VI. THE IMPACTS OF ALTERNATIVE DISPUTE RESOLUTION ON WORKPLACE OUTCOMES

Discussion

Lisa Blomgren Bingham
Indiana University

    Lipsky, Seeber, and Fincher (2003) recently provided a major advance in our understanding of systems for managing workplace conflict. These systemsare increasingly important features of the landscape of labor and employment relations. I bring to this discussion a particular frame: power. Control over dispute system design makes a fundamental difference in both what form a workplace conflict management system takes and how it functions (Bingham 2004). The key distinguishing feature in new workplace systems
is that employers design them unilaterally, without union participation. They are designed by employers in order to meet employer interests.
    Thus, the cutting edge research questions are (1) what forces, interests, or incentives cause employers to adopt these systems; (2) what forces, interests, or incentives cause employers to design a system with particular features (peer panels, mediation, or employment arbitration); and (3) how do employer design choices affect outcomes for employees? As Lipsky and Avgar (2004) suggest in their recent excellent commentary, we need larger scale, multivariate analyses of the outcomes of these systems. What we need to know is hard to learn because these are private, confidential justice systems with largely secret outcomes. There is no transparency or accountability. Despite this methodological challenge, each of these excellent papers succeeds in advancing our knowledge about these cutting edge questions.
    Professor Alex Colvin tackles one of the hardest problems to get at empirically, that is, what are the outcomes for employees? He makes a valuable contribution in beginning to document variation in employer designs and in how employers make design choices regarding allowing employees to have representation. Also, he makes a hugely valuable contribution in describing variation in grievance rates, discipline appeal rates, employee win rates, and percentage of disciplinary decisions reversed. There are two points that would benefit from further discussion. First, we need to exercise caution before we generalize to the U.S. workplace from this sample. One-third of U.S. workers are in the public sector, which is much more heavily unionized and which has dispute resolution programs shaped by the constraints of public law (i.e., the federal Administrative Dispute Resolution Act of 1996). Second, we must exercise caution when we attempt to compare employee win rates and percentage of discipline overturned across these systems. The problem is that not just process is at play here; substance is, too. Substance in this case is the nature of the decision standard. In a union grievance procedure, the decision standard is just cause and the burden of proof is on the employer. In a non-union setting, employment is at will and an employer may dismiss an employee for any reason, including an arbitrary or capricious one, provided that there is no violation of other public law, such as that prohibiting discrimination based on race, sex, age, or disability. Thus, when we examine the percentage of discipline decisions overturned, we cannot attribute variation entirely to the nature of the procedure and procedural inequality. Decision standard is a substantive contract term. These discipline cases may be apples and oranges. Without a union, we need to know what decision standard the employer is using.
    Avgar and Kwon propose a new theoretical model to help us research and understand why employers make particular dispute system design choices; they distinguish between forces from within and without the workplace. Their key insight is an important and valuable contribution. Specifically, they suggest that new ways of organizing work in high-performance work systems may in turn be associated with new forms or categories of conflict that require new processes and systems (i.e., dispute resolution). They argue persuasively that the shifts in workplace organization are creating uncertainty that gives rise to new characterizations of conflict. It is unclear what new rules are emerging or how they might arise in the absence of a union; however, whether the substance in dispute is truly different, or only how employees frame it, is an open question. The problem is that, under rights-based dispute systems, employees may characterize their claim as discrimination„for example, to obtain access to that rights-based complaint procedure. In a new system design, they need no longer do so. It may be more accurate to talk about a shift from rights-based grievance systems to interest-based dispute system designs as fostering a change in discourse at the workplace. In addition, for this model to be most helpful, it needs to account for why traditional, bureaucratic workplaces such as the U.S. Postal Service (USPS) are also adopting dispute resolution programs.
    Mahoney, Klaas, and Wheeler provide a tight, clear, useful, and valuable to our understanding of how design choices may affect employee outcomes through a policy-capturing experiment that shows that decision makers matter. Just as there is wide variation in how arbitrators might decide the same hypothetical case, so too, we learn here that both human resources (HR) managers and peer panels differ from students. This method is our best proxy for real world field data (shielded from disclosure by confidentiality rules of employers and third-party alternative dispute resolution providers). The authors could make our understanding more complete with a discussion of theories from organizational behavior, such as procedural justice and attribution theory that might help explain variation within subjects across conditions. For example, peers may be more influenced by employee work history because it suggests an external attribution. Procedural justice may help explain the condition of employer compliance with procedures.
    Moreover, there may be other explanations of the results in this report. Peers may give less weight to claims of discrimination because they consider themselves to have independent knowledge of whether the company discriminates. A peer might be reluctant to conclude they are favored at the grievant's expense. The USPS has a 5 percent informal discrimination complaint rate; this means 95 percent of all employees do not file complaints of discrimination. Their perspective could differ. In contrast, HR managers have a duty to minimize liability and the last clear chance to avert a complaint. Similarities between HR managers and peer panels may show a learning effect; peers are advised by HR, and they acquire experience and judgment. It is unclear whether students are good proxies for line managers, although they are clearly naïve decision makers; however, these are simply a few thoughts on how to explain or understand the many rich results in this report. Overall, the authors make a fine contribution.
    These three papers represent the direction that research needs to go if we are to better understand a development with significant national public policy implications. Justice at the workplace is fundamentally important in our society. To understand how to preserve and protect it, we must understand how new employer systems for managing conflict affect employee rights and interests.

References

Bingham, L. B. 2004. "Employment Dispute Resolution: The Case for Mediation." Conflict Resolution Quarterly, Vol. 22, nos. 1 and 2, pp. 145-74.

Lipsky, D. B., and A. C. Avgar. 2004. "Commentary: Research on Dispute Resolution: Toward a New Paradigm." Conflict Resolution Quarterly, Vol. 22, nos. 1 and 2, pp. 175-74; 189.

Lipsky, D. B., R. L. Seeber, and R. D. Fincher. 2003. Emerging Systems for Managing Workplace Conflict: Lessons from American Corporations for Managers and Dispute Resolution Professionals. San Francisco: Jossey-Bass.