus far failed to materialise. In this research, mediation refers to a voluntary and confidential process where parties to dispute seek a mutually agreed outcome. This process is facilitated by an impartial third-party mediator. If organisational interest in the use of mediation grows, so too should knowledge and understanding about the ways it is, and should be, used. This knowledge and understanding in the academic field is currently sparse since there is a limited (but growing) body of research to draw on.As bullying and harassment are often said to be particularly suitable for mediation, this research takes such cases as its focus and explores the reasons why this may be the case. In so doing it addresses the question of the extent to which mediation is an appropriate way of addressing workplace bullying and harassment. Here appropriate is taken to mean that its use is not only feasible but also fair. It focuses on cases involving sex/gender, race and sexual orientation to explore whether bullying and harassment should be treated differently from other workplace disputes and indeed from each other. It does so on the basis that there are historical and social reasons for making such distinctions and considers these reasons in light of the rhetoric surrounding mediation and its focus on cost and efficiency and individual empowerment. A questionnaire and focus groups with those over 18 years old with at least six months’ work experience in a UK workplace and interviews with external workplace mediators were conducted to explore understandings of bullying and harassment and gather views on how it should be dealt with. The findings were explored and constructed into a framework which seeks to incorporate theoretical understandings and perceptions of fairness and justice into practical understandings and operation of workplace mediation. The research concludes that bullying and harassment should be treated differently to other disputes and should not be seen as individual, personal problems but rather as organisational (and potentially societal) ones and therefore an organisation should not shift responsibility for bullying and harassment onto the individuals involved. This shifting may be the case if mediation is used inappropriately and was seen as particularly concerning where the behaviour is symptomatic of organisational culture and/or societal prejudices and stereotypes. Therefore it argues that an organisation must be considered as a party to the mediation process but that confidentiality can be operated through ‘tailored privatisation’ which preserves aspects of individual empowerment whilst potentially helping to challenge and possibly change organisational practice as well as personal opinion. The skill and integrity of the mediator were seen as crucial to ensuring appropriate use.

Keyword(s)

Bullying ; Equality; Fairness; Harassment; Workplace mediation

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