Introduction
I
have served both as an independent scholar doing field research and as an
evaluator doing work for an agency pursuant to a contract (sometimes called
contract research in the university setting). In the course of my career, I
have worked with data from the American Arbitration Association, the United
States Postal Service, the U.S. Department of the Air Force, the National
Institutes of Health, the U.S. Department of Agriculture, the U.S. Occupational
Safety and Review Commission, the U.S. Department of Justice, and JAMS. The
following scenarios reflect general lessons learned; the events described have
been to some extent fictionalized to avoid attribution to any particular agency
or provider. I have included a complete bibliography of my published work for
those who would play sleuth to match scenarios with agencies.
I
believe that this kind of research is critically important. There is increasing
privatization of justice through dispute resolution systems (Bingham 2004a;
Lipsky et al. 2003). The reality of employer one-party control over their
design raises public policy issues that are central to labor and employment law
(Bingham 2002a, 2002c, 2004b). Only systematic, rigorous, multivariate research
designs can inform the development of future policy (Bingham 2002b, 2002c;
Lipsky and Avgar 2004).
Scenario One:
Why Are You Out to Get Us?
This scenario is about work
in which you are examining outcomes in a sample comprised of individual dispute
resolution cases. Typically, researchers look at outcomes in the aggregate, in
relation to some variable of interest, like gender or race. However, that
sample of cases comes from somewhere; it may come from an individual neutral, a
group of neutrals, or a service provider. Thus, there is the risk that your
research will be construed as reviewing the performance of an individual
neutral in the sample, be it mediator or arbitrator.
People
in the field of dispute resolution are passionate about what they do. They
believe it to be holy work. They see themselves as the good guys trying to help
people work out problems and save emotional energy and money. They identify
with being peacemakers. They tend to take evaluation very personally. This is
not simply about whether a program or process is effective. A criticism of an
outcome is a criticism of the neutral. It may go to that neutral's core sense
of self. A third party service provider will present the same sort of problem,
only scaled up to the organization's mission. The people in that organization
may be passionately devoted to that dispute resolution mission and take
personally any research finding as a reflection on their work. I have literally
had people ask on a phone call, "Why are you out to get us?"
The
problem is that the average neutral thinks deeply about their practice at the
level of the individual case but thinks less deeply about the dispute system
design within which that case occurs. Often, neutrals in private practice have
a series of cases from a variety of disputants and many different dispute
system designs. For example, an individual arbitrator may do labor cases in the
public and private sector, employment cases involving highly compensated
executives pursuant to an individual employment contract, or adhesive mandatory
employment arbitration pursuant to a personnel manual. That same arbitrator may
do court-referred cases involving civil litigation. The Lone Ranger metaphor is
appropriate: the neutral rides in, resolves the dispute, and rides off into the
sunset.
Thus,
a key public relations task is to explain to the neutrals that your research or
evaluation is not about their individual performance and that results will only
be reported in the aggregate, without revealing the identity of any one
neutral. Moreover, if you are looking at patterns in pooled outcomes that might
be perceived to reflect adversely on the neutral or provider, some up-front
disclosure about the nature of the research design, hypotheses, and range of
possible findings may be in order. On the other hand, this may mean you never
get access to the data.
Scenario Two:
With Friends Like You . . .
Let us assume you got access to
data, did research, and published the results in reputable outlets after an
appropriate period of review. Let us also assume that these results create a
controversy in the press. As a researcher, you may be a staunch advocate of
dispute resolution. You may be working to improve practice, improve justice,
develop best practices in program design, and foster the development of the
field. However, your research is hard to "sound bite" with accuracy; the press
takes a complex phenomenon that is not well understood and oversimplifies it;
or, they just get it wrong.
In
this scenario neutrals and providers who have taken the high road in support of
research may find that it has come back to bite them. It is hard to set ground
rules about this. For example, in labor negotiations there is a ground rule
that there will be no press releases except by prior mutual agreement, or that
all press releases shall be jointly issued. This is difficult for scholarship;
the chief purpose of research is to build knowledge through publication and
exchange of ideas. If you cannot publish research, what is the point? For this
reason, many scientists refuse to do research for the Department of Defense
because it may become classified.
As a practical matter, it is
always advisable to give any organization that has provided data a period of
time to review the data analysis or report, respond, make suggestions, and offer
alternative explanations or theories for your results. Another possible
compromise would be for researchers who have published controversial results to
offer to have the organization participate in any press interviews on the
research.
However, savvy organizations
have a more effective response; simply explain that you have used the results
of the research or evaluation to correct the problems or improve your program.
You now have a different program from the one the researcher evaluated. This
can quickly defuse criticism.
Scenario Three:
Just Say No
Neutrals and third-party providers
sell a service. A key feature of that service is confidentiality. This, in
turn, is a critical barrier to systematic, comprehensive, quantitative field
research on dispute resolution. When you think about it, what is in it for
them? Why on earth should neutrals and dispute resolution service providers
release information that is legally proprietary and confidential? The best way
to avoid having to explain that some research result does not really reflect badly on your practice or
your roster is to never allow the research in the first place. As the debate
over the privatization of justice and fairness in dispute resolution programs
has heated up, there has also been a growing propensity among third-party
providers to "just say no" to research.
The
problem with this approach is that the debate over privatization of justice is
not simply hypothetical. People are being denied access to small claims courts
because of adhesive arbitration clauses in consumer contracts (Bingham 2004b).
There is a broad duty to the public to make the process of dispute resolution,
the rules under which it occurs, and the programs through which it is offered
as fair and just as humanly possible. It is for this reason that the California
state legislature mandated that third-party providers disclose the outcomes of
arbitration cases. In theory, this disclosure would make it possible for
researchers to analyze patterns in the cases. In reality, however, third-party
providers are not disclosing critical aspects of the cases, such as which party
won (Bingham, Sternlight, and Healey 2005). At some point, there needs to be a
compromise between confidentiality and disclosure in the public interest.
Another way around this problem is to go after the data from the end user
instead of the neutral or provider.
Scenario Four: A
Change in Administration
Let us assume you are no longer
working with neutrals or providers but are instead embarking on a relationship
with an agency or organization that is developing an in-house dispute
resolution program for workplace conflict. You believe in collaborative
evaluation design for a number of reasons. First, you feel you are more likely
to get buy in if the people collecting the data have a say in what they
collect. Second, for an evaluation to be useful to the agency, it should
include indicators that measure progress toward the agency's goals, not simply
a cookie-cutter set of variables or questions from other evaluations. Not all
dispute resolution programs share the same goals. If the agency wants to reduce
dispute processing costs, that suggests one set of measures; however, if it
wants to improve the conflict management skills of employees and supervisors,
that requires a different set of measures. So assume you allow the agency to
convene a group of stakeholders to design the evaluation with you. You work for
a year or more to reach agreement on a set of goals, variables, indicators,
instruments, and protocols to collect data. Just as you are about to roll out
the evaluation, there is a change in the leadership of the program. The new
head honcho has played no role in designing the evaluation. He or she fails to
see how it might be helpful.
Moreover,
let us assume that the evaluation attempts to use a more rigorous
quasi-experimental design, one with experimental sites and control sites, which
means that the hot new dispute resolution program will not be available to all
employees in the agency at the same time. The new program manager sees this as
delaying his or her ability to both demonstrate the effectiveness of dispute
resolution and to make progress in conflict management at the agency. The
program manager may also foresee political risks for him or herself if employees
who do not have access to the program feel this is inequitable and blame
program leadership. As a result, the program manager vetoes the evaluation and
refuses to roll out data collection.
You
have no data, no prospects of data in the future, and have just wasted a year
of your professional life. If you are a junior academic, this is a year during
which you should have been publishing. While academic institutions recognize
that it can require lead time to establish data collection for a new research project,
the failure to publish during that period can be fatal to an academic career.
And now there is no prospect for publishable research out of this
collaboration. It is an ugly scene and illustrates the risks of embarking on
evaluation as a means of data collection if you are a junior academic. Remember:
this can happen to you, and it can happen at any time. It can happen to senior
researchers after a decade-long collaboration, with little or no notice. It
happened to me twice.
One
counter-argument that is sometimes persuasive is to emphasize the positive
effect that the mere existence of an evaluation project has on a dispute
resolution program. Employees are more likely to believe the program is neutral
and credible if an outsider is watching. It also enhances their sense of voice
to have the agency ask them for their assessment of their experience in the
program. Federal Interagency ADR Working Group Best Practices emphasize the
desirability of evaluation. The Government Performance and Results Act requires
performance measurement. These arguments may persuade a new manager; or they
may not.
Scenario Five:
Sabotage
Let us assume you have strong
top-down support for data collection. You have designed the evaluation
collaboratively with an agency stakeholder group. You roll out data collection
and distribute all the instruments and wait for the data to start arriving in
the mail. And you wait. And you wait. There is no data, or only a trickle of
data. Your records indicate you have a very low response rate, perhaps 10
percent. This means your sample is not usable; it cannot tell you anything
meaningful about the program. Any analysis you do of this small sample might
produce results that are simply a reflection of selection bias; they may only
be the views of a skewed handful of participants in the program. What has
happened?
It
is sabotage. For reasons you failed to anticipate, there are people in the data
collection chain who fear the results of the evaluation. For example, let us
assume that you are evaluating mediation as an alternative to the traditional
Equal Employment Opportunity (EEO) process for complaints of prohibited
discrimination. You have data collection points both after the mediation
process and after an EEO counselor attempts to conciliate the complaint.
Essentially, this might permit a comparison of disputant satisfaction with
mediators as compared with EEO counselors. Given what we know about the
persistent high satisfaction with the mediation process and mediators, we can
anticipate ex ante that EEO counselors will be the losers in this comparison. These EEO counselors
engage in passive aggressive behavior; they simply do not collect the data.
Depending on the size of the agency and the number of data collection points,
it may require more enforcement than managers are capable of doing to ensure
data collection.
But,
you say you had a representative stakeholder group, including EEO counselors,
participate in the design! Why are they not cooperating now? There are a
variety of reasons. Certainly, data collection adds to people's daily workload,
and without understanding and support for that burden, this may present
problems. For example, the people you expect to collect data are being
evaluated not on whether they get it to you but whether they meet primary
agency productivity goals. Another explanation is that, with strong top-down
support for both the dispute resolution program and the evaluation, it was not
politically correct or safe for them to express their fears about the results.
It is simpler to keep heads down and then ignore this as another meaningless
bureaucratic directive.
In
another scenario, you may have an agency with multiple units and ADR programs,
each with a different dispute system design. You have designed a uniform system
of data collection for all the programs so that you can systematically compare
their effectiveness. However, that comparison might make some alternative
dispute resolution (ADR) program managers look good at the expense of others.
What is in it for them? Hence, you have another case of passive resistance to
data collection.
In
yet another scenario, employees responsible for data collection are aware of an
impending need to reduce force and reallocate resources or budget. If they
engage in data collection, and their program does not fare well in the
comparison, they may lose lines and resources, making it even harder for them
to meet what they perceive to be their responsibilities. Particularly when
complaints of discrimination are concerned, EEO program managers may have very
strong views of justice and of the need for meritorious complaints to make
their way through the adversarial system to provide a deterrent to
discriminatory behavior. They may resent the new resources put into ADR
programs, arguing that if they were given additional resources, they could
produce better results.
Sometimes,
sabotage is not passive-aggressive; it is aggressive-aggressive. For example,
sometimes the unions at a workplace may advocate boycotting data collection. A
dispute resolution program that is part of an EEO complaint handling process
may be exempt from collective bargaining under Alexander v. Gardner Denver and thus adopted unilaterally by
the employer. The union may view it, at least initially, as undermining their
position as the elected employee representative. Over time, in my experience
unions come to see these programs as an asset, and indeed, as a second and sometimes
more appropriate bite at the apple than a traditional grievance under the
collective bargaining contract. Nevertheless, a union-ordered boycott of data
collection can result in selection bias in your sample.
It
is important to build incentives and safeguards into the evaluation design. For
example, the United States Postal Service (USPS) decided to use voluntary rates
of participation in mediation as one criterion for evaluating managers and
deciding on their bonuses. This created an incentive to support the program and
data collection. The USPS also explained to EEO counselors that exit surveys
would be reported in the aggregate, by zip code and not office, and that the
survey would not be used in any way for performance evaluations. However, to
create an incentive to cooperate, the USPS indicated that, depending on the
evaluation, it was likely to change some EEO jobs to ADR counselor jobs, and
when that happened, existing EEO counselors would get priority in bidding on
those jobs. These jobs became desirable, as they had more positive
connotations.
Scenario Six:
Oh, Yeah, We Changed That . . .
We have a program evaluation. It is
up and running. We have data collection. We have a good response rate and we almost have a usable sample. Somewhere
along the line, program administrators forget about the evaluation and keeping
you in the loop. They decide to change dispute resolution service providers,
and in the process, change mediation models. This means that you are no longer
accumulating data on the first model; unbeknownst to you, the data you receive
now addresses the second model. For example, the original program design may
call for outside neutral mediators. Because this costs money, the agency, in an
effort to cut the budget, decides to train in house employees to become
mediators. The limited data suggests that employees will perceive the fairness
of mediation by co-workers somewhat differently than they will view the
fairness of an outside neutral. This change in program design may have a
significant impact on the results of the evaluation. If you report results
without taking this into account or controlling for it, it may damage your
reputation.
If
your evaluation is longitudinal, and if you have consistent data collection,
this can be an opportunity for a natural experiment instead of a cause for
alarm. The key is getting a big enough sample size before the change is made.
Scenario Seven:
What Is an "Exogenous Variable"?
You are
collecting data on complaint filing rates before and after the program was
implemented, another kind of natural quasi-experiment. The agency takes some
significant managerial action unrelated to the merits of the program, for
example, a big reduction in force due to a Congressional budget freeze or
continuing resolution. Typically, a reduction in force (RIF) is associated with
a spike in complaint filings in the various available grievance procedures in a
dispute system design. No one bothers to tell you about this RIF. Remember to
check carefully on changing conditions on the ground in your agency before you
report program results. If you report the complaint spike without controlling
for the RIF, you will damage the credibility of the program.
Again, in longitudinal studies this event may be
an opportunity rather than a problem. For example, September 11, 2001, saw the
demise of the Chambers Street Post Office, which was destroyed with the World
Trace Center complex.
Moreover, October 2001 was the period during which there was a terrorist
incident involving anthrax through the mail. Ultimately, anthrax was found to have contaminated facilities throughout the New Jersey
and District of Columbia regions, and in many instances, employees were asked
to take the antibiotic Cipro as a protective measure after one postal worker
sickened and died. These events now provide an opportunity for a time-series
study of the impact of a terrorist act on an ADR program and its filing rates.
Scenario Eight:
"We Can't Collect That; We'll Get Sued"
You want to collect a dataset that
you can use for rigorous, refereed, social science research. For you, important
variables include the race and gender of disputants and mediators. However, the
agency says, "We can't collect that; we'll get sued. Some lawyer might get
discovery of the surveys and results in a class action. How would it look if
white women like the program a lot more than black men?"
There
are other political arguments against collecting demographic data. In one case,
a previous researcher poisoned the well. The researcher was studying the
results of workplace drug testing. He or she received access to drug test
results along with demographic data linked to those results. The way this story
was told to me, the researcher published a study showing that one demographic
group, African Americans, tests positive at a more frequent rate than another
group, for example, Caucasian women. This gave rise to a major controversy in
which the unions, representing aggrieved workers, filed various complaints
against the employer. As a result, the agency categorically refused to collect
demographic information as part of any evaluation. Alternative partial
information on demographics may be available from the Census Bureau statistics
on the demographic pattern where the workplace is located, or in the EEOC
annual report that every employer submits. However, this information is not
linked to program outcomes.
Scenario Nine:
Low Response Rates
Another political problem may arise
when data collection has yielded low response rates, for example, 10 to 20
percent. You may do preliminary analyses on this dataset and find that the
results are promising and positive. You share these results with management, at
the same time cautioning that there is a low response rate so you cannot
release the results publicly. The problem is the standards of some evaluators
are regrettably not the same as those for peer review in academic journals.
Many evaluators will release these findings, and the agency will happily take
credit for a successful program. If you argue about the reliability of the
sample and selection bias, they may respond that you are working for them, not
for the greater academic community, and this is good enough for government
work. The solution here requires up-front planning; the evaluation contract may
need to contain a provision for a minimum response rate.
Scenario Ten:
"But These Results Make Us Look Bad"
Closely related is the scenario in
which evaluation results are somehow negative or perceived as politically
sensitive by the agency. Assume that you prepare a careful report and submit it
to the agency. The response rate is good, and you have faith that the results
fairly reflect the performance of the program. However, program administrators
are convinced that if they release these results, they will jeopardize the
program or its budget. They thank you for your report and promptly consign it
to the circular file. They do not use your report to make program improvements
or changes to address the issues you have identified. Distressed, you ask for
permission to turn the report into an article for publication. However, you do
not have an express right to publish the results in your contract, and the
agency tells you not to.
You
have two choices. If the agency is part of the state or federal government,
your report may be a public record under the state or federal Freedom of
Information Act. You may either request its release yourself or ask a friend to
obtain it. They may argue it is a draft and not a final, approved report, and
you will also permanently destroy your relationship with this agency.
Alternatively, you can simply view yourself as an evaluator for hire, and one
who has fulfilled the terms of the contract; you can just walk away. Moreover,
if the organization is a private sector one, there is no freedom of information
right to access their records.
To
avoid this problem, it is best to negotiate an exclusive right to publish the
results of your evaluation into the contract terms. It is good client relations
to also negotiate a provision giving the agency a reasonable period to review
the draft publication, for example, thirty to sixty days.
Scenario 11:
"It's Too Good to Be True"
The
last political problem I have to share happens after the evaluation is
complete. You publish and share the results, and someone says, "It's impossible;
it's too good to be true." This happened to me in South Korea at the first ever
national conference of the National Labor Relations Commission after I
presented the USPS results. I am not sure what you can do other than offer
others the opportunity to inspect the databases. The bottom line is that a
mediation program, properly designed and implemented, can have a substantial
positive effect on the workplace.
Conclusion
Field research and evaluation of
employment dispute resolution programs is a demanding and challenging
enterprise. However, many of the scenarios I describe can be avoided by
negotiating the terms of the project carefully at the outset. The great
majority of problems I have encountered are not matters of ethics; they are
simply pragmatic responses to the practical and political implications of data.
By having a candid and thorough conversation up front, many of these problems
can be avoided.
Acknowledgments
Much of the research described here
and listed in the Works Consulted was supported in whole or in part by a grant
of general support to the Indiana Conflict Resolution Institute at Indiana
University's School of Public and Environmental Affairs from the William and
Flora Hewlett Foundation's Conflict Resolution Program. I wish to thank its
former program director, Terry Amsler, as well as Cynthia J. Hallberlin,
formerly of the USPS, for their advice and assistance on the institute's
research program. Any errors are my own.
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