Is Your Alternative Dispute Resolution Program a Flea-Dip?

This article first appeared in the
Spring 2002 edition of the New York State Bar Association’s Labor &
Employment Law Newsletter and is republished with permission.
This article is courtesy of HR.com, a website committed to
making the lives of HR professionals and business
managers
easier.


Your dog Fifi has fleas. The veterinarian recommends a flea-dip. Fifi is immersed in a chemical bath and *poof*, Fifi is flea-free. Everyone is happy: Fifi feels great, the vet gets paid, and you are relieved that you’ve eradicated the fleas. Seems like the ultimate win-win; except slowly, the pests creep back, undetected…


Like a flea-dip, alternative dispute resolution programs are often regarded as a single dose cure-all. The intuitive appeal of ADR and the anecdotal evidence of program success make ADR seem a panacea — just establish the policies and procedures, and ADR will work its magic with your employees. Given the rush to develop ADR programs as an answer to skyrocketing litigation costs in virtually every possible venue, it might seem premature to be reflecting on their potential demise. However, early success does not guarantee longevity. Employment ADR simply hasn’t been around long enough to determine its staying power in the courts or in the workplace. In the long run, the critical factor that will make or break employment ADR is employee choice.


Whether the employment ADR program is mandatory or voluntary, employees always have some degree of choice in determining the process through which their disputes are resolved. Even in a mandatory program, an employee may choose to avoid addressing a dispute, which is likely to make it more difficult and more costly to resolve later. Alternatively, the employee may challenge the ADR program in court (successful or not, the organization is back in litigation). In the meanwhile, the employee withholds his or her commitment and contributions to the organization either by reducing productivity or by leaving its employ. If employees may choose traditional dispute resolution processes in lieu of their ADR program and they exercise that right, the ADR program is rendered useless.


The more willing employees are to choose to participate in the ADR program, the greater the opportunity to reduce legal costs and improve employee relations and productivity. Furthermore, when employees choose to participate, the issue of enforcing pre-dispute arbitration becomes moot. ADR success depends on employees making choices that are consistent with ADR program goals.


Although employees may willingly choose ADR when the program starts, they may revert back to more adversarial options as time goes on. Consider the organization that added a voluntary mediation component to its grievance procedures. In large numbers, employees, union officials, and managers agreed to try mediation. Satisfaction with both the process and neutrals exceeded expectations and the program was deemed highly successful. After three years, however, the pests are beginning to creep back in. A senior union official who was initially supportive of the program recently related that he is increasingly reluctant to recommend mediation to members because he displeased with the way they have been treated by program administrators.


Changing Employee Choices


“The key to success of any new process, system, or strategy is implementation. And that’s about people. People have to execute. They have to support the new system or it will go nowhere.”


For an ADR program to be successful, employees must change their behavior: they must choose to address their conflicts in the new way that the organization deems desirable. Employees choose if they will initiate a complaint, if they follow the new procedures for doing so and if they will actively participate in a process unfamiliar to them to resolve their disputes.


In order to achieve desired changes in behavior, W. Warner Burke (1992) asserts the importance of recognizing both transactional and transformational variables. Using Burke’s framework, it is easy to appreciate the initial success of ADR programs and the potential for their demise.


Transactional Variables


“Transactional variables include policies, procedures, rewards, communication, and organizational structure. They are transactional in that change occurs primarily via relatively short-term reciprocity among people and groups. In other words, you do this for me and I’ll do that for you.”


By and large, organizations have embraced the transactional components of the change effort by establishing and communicating policies and procedures to employees. Whether or not ADR programs are being linked with performance appraisals is unknown, although anecdotal evidence suggests that such rewards, if they exist, are limited to legal department employees. The initial success of the employment ADR programs can be explained by the extent to which program designers address transactional variables.


Because transactional variables are short-term in nature, however, they alone cannot sustain behavioral change.


Transformational Variables


In contrast, it is far less common for transformational variables to be given genuine attention in the design and implementation of employment ADR programs. Burke suggests that “transformational variables refer to areas in which change is likely caused by interaction with environmental forces and which require entirely new behavior sets on the part of organizational members. Transformational variables include an organization’s mission, strategy, vision, leadership, and culture.” In other words, if you want to change employee behavior, you need to do more than set the rules.


Since “organizational change stems more from environmental impact than from any other factor,” long-term success depends on modifying the environment in which these behaviors occur. Ensuring that employees will choose ADR long-term requires that changes be made to support the new, preferred ways of thinking and interacting with others in the workplace.


Only those who also address transformational variables in designing ADR programs create the conditions necessary to ensure that employees will choose to use the ADR program.


Ten Ways to Go Beyond a Flea-dip


Since change must occur at both levels to be successful, below are five transactional and transformational ways to enhance the longevity of your organization’s ADR program.


Transactional


1. Build ADR into the Reward System


That which gets measured gets done, and if there’s pay involved, all the better. Implicitly, every organization conveys its values through what it chooses to pay for. Unless the company’s money is “put where its mouth is,” employees may perceive their ADR program as another management fad. This is the ultimate transactional variable. If you want a certain behavior from your employees, make sure you are measuring and paying them for it by adding it to the performance appraisal process.


In addition, review the performance appraisal system for compensation that is based on goals that are inconsistent with the ADR program. In his ingenious article, “The Folly of Rewarding for A While Hoping for B,” Steven Kerr points out that employers often not only fail to reward for desirable behaviors, but inadvertently reward undesirable behaviors as well. If you want supervisors to support a company-wide open door policy, don’t penalize them when their subordinates knock on the boss’s door.


2. Repair Reputation


Collecting information about employee perception of the ADR program can provide critical feedback for program designers. Find out if the workforce really thinks every aspect of the ADR program is as wonderful as you do. If you had a dispute, what course of action would you choose?


What you may find by doing this sort of “due diligence” exercise are opportunities to enhance employee experiences with the ADR program. Choosing to use the ADR program will depend upon more than perceptions of mediator competence and neutrality. For example, everyone the employee encounters in the course of resolving his dispute must convey an attitude of respect. When an administrator uses power-based principles when setting up the mediation, the employee will likely be dissatisfied with the program even if the dispute is ultimately resolved to his satisfaction. Employees who use the system first provide feedback to the company rumor mill that affects the choices other employees will make. Be sure they’re saying good things about the entire program, not just the particular ADR process — such as mediation or ombuds — used to resolve the dispute.


3. Improve Communication and Feedback


Communication in the form of feedback is necessary to implement a successful ADR program. Periodically, the employer needs to assess how much the employees know about the program. Are usage levels influenced by lack of information, or inaccurate information about the program? Does program knowledge vary among employee groups? Will your ADR program be more successful if you simply get better at getting the word out? By determining the disparity between what employees actually know and what they need to know, program designers can target specific groups with specific messages that will enable employees to make informed choices. It will also better prepare them to be informed participants in the program.


4. Provide More Training and Support


Sometimes there is a disparity between what employees are capable of doing and what they need to be able to do to feel confident that they will be successful in an unfamiliar situation. Like the ADR program itself, training is typically viewed as a single dose cure-all. Unfortunately, the transfer of learning from a single day’s worth of training to the workplace is minimal and decreases over time.


Effective training takes place periodically and includes support systems (such as ombuds, mentor, peer counselor) to guide employees as they try out their new skills.


In times of stress, an individual will resort to his or her dominant response. Effective training can institute collaboration as a replacement for less productive dominant responses to conflict. If training was not effective, an agitated employee in the throes of a dispute will respond as he or she did prior to training. This is likely to be a win-lose approach that does not support ADR program goals.


5. Expand Eligibility: Types of Disputes


Many programs limit eligibility for ADR to disputes that involve legally protected rights, effectively discouraging participation except for those cases in which litigation and agency filings are likely. If participation in your ADR program is voluntary, expanding eligibility to all types of workplace conflict will remove a critical barrier to using the ADR program.


An employee in distress will not have to evaluate whether or not she has the right to come forward. In addition, she will not return dissatisfied to the workplace because her complaint, although not rights-based, was unheard.


Also, by addressing interests rather than positions, the company will minimize the employee’s tendency to reframe interest-based conflicts as statutory violations. Including interest-based conflicts in the ADR program makes early resolution possible and maximizes the wide range of benefits possible in an ADR program.


Transformational


1. Expand Eligibility: Types of Employees


An employer often limits participation in ADR programs or offers differing levels of ADR services depending on the category of employee, such as hourly workers or salespeople. Treating disputes differently for different categories of employees works against efforts to institutionalize an ADR program. It sends a message that creates resistance and jeopardizes the culture change necessary for long-term ADR program survival. Since management is typically an excluded group, the very people needed to recommend the program and to inform and support its users are prevented from using it themselves. It is difficult to advocate for a program from which one is barred. When the ADR program applies to everyone in the workplace, employees tend to use their newly acquired skills outside the program, transforming the culture of the organization.


2. Match the Customer Service Culture


Similarly, treating disputes differently for customers and employees works against efforts to institutionalize a program. When customers are dealt with on an interest-based level, but employees are not, confusion, distrust, and resentment are created. For employees to choose ADR, ensure that the same collaborative message is communicated to everyone.


3. Getting Input = Increasing Buy-in


The establishment of any new program in the workplace, without opportunity for employees to influence the change, constitutes the exercise of formal power. Because the exercise of formal power increases informal resistance, ADR programs that have simply been “presented” to employees have a built-in obstacle to employee usage.


By being consulted and giving input, employees overcome resistance to a change as significant as resolving their differences in a new way. Resistance is more than opposition. Opposition comes in the form of objections that can be anticipated and addressed. Resistance is about the fears underlying the change: the unstated fear of losing control and of being seen as incompetent in the new situation.


4. Hunt for Sacred Cows


Many program designers accept the notion that ADR programs must be consistent with the corporate culture, yet attempt to determine fit on their own. A better way to maximize fit is again through employee involvement in ADR program design. Not only will employee input ensure cultural consistency, but also it can reveal and remove hidden aspects of the culture that would otherwise keep dispute resolution adversarial.


Brandt and Kreiger (1996) use the term “sacred cow” to refer to outmoded beliefs, assumptions, and practices that inhibit the acceptance of change. Simply put, there is a tendency to hold on to what worked in the past, even when it is no longer applicable or appropriate. If something is done because it’s always been done that way, it’s probably a sacred cow. Prior successes with resolving problems in the workplace will create win-lose sacred cows.


Giving employees the opportunity to identify practices that are unproductive will create a change-ready environment and will facilitate acceptance and long-term usage of the ADR program.


5. Integrate ADR with Mission and Vision


According to Beckhard and Harris (1987), “The greatest single threat to successful change results from inadequate early attention to defining the desired end states for the change.” To define the desired end states for an ADR program, there must be consistency between the program and the organization’s mission and vision. When employees understand the goals of the ADR program and how they relate to their company’s mission and vision, they are better able to understand the behaviors that are desired.


Furthermore, “misperception of the implications of a change for one’s own future role and responsibilities is a major cause of resistance to change.”


Making the connection between the ADR program and the organization’s mission and vision enables employees to determine how they and their new choices fit into the future of the organization, further reducing resistance to the program.


Conclusion


“If you build it, they will come” has been the mantra of the employment ADR movement ever since the first programs were implemented. This idea captures the belief that employment ADR programs offer benefits so compelling to employees that all a company need do is set one up and employees will participate. Indeed, that seems to be the case, so far.


Then again, many had this belief about dot-com companies. At first, customers did show up in droves, and Internet businesses became overnight success stories. After a while, however, users realized that the Web sites were not providing the kind of experiences they wanted and went elsewhere to meet their needs. The rest is stock market history. The message is clear.


To ensure the longevity of a program, users must choose to participate, long after the fanfare is gone.

HR.Com

This article was provided by HR.com.
HR.com(TM) is a website committed to making the lives of HR professionals and business managers easier. HR.com offers eight communities to address the specialties within human resources, including a section on Conflict and Dispute Resolution in our Labor Relations community. Within each community, users can access articles and research, find vendors/consultants, buy products or services and join discussion groups to learn from their peers.

                        author

Melissa Janis

Melissa Janis is president of Dovetail Solutions, LLC., a company specializing in managing workplace conflict. She provides mediation, conflict coaching, training, ADR systems design, and organization development consulting services. MORE >

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