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[MUSIC PLAYING] SPEAKER: The following is a presentation of the ILR School at Cornell University. ILR, advancing the world of work.
[MUSIC PLAYING]
ALEXANDER J.S. COLVIN: Hello, welcome to today's webcast on the "Workplace and Conflict Resolution-- Past, Present, and Future." This is part of our ILR series of webcasts that celebrate the 150th anniversary of Cornell University, and the 70th anniversary of the ILR School. I'm Alex Colvin, the Martin F. Scheinman Professor of Conflict Resolution here at the ILR School. And I'll be your host today for the next hour during this webcast.
ILR has a long history of research and teaching about conflict resolution in the workplace. Today our Scheinman Institute on Conflict Resolution serves as the center for our activities relating to workplace conflict resolution. In today's webcast, you're going to hear from a number of experts at ILR and at the Scheinman Institute about various aspects of conflict resolution.
You'll hear about Alternative Dispute Resolution-- what we call ADR-- ranging from topics such as arbitration, the use of third-party neutrals to resolve disputes between parties in a conflict, to mediation where the third-party neutral helps facilitate a negotiated resolution by the parties of the dispute. We'll talk about things such as organizational conflict management systems, the use of techniques like interest-based bargaining and labor management relations. And we'll even extend to talk about non-workplace conflict resolution in emerging areas like environmental conflict resolution.
To kick things off, we're going to go back and talk a little about the history of conflict resolution at ILR and our Scheinman Institute and what the current role is today. We're going to hear from a couple of leading voices in this area. First, from Martin Scheinman, Mediator, Arbitrator, and ILR alumnus, and also the person who endowed the Scheinman Institute. And then also Professor David Lipsky, a leading expert on the study of conflict resolution in the workplace and beyond, who was also the Director of the Scheinman Institute.
They're going to take us back to our history, the past of conflict resolution at ILR, and then, also, bring us up to the present day and the new activities we're focused on and the new challenges in workplace conflict resolution. So let's turn it over to Martin Scheinman and Professor David Lipsky.
MARTIN F. SCHEINMAN: Before I even came to ILR, I had a sense that I somehow thought that solving problems was a good idea. And I came here, in part, to do that. And then over the course of my coursework-- which you search out what you're interested in-- and lo and behold, I found collective bargaining, I found arbitration, I found discussions about how people solve problems, and absolutely informed what I decided that day in class-- probably my sophomore year-- that this is what I intend to do. Ironically, the Director of the Scheinman Institute, Professor Lipsky, was my professor. And now the world has come in circles.
And I was watching it, I was observing it, I was believing in it-- both the idea that parties should solve their own problems and that they could use a third party who could do that. And I thought, this is really what I was meant to be. I thought maybe I'd be a lawyer, and I am trained as a lawyer, but I always knew that that wasn't really where my passions were. So directly, my schooling determined exactly what it is that I do for a living.
There was an Institute on Conflict Resolution before Laurie and I decided to endow it, but it wasn't really in the workplace. That wasn't its focus. It was doing other kinds of dispute resolution. And I believe that the students of the next generation should have the opportunities I had when I was here in the '70s, and some had in the '80s, because the coursework had become more international-- very important stuff-- but we had lost some of the things that I had learned in the profession I wanted.
So our tagline is educating the next generation of neutrals and practitioners. By practitioners, we mean advocates, people who do human resources, people who do bargaining, people who represent employees, people who represent employers. So the Scheinman Institute was to do two things-- to help the students do that, and also, to re-engage in the external community for our outreach programs-- what we used to call extension-- so that people would have an opportunity to have specific courses that we designed for people who were neutrals and practitioners.
I think there is no doubt that the idea of alternate dispute resolution has becoming completely embedded into everyone's thoughts. People know that litigation and courts are too expensive, too time-consuming, too formal. People are looking for ways to resolve the disputes, whether they be business disputes, landlord/tenant disputes, marital disputes, partnership disputes, and, of course, employment disputes. Employments-- labor and management is the one that I traditionally spend more time on, but every single employer and every single employee has the possibility of eventually having a problem, whether it's a problem about compensation, issues of sexual harassment, which we're dealing with, issues of a more diverse population, where inevitably, there's going to be more difficulty. So we need more forums and more experts to help parties, help institutions through these kinds of problems.
So the next 50 years may not be exactly the same that it will be confined to labor and management in the sense of union and management-- although there'll be plenty of that. I think that's a mistake when people speak about that, especially in certain pockets like New York State where we're here because they're a very highly unionized workforce. But even when there is not-- even I now, who had never did it before-- but because the students have prodded me to learn more about it-- do a good deal of employment mediation, a good deal of employment arbitration where there is no union, but the parties, nevertheless, have a conflict and they don't want to go to court.
As we look to the future, the next 50 years is going to be just like the last 150 years for Cornell, which Cornell has always responded to what's necessary and what's needed and what society needs. That's our public engagement. And there is no doubt in the next 50 years we're going to be asked to be more peacemakers, more people who understand how to resolve disputes in a peaceful way, both neutrals and practitioners who are studied and knowledgeable how to use those processes. That's what the Scheinman Institute will be doing in the next 50 years, long after Laurie and I are no longer engaged in it.
DAVE B. LIPSKY: It was critical at the founding of the school. If you put yourself back in 1945 when the school was founded, we were coming out of the depression when the union movement really began to grow significantly and during World War II when we were all concerned about conflict resolution, about preventing strikes that interfered with the war effort. So during World War II, the federal government formed the War Labor Board and began to promote arbitration and mediation as a means of resolving labor disputes.
So at the start of the ILR School, resolving labor disputes was a principal function of the school, and we recruited a number of early faculty members, such as Jean McKelvey, who played a critical role in shaping the post-World War II labor relations scene, including the role of arbitration and mediation.
Well, from the start the school played a significant role in training arbitrators and mediators, but confined to labor relations. We did not extend our domain outside labor relations, say, to employment relations more generally. But I mentioned Jean McKelvey, and Jean was a critical player in training neutrals after World War II, and she started some of the key arbitrator training programs here in the '60s and the 1970s. Many of the arbitrators who are successful today in labor relations were trained by Jean McKelvey and others, including Alice Grant and other members of the faculty during that period. So education and training for professionals in the field has always been a key part of what the ILR School does.
The history of what we've done in conflict resolution and dispute resolution went through a transformation in the 1980s and 1990s, and this institute was formed in 1996 in recognition of the transformation that had occurred over the previous 10 or 15 years at that time. The major break came when the techniques of arbitration, mediation, and other third-party approaches to resolving disputes moved from the union sector to the non-union sector. Then we moved from labor relations into employment relations more generally.
And we generally refer to that division, that break, as the alternative dispute resolution revolution. What occurred is that increasingly non-union, private employers, as well as some public employers, were using arbitration, mediation, fact-finding, and other third-party techniques for resolving disputes applied to the non-union workforce. That development prompted the development of this Institute. And later, of course, Marty Scheinman came along and endowed us and we became the Scheinman Institute.
So now, in the current period, we have kind of a dual responsibility. We train people to do work in labor relations, the unionized sector, and we train people to do work in the non-union, employment relations sector. That's the major expansion of the school's responsibilities.
ALEXANDER J.S. COLVIN: [AUDIO OUT] of workplace conflict resolution at ILR and how the world has changed and what we do here at ILR has changed with it. As you listen to this, I'm sure, like me, you've had many questions that you'd like to learn more about. Please do send in your questions as we continue on with the webcast. We'll gather them up and later on we'll answer some of those questions, or at least as many as we can get through during the time that we have.
One of the themes that comes out of the discussion so far is that labor relations conflict resolution was one of the key early focuses of the ILR School. But that's something that continues to be an important issue even in the changed workplace of today. We see workplace conflict resolution being central to some of the major issues being debated today. We can think of issues like teacher evaluation and tenure, a key part of the school reform debates that have been going on. We also saw this fall, in the context of the crisis around Ebola, nurses' unions launching protests to ensure proper safety and health in how they were dealing with the treatment of Ebola patients.
Even in this changed world, labor relations conflict continues to be a very important set of issues, and it's important to be able to understand how best to address conflict in that setting. To talk a little more about this, I'm joined now by Sally Klingle, who's Director of Labor Management Relations here at the Scheinman Institute. Welcome, Sally.
SALLY KLINGLE: Thank you.
ALEXANDER J.S. COLVIN: Sally, what are some of the current issues in labor relations conflict resolution that we're seeing in the workplace today?
SALLY KLINGLE: Well, the traditional conflicts remain over wages and benefits and working conditions. But, as you said, there's also an increasing focus on professional issues in education and in health care, and also on the constituent groups who are served by labor relations, so patient care, student achievement. And even in the manufacturing sector, we see interest in environmental issues and actions outside of the workplace.
At the same time, there's issues being raised outside of collective bargaining, especially in first contract disputes, where workers and employers are having a hard time developing a bargaining relationship. We see a lot of issues being raised around wage theft, worker misclassification wages and benefits without a collective bargaining relationship. So, for instance, the Walmart and fast-food workers movement has been pushing for higher wages, even though they don't yet have collective bargaining.
ALEXANDER J.S. COLVIN: Something we hear a fair bit about is interest-based bargaining. Can you tell us a little about what's going on in that area?
SALLY KLINGLE: Interest-based bargaining techniques and processes have been around for a long time. But these days, they're a lot more sophisticated and a lot more integrated into the regular collective bargaining relationship. So there's no longer such a separation between interest-based bargaining and traditional bargaining.
We do see a rise in the desire for collaborative bargaining relationship and using a lot more transparent information sharing, et cetera. Ford at the UAW, for instance, just famously negotiated a long-term contract using an interest-based bargaining approach. But in health care and in education, in particular, we see a lot of work on using those techniques, not just in bargaining, but also to deal with problem solving on issues in the workplace.
ALEXANDER J.S. COLVIN: How have things been affected by the decline in union representation? We certainly don't have the level of unionization we had back in the 1950s today. How has that changed what's going on in conflict resolution?
SALLY KLINGLE: Well, interestingly, even though we still have 14 million workers unionized, and a lot of collective bargaining going on, there's also in non-unionized workplaces an interest in having negotiated relationships. So, for instance, in states like Texas or Arizona, maybe, where there's no public sector collective bargaining under a statute, we still see employers and unions engaging in formal negotiations through a meet-and-confer, or a handshake-bargaining arrangement, and signing contracts and even submitting their contract disputes to voluntary arbitration.
ALEXANDER J.S. COLVIN: Are there any trends that you see cutting across both the union and non-union workplaces today?
SALLY KLINGLE: Yeah, I think there's an increased emphasis in frustration with unresolved interpersonal conflict. So this might be conflict that arises from normal functioning of the workplace-- task conflict, or goal or decision-making conflict. It might also be due to cultural differences, to perceptions of bias. But there's an increasing frustration with letting these conflicts fester or go unresolved, and a lot more attention being paid to actually getting in and resolving interpersonal conflicts.
ALEXANDER J.S. COLVIN: Are there any particular techniques that work well for resolving these kind of conflicts, these interpersonal things, the different kind of conflicts in the workplace?
SALLY KLINGLE: Well, in addition to sometimes using an outside arbitrator or a mediator in a more traditional approach, we also see things like peer mediation where co-workers are trained to be mediators and engage with their co-workers in helping them resolve their disputes. We see things like conflict coaching where individuals have a chance to go talk to somebody about how to resolve their conflicts on their own.
We see things like-- I just forgot what I was going to say. We see things-- in addition to conflict coaching, peer mediation. We see a lot more training is what I wanted to have mentioned. A lot more training going on on how can we engage in respectful civil conversations that can lead to dispute resolution.
ALEXANDER J.S. COLVIN: And that kind of training could be something that's not just for the neutrals, but for more broadly in the workforce?
SALLY KLINGLE: Most definitely. A lot of this work falls on human resources offices, and so human resource professionals are increasingly getting training in conflict resolution skills, in addition to bringing in more traditional mediators into the workplace to work with them on interpersonal disputes.
ALEXANDER J.S. COLVIN: Great. Thanks so much, Sally. That's very helpful. Sally is going to be staying with us, and, later in the program, will be helping me answer some of your questions. So do please get those questions coming in, and we'll work together to try and answer them as best as we can.
Something that's already, I think, been clear from our discussion is the key role of high-quality third-party neutrals in making dispute resolution procedures work. Good arbitrators and mediators are central to successful arbitration and mediation. This is something we know historically when we look back to the system of labor arbitration that developed to help resolve conflicts in our unionized workplaces in the period following World War II. Labor arbitrators developed a profession, a cadre of professional neutrals respected by both sides, that was a very effective mechanism for resolving disputes.
Now we know that there's plenty of need for labor arbitrators going forward with our over 14 million workers unionized in the United States. But there's even more need for good third-party neutrals with a range of new types of disputes we're seeing in the workplace-- individual employment rights claims, even interpersonal claims, non-workplace disputes. We're in an era where we're going to need to see a whole new generation of neutrals arising. Our labor arbitrators tend to be a relatively senior group in terms of experience, and many of them are approaching the retirement point. We're going to need to replace them.
But many people ask, how do I become a neutral? How do I get into this area? Well, we're going to turn to a couple of experts from the Scheinman Institute who are going to help us understand some of those issues. We're going to start by hearing from Rocco Scanza, who is our Executive Director here at the Scheinman Institute. He's going to talk about some of the things we're doing with students in terms of classes and extracurricular programs to help students learn more about the dispute resolution field.
Then we're going to turn to Richard Fincher, practicing arbitrator and mediator, and also a member of our Scheinman Board of Advisors, who's going to talk about the process of becoming a neutral, the development process that one needs to go through if one wants to become a successful arbitrator or mediator. So let's turn it over to Rocco Scanza and Richard Fincher to hear a little more on these topics.
ROCCO MICHAEL SCANZA: The ILR School is offering an increasing number of courses which focus on an alternative dispute resolution. I have the privilege of teaching our first ever course in mediation, and a second course, which I developed, which we call the Dispute Resolution Practicum. Both of these courses are also cross-listed with the Cornell Law School.
At the core of both courses are opportunities for students to engage in realistic and, we believe, intellectually challenging mediation and arbitration exercises. We refer to these exercises as scrimmages. And many instructors across the country teach mediation and arbitration by employing in-class exercises and group activities. We thought here at Cornell that we could enhance the learning approach by conducting scrimmages with student teams from other schools, leading universities and law schools.
For the most part, these scrimmages rely on video-based technology, so that student participants do not have to leave their respective campuses. One recent example was our mediation scrimmage with Ohio State. The participants were based in Columbus, Ohio, and Ithaca, respectively. And a mediator conducted the live exercise from his office in Phoenix, Arizona. In 2015, we're planning a major live event in New York City with student teams from some of the most prestigious law schools and universities, all engaged in ADR scrimmages.
Let me tell you about one other student opportunity that we're proud of, and that's our writing program that is jointly sponsored by the American Arbitration Association and the ILR School. Now the AAA has made a dramatic commitment to promoting the use of mediation throughout the US and abroad. Their effort coincided with the development of my mediation course.
As a final project in the class, each student has the opportunity to write on a mediation-related topic of personal or professional interest. The top papers have been submitted to the editors of the Dispute Resolution Journal, which is the oldest and one of most respected publications in the dispute resolution field. As our webcast today is focused on the past, present, and future of alternative dispute resolution, these students and their activities represent the future of the field.
RICHARD D. FINCHER: The potential for this field is huge. The profession, the whole field of dispute resolution has exploded in the last 10 years. But I would say that it's just beginning. There are so many more applications for mediation and arbitration in this world, that it's a wonderful skill to have. But it's also a very honorable profession and one that has real potential for people to be successful.
Well, I think there are several steps for someone who wants to become a neutral. First, of course, is to obtain the basic education-- to take a certificate program, to go to a graduate school, to have a foundation, a theoretical foundation of what the field is about. But that's only the beginning. The next step is to get experience. And you get experience as a mediator typically through a community program. My advice is that most neutrals who want to become mediators need to do at least 50 of these community cases before they really have a comfort in the skill.
The next step beyond that is to really become an intern or to start shadowing a neutral, meaning a mediator or an arbitrator who is established. It is amazing what you can learn from someone who is an established and professional neutral along the way. The next step I would recommend for people is to join professional associations. There are numerous associations of both mediators and arbitrators out there. The one that I'll discuss right now is the Association on Conflict Resolution, which is a group of mediators and arbitrators. It's an open professional association that has an annual conference. So joining these associations, attending their conferences, getting to know the leaders, is a significant step.
And I think the last advice I would give to someone who's thinking about becoming a neutral is to consider how they would become visible in the field. It doesn't matter how experienced you are, it doesn't really matter how good you are as a mediator, you have to be visible. You have to be willing to write an article, write a book, become a leader in an association, somehow to become visible to the market, to the parties who are selecting you, in order for you to be successful. So those are probably four particular suggestions I would have someone who is interested in becoming a neutral.
ALEXANDER J.S. COLVIN: Thanks for those comments from Rocco Scanza and Richard Fincher. Now we're going to turn things over to you and try to answer some of your questions about conflict resolution in the workplace. Remember to keep sending those questions in, because we'll answer some more questions at the end of the program today. I want to start off with a first question from one of our viewers.
Is there a difference in dispute resolution solutions using the public sector as opposed to the private sector? That's a great question. We find that there's both similarities and differences. Some of our basic techniques in arbitration, mediation work equally well in the public and the private sector. But there are a lot of differences between the two settings. Some of those relate to differences in the legal frameworks between the two settings and some also relate to just differences in practices-- what the parties tend to do.
It's important to recognize there are things that we'll see a lot in the public sector, like the use of interest arbitration to help the parties get to a contract, that we don't see as much in the private sector. But there are certainly areas where one sector can learn from the other sector. Certainly, something like the use of mediation as effective technique in resolving of grievances, we've seen both evidence of that in the private sector and the public sector, and certainly, it is a transferable kind of practice.
Another question that we've received relates to what exactly is this interest-based bargaining thing we've been talking about, and what are the differences between that and traditional-based bargaining? Sally, do you want to answer that question?
SALLY KLINGLE: Yeah, the main difference between the two approaches is that in a more traditional positional approach to bargaining, the parties make proposals or demands for change, and take an opening position and then trade concessions toward some sort of midpoint, a little bit of a tit-for-tat, back and forth. In an interest-based approach, the parties try to, instead, formulate a shared problem that they've agreed to work on, explore a variety of solutions, they tend to share a lot of information, and explore each other's interests in how the solution will be selected. So in an interest-based approach, it's usually much more information intensive. It's much more problem-solving focused as opposed to one party or the other making demands or asking for concessions.
ALEXANDER J.S. COLVIN: Another question from a viewer relates to the question of whether you have to be a lawyer to work in the conflict resolution area. This is a topic that I think is quite important to think about in a broader sense as well, that over time we've seen higher and higher proportions of arbitrators being lawyers. Certainly, some of that is because arbitration is being used more to resolve things like statutory claims. But we're also seeing that in, for example, the labor arbitration area dealing with contract-based disputes.
Certainly, from a research standpoint, we don't see strong evidence that there's a necessity being a lawyer for certain kinds of conflict resolution, things like labor management disputes. However, as our workplaces have become more legalized, as our conflicts are more legalized, we do see more lawyers doing conflict resolution work, but that's not to say that only lawyers can do conflict resolution work. Sally, do you want to chime in a little on this?
SALLY KLINGLE: Yeah, in fact, what I hear from practitioners, from employers and unions, is that they value not so much the legal training in a mediator or an arbitrator or some other neutral, they value their experience and knowledge of the industry that they're working within and their basic ability to help parties create relationships.
ALEXANDER J.S. COLVIN: Great. And additional question relating to the role of technology expanding the abilities of third-party neutrals being able to reach out to all the parties involved in disputes. That's one of the topics that is really cutting-edge issue, is how can we effectively use technology to assist our conflict resolution processes. There's been a lot of interest in online dispute resolution techniques.
Some of them using innovative settlement techniques where the parties put their preferences into an automated online system that helps them reach a resolution. Some it's more simple-- things like we're doing today-- using technology to reach out to other parties in different locations. Certainly, cost is one of the things that's an important factor in effective conflict resolution. Saving the costs of travel to get the parties together can be a significant improvement in the cost side of getting conflicts resolved.
That's not to say, though, that ultimately the interpersonal aspect isn't still key to conflict resolution. Technology can get you so far. But in the end of the day, a lot of disputes require individuals to meet person to person to get a successful resolution. Keep those questions coming, because we're going to answer some more of them later in the show.
What I want to turn to now is some of the research work we've been doing at the Scheinman Institute, trying to tackle some of the difficult issues in contemporary conflict resolution. One of the most important, and also controversial developments in conflict resolution recent years has been the growing use of arbitration in the non-union employment setting. Particularly important is the use of arbitration to resolve statutory employment disputes, things like Title VII, Americans with Disabilities Act, Age Discrimination Employment Act-- those kind of claims.
Nowadays, employers can introduce what are called employer promulgated or mandatory arbitration procedures, where all their employees are required, as a term condition of employment, to sign agreements to arbitrate their disputes with the employer rather than going to litigation to resolve the disputes. This is one of the areas we've been doing a lot of research on here at the Scheinman Institute, and trying to come up with some good empirical data to answer some of the questions around employment arbitration. I'm going to show you some slides that'll explain some of the results we've been finding in that research.
I'm going to start with a paradox. I'll show it on the first of our slides here. The paradox is that employment arbitration appears relatively widespread, but perhaps rarely used. Our best estimates-- and this is a tricky thing to estimate-- but our best estimates suggest around 20% to 25% of non-union employees are covered by mandatory arbitration procedures. That works out to approximately 30 million workers, so quite a large group of workers covered by this. We also know from survey evidence that many other employers indicate their willingness to use voluntary post-dispute arbitration to resolve disputes instead of going to court.
So our best evidence suggests employment arbitration is a big and growing thing. Yet, at the same time, our research also suggests that the actual number of arbitration cases in the non-union employment setting is relatively low, only about 2,000 across the country, which works out to maybe 1 per 15,000 workers covered. So that's a pretty low level of usage. And this is sort of a paradox, which we see in many areas of alternative dispute resolution. The research suggests that procedures are often quite effective at satisfying the goals parties are seeking for, and yet, they're often not used as much as we would expect.
How do we explain this paradox? Well, on our second slide, we're going to see one possible explanation that our research here suggests. There's the question of accessibility of employment arbitration. Turns out that even though arbitration is simpler than litigation, most employees still need legal representation to go to arbitration. Only about 20%, 21% of employees in our employment arbitration are self-represented-- going without counsel. But what we find is that many plaintiff attorneys are reluctant to take cases in mandatory arbitration. If we compare arbitration to litigation, they'll take about 15% of potential litigation cases but only about 8% of potential arbitration cases.
Why? What's explaining this? Well, we've done some research looking at the damages and employee win rates in mandatory arbitration, and they tend to be lower than what we see in litigation and produce lower damages. This means that in the typical situation where the plaintiff attorney is having to finance the case using a contingency fee arrangement, where they're getting 30% or 40% of the damages in the case to pay their fees, it becomes harder for them to take the cases in mandatory arbitration. That creates a problem of accessibility as the employees have difficulty finding legal representation. That's a concern. This is a possible explanation-- there's certainly some evidence behind it-- raises a concern that arbitration is suffering from lack of accessibility.
There's a second possible explanation, though, as well, that suggests a more positive version of the story we're seeing. It could be-- and we'll see this in the second slide-- that there are more effective conflict management systems being used in organizations. Many organizations that use arbitration also adopt conflict management systems in their workplaces that resolve a lot of disputes before they get to arbitration. For example, they may use mediation as a step before arbitration. We know that employment mediation has a pretty high success rate-- up to 90% or 95% of cases being settled in some studies.
The internal conflict management systems that work in the workplace before you get to mediation or arbitration can also be quite effective at resolving a lot of disputes. One of my earlier studies I did, I found that these internal procedures that ended in arbitration resolved about four times more disputes than in other non-union workplaces. So we certainly have some good evidence that this explanation is part of the story why we don't see as many case actually going to arbitration.
Let's turn to that last phenomenon of conflict management systems and talk about a little more depth. Organizational conflict management systems have become increasingly important for many employers as a way of dealing with workplace conflict, a real cutting-edge approach to helping resolve conflict. To learn a little more about it, I want to turn to Wokie Nwabueze, who is the ombudsperson at Princeton University, and also a member of our Scheinman Board of Advisors, to tell us a little more about these conflict management systems.
WOKIE NWABUEZE: As soon as I graduated from college, my very first job was working for a nonprofit in New York City, where my role was to go into communities around New York City and build conflict resolution systems, build programs. And that involved training community leaders, students, school administrators and parents on using conflict resolution in their day to day life, and really getting buy-in from people that talking about conflict was better than fighting about it. And so that's where I started. I stayed with that organization for several years, even through law school.
And in law school, I started to transition into doing conflict resolution work in the legal space. And then after practicing for a few years and deciding that I really wanted to stay in the field of ADR, I went to a corporation where I worked for 10 years as the vice president of their employment dispute resolution program. And within that company, the program that I worked for provided a very proactive approach to handling internal conflict.
After 10 years, I actually left that company and now I'm at Princeton University as the ombudsman for the university, providing conflict resolution support to faculty, staff, and students. A large portion of my career has been spent working within organizations that had conflict resolution systems. And what that means is companies or organizations, educational institutions, taking a proactive approach in building in to their organizations a space where employees could come for resources around conflict resolution.
Organizations that have a systematic approach for resolving conflicts, there are many benefits. I mean, one is that employees do feel like they're cared about. They feel like there's a place to go to resolve issues that trouble them within the workplace. And so I think that helps with retention, with employee morale, productivity. It also helps companies or organizations mitigate risk, because conflicts tend to start small, but if they're left unresolved or unchecked, they grow, right?
And one of the things that I've seen is employees might have an issue with a manager, for example. And if they can't find resolution and that relationship continues to deteriorate, their performance suffers, the relationship suffers, and sometimes they need to understand why they feel that they're being treated differently. And so sometimes that results in some kind of litigation or separation from the company. And so the bottom line is certainly affected by that, for any organization, and risk of any kind of employment challenges, or processes, systems, policies that aren't working, or trends that are emerging that managers or leaders might not know about, because people are not having these conversations because they're difficult conversations.
I mean, those opportunities are lost. And so, finally, opportunity is another benefit. I mean, if a company can tell what the trends are around behaviors, what's troubling their people, what their managers are struggling with, what students are struggling with, what policies just aren't working, and they can get some insights around that through understanding the conflicts that exist, there's opportunity for improvement, for growth, and for change as well.
Having done this work for so many years, I think that the ability to resolve conflict is such a fundamental skill that all of us need, whether you're a leader, whether you're a child in a school. And it's not one that we learn. It's sometimes surprising to me-- and this is my profession, so I have a different perspective for sure-- but sometimes it's surprising to me how challenging it is for people to just talk about things that are challenging with another person. And so whether an organization looks at developing a formal system or not, I think bringing the skill set into any community, any organization, any company, is so fundamentally important for relationships, for teamwork, for collaboration, and for success.
ALEXANDER J.S. COLVIN: Wokie's comments point to something that I think a lot of our viewers are interested in, this question of how one's own personal trajectory develops in the conflict resolution area. Looking at the questions we've been getting, this is certainly something a number of viewers are interested in. And I'd like to pick up on one of the questions from our viewers. How does one move from being an advocate to a neutral, and how does one become a neutral while employed as an advocate? Sally, do you want to take a shot at answering that question?
SALLY KLINGLE: Yeah, I think as Dick Fincher mentioned earlier, it's really important if you want to move into the field to become a neutral to really take the practice quite seriously, in the same way that advocates have trained to do their jobs either as a labor or management advocate over many years. It takes some time and persistence to really learn the skills, learn the art and the practice of mediation or arbitration.
And then I think it also is important to, while you're still employed as an advocate, to try to practice those skills in a setting outside of the one that you might ultimately work in. So if you're in the construction industry, maybe get some practice in an industry or a setting outside of that, and really learn the skills and the practice as best you can before you try to come back into your own industry or area practice.
ALEXANDER J.S. COLVIN: And I also really noticed in Wokie's comments that it illustrates the value of being able to combine legal and organizational experience and expertise, because there is often a legal aspect to many of the conflicts that arise, but there's also an organizational aspect. And the best conflict resolvers are ones who can capture both of those types of issues in the same process.
SALLY KLINGLE: Yeah, absolutely. And, in fact, in many mediations, the legal aspects are not nearly as important as the relationships between the parties and an ability to understand the kinds of problems that they're dealing with and why they're important to the parties.
ALEXANDER J.S. COLVIN: Thanks. We're going to answer some more questions later, so keep the questions coming. Next, though, I want to turn to something that goes beyond the workplace and think about some of our emerging types of conflicts that conflict resolution skills and processes can be really important in dealing with. We're going to hear from John Bickerman, a practicing mediator, and also a Scheinman Board of Advisors member and ILR alumnus, who's going to talk to us about some of the mediation work he's done dealing with complex multi-party disputes in the environmental arena, which really point to a frontier area that conflict resolution is going to be important for in the future. So let's turn it over to John.
JOHN BICKERMAN: We really haven't thought much about how climate change is going to affect a whole range of issues in the future. For example, in the case of water, a lot of water is stored on mountains. And when the temperatures warm, the water comes off the mountains sooner. And we don't have a lot of buckets to catch the water. And so when it runs off sooner, we run out of water in the West. And as a result, there isn't water towards late summer and fall when we need it for crops or for other purposes.
And this is not some theoretical or imaginary problem. It's happening now. And as a result, we have to figure out solutions, and some of them pit established interests against each other. So, for example, in Colorado, farmers who have what are called Senior Rights to the water, are in a position where their water becomes very valuable. Now, is it a good idea for cities to buy up those rights and make it impossible to have farms near cities?
Maybe that's not a good solution. And so there are some creative ways to do that, but it requires meeting of lots of different interests and lots of different parties to try to figure out what that better way is. Colorado has been very good about thinking about those issues. And these are issues that are not decades away, but they are years away, if not sooner.
The ILR School is uniquely positioned as a result of having the Scheinman Institute in its midst. The Scheinman Institute is teaching the next generation of neutrals about how to mediate, and arbitrate, and resolve conflict. And that's such a necessary skill, whether it's next door, or in the United States, or internationally. And the Scheinman Institute is far-sighted in recognizing that conflict resolution skills extend beyond labor relations to a variety of other areas. And I'm grateful that I can come back and teach a seven-week class every semester to students on environmental mediation, which is far afield from labor relations, but is an outgrowth of the use of mediation in fields that desperately need those skills.
ALEXANDER J.S. COLVIN: So conflict resolution can be a valuable set of tools in a very different set of disputes than the ones we've traditionally dealt with in the workplace, but many of the same important lessons apply. Now we'd like to turn back to some more of your questions and try and answer some of the things that you've been thinking about. I want to start by addressing a question about were there any new and interesting developments in the traditional union management grievance procedure realm? Sally, do you want to have a stab at answering that one?
SALLY KLINGLE: Well, what I've seen a large interest in is the traditional concern about using the grievance handling process to not escalate every dispute all the way to arbitration, but to actually resolve the problems that gave rise to the grievance to start with. So an emphasis on training first-line supervisors and employees, along with union stewards, in being able to sit down and work on problems themselves as opposed to having to escalate it into a more legalistic or procedure.
That involves contract administration trainings, that everybody sees the contract as a useful tool for them that can help them resolve their disputes as opposed to a tool to bash the other party with. It also means, in some cases, use of a semi-mediation process where the grievant and the supervisor are invited to bring somebody else into the discussion to actually sit down and see if they can resolve the issue together without having to escalate it.
ALEXANDER J.S. COLVIN: That really picks up on some of the comments we're getting from our viewers noting the issues that have arisen in labor arbitration, sometimes with excessive complexity and cost. Labor arbitration is a very effective procedure for resolving disputes, but it also shouldn't be overused. And it seems like the most effective organizations are ones, and unions are ones, that use arbitration when necessary, but don't overuse it, instead resolving things earlier on in the grievance procedures, and using mediation where they can to avoid having to go to arbitration too often.
SALLY KLINGLE: Absolutely.
ALEXANDER J.S. COLVIN: Another question somebody's asked takes a little farther afield. A question regarding what are the additional issues that arise when working with parties from different cultures? This is something that's been a growing area of concern in the research on conflict resolution. Certainly, there are very different conflict resolution styles that we see in different cultures.
Some of this research has noted the difference between, for example, Asian countries with Confucianist traditions and European or American settings, where there's different assumptions about conflict resolution. Is it appropriate to directly express conflict to the other parties or not? So we certainly see that variation in conflict resolution styles. And if you could be an effective neutral resolving conflicts you've got to recognize those differences when you're dealing with people of different cultures.
But that's also something, I think, that's important to think about even when we're looking within the United States. We have diversity in our own country and different people bring different approaches, different backgrounds to conflicts. And so sensitivity to the diversity of the parties is an important part of conflict resolution as well. Sally, do you want to follow on this topic?
SALLY KLINGLE: I agree with all that. But that said, we also have a need for a more diverse pool of conflict resolution specialists. And it's not that we have to match people according to cultural differences, but the more diversity there is in that pool of mediators, of arbitrators, and of conflict resolution specialists who are dealing with interpersonal disputes, the more opportunity we have to broaden the conversation among dispute resolution professionals about cultural differences.
ALEXANDER J.S. COLVIN: Yeah, I think the diversity of the people involved in conflict resolution is a really critical issue for the next generation of neutrals. I know that's something that we've kind of worried about a lot in the Scheinman Institute, that we know there was less diversity in our past and in our more senior people. But going forward, one of the things we have been focused on is trying to develop better programs for training a more diverse next generation of neutrals. And I think that's a really critical thing for the whole field to be working on.
SALLY KLINGLE: Yeah, and certainly a strong interest of Marty Scheinman's when he started the Institute, and continues to be.
ALEXANDER J.S. COLVIN: Additional questions that we've got here. Are there some conflicts that are just too tough for ADR to resolve, where you just have to fight it out? Certainly, I'll give one classic example I use in teaching, is the set of conflicts around really fundamental issues of principle in the workplace around those settings.
If we think about our great historical disputes-- something like the Brown versus Board of Education case-- that's a case where we really needed to have it resolved by our Supreme Court, have a firm legal ruling. That wouldn't have been an appropriate case to mediate, because the basic issues of our rights in our society needed to be addressed in that kind of forum. Sally, do you want?
SALLY KLINGLE: Yeah, and I think union and management are used to making this calculation about when is a dispute something that's going to have a long-term impact and implications, in which case, it may be very worth it to take it to the highest possible level of dispute resolution rather than try to mediate it or compromise on the issue.
ALEXANDER J.S. COLVIN: How do I get my company to adopt a conflict management system? That's a good question. We certainly know this is one of these areas where we certainly see lots of research suggesting company management systems are effective, but many organizations don't use them. They tend to take traditional approaches, maybe just trying to suppress conflicts when they do arise.
So you get the question of how do you get your organization to address these issues? Certainly, one thing I certainly see in my research is that a major lawsuit or a union organizing drive is sometimes the thing that sparks organizations to realize they need to take conflict more seriously. But it's a difficult question of how you do encourage organizations to do this.
SALLY KLINGLE: We worked recently-- or a few years ago-- with a group of campuses-- 8 or 10 campuses-- who were asking this question themselves of how can we influence our administration to take conflict resolution more seriously? And one of the techniques that we recommended, and which they employed, and which was actually quite useful for a number of them, was to start to ask people how they feel about the way conflicts are being resolved currently.
What sorts of conflicts were really keeping them from either doing a good job, they saw as an impediment to the progress of the organization. Or the types of conflicts that might actually cause them to leave the organization. And getting a sense of the cost of conflict was a useful way to begin a discussion about then what might we do to lower the costs of conflict.
ALEXANDER J.S. COLVIN: Yeah, I think one thing that should be taken away from today's discussion is this idea that conflict management processes are important in all kinds of organizations. I think back to one of our PhD students here at the ILR School who we sent out to do some research on conflict management in the hospital setting. And he started going around interviewing CEOs of hospitals and saying he wanted to study conflict in their hospitals.
And he started off by saying this, and the CEO would say, well, that's a great idea, but we don't really have any conflict here. And then he asked follow-up questions-- well, how do the doctors, the nurses get along? Oh, doctors and nurses, they're always fighting with each other, always disagree. Oh, OK. Well, how about the different specialties? Oh, yeah, they're always disagreeing. Well, do you have any budget issues? Oh, yeah, everybody is trying to get their part of the budget.
Turns out that most organizations have a whole set of conflicts that are important to deal with in the workplace. If we don't know what those conflicts are, it may simply be that we're ignoring them rather than addressing them. The message to take away, hopefully, is the importance of proactively addressing conflict and putting in place good conflict management processes in all workplaces and in all organizational settings.
Well, I hope you've enjoyed today's webcast. There'll be an archive of this webcast, so you can access it later on. We also have links to some resources and information that you can access to learn more about these topics. And hopefully, we can keep this conversation going.
Coming up we're going to be having further webcasts in this Past, Present, and Future series from ILR dealing with issues like worker organizing and HR, Human Resources. So hopefully, you'll be able to join us for some of our future webcasts in our 150th anniversary of Cornell, 70th anniversary of the ILR School series. Thanks for listening to us today and have a great day.
SPEAKER: This has been a production of the ILR School at Cornell University.
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Experts in the field joined host Alexander Colvin Dec. 10, 2014 to discuss how conflict resolution has evolved, both within the traditional realm of labor-management relations and in the expanding areas of individual employment rights and organizational conflict management.
Colvin is the Martin F. Scheinman Professor of Conflict Resolution at the ILR School and associate member of the Cornell Law Faculty.
Additional insight provided by: John Bickerman, Esq., Bickerman Dispute Resolution, PLLC; Richard Fincher, Esq., Arbitrator and Mediator; Sally Klingel, Director of Labor Management Relations, Scheinman Institute on Conflict Resolution; David Lipsky, Anne Evans Estabrook Professor of Dispute Resolution and Director of the Scheinman Institute on Conflict Resolution; Wokie Nwabueze, University Ombuds Officer, Princeton University; Rocco Michael Scanza, Esq., Executive Director of the Scheinman Institute on Conflict Resolution; and Martin F. Scheinman, Esq., Arbitrator and Mediator.
The ILR Online webcast series 2014-15 lineup will feature programs with a "past, present and future" theme, to align with Cornell University's 150th anniversary and the ILR School's 70th anniversary in 2015.
