ADR and the New Workplace ABA Section of Dispute Resolution

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ADR and the New WorkplaceABA Section of Dispute
Resolution

• Professor Richard C. Reuben
• University of Missouri-Columbia School of Law
• April 27, 2007

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My central thesis

• New workplace rests on foundation of democratic
  values
• Dispute resolution mechanisms in todays
  workplaces should be implemented in a manner
  that promotes democratic values rather than
  diminishes them
• Doing so will allow dispute resolution to
  contribute to the overall effectiveness of the
  workplace for both employees and management

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Core Values of Democracy

• Personal autonomy
• Political values
• Participation
• Accountability
• Transparency
• Rationality
• Note Values are relative, not absolute

• Legal values
• Equality
• Due process
• Social Capital Values
• Trust
• Social connection
• Cooperation and reciprocity
• Civic virtue

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Social Capital Values

• Definition The sum of an organizations
  informal institutions, norms, conventions and
  social preferences.
• Other factors contribute to social capital value
• Social capital cycles within an organization
• Virtuous cycles when animated by constructive
  behaviors
• Vicious cycles when animated by destructive
  behaviors
• Barometers
• Trust between employees and management,
  vertically and horizontally
• Organizational Citizenship Behavior (OCB)
• Altruism (helping behaviors)
• Compliance (rules, policies, etc.)
• Courtesy (gestures taken to prevent problems)
• Sportsmanship (willingness to accept bumps in the
  road without protest)
• Civic virtue (organizational spiritedness)

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Social Capital Barometer 1 Trust

• Trust is a function of expectations
• Expectations with respect to trust are keyed to
  democratic values
• Basic expectation regarding dispute resolution
• Right to day in court
• Anything I want to do other than that
• Trust with respect to disputes
• Promoted when disputes handled consistently with
  democratic values
• Diminished when disputes handled inconsistently
  with democratic values
• Managing trust with respect to disputes is
  especially important
• Disputes may be a small part of overall
  functioning of the workplace, but they have a
  pervasive importance that touches all other
  aspects

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Social Capital Barometer 2 OCB Compliance with
Rules, Policies, Mission

• What is compliance?
• Willingness to accept and support rules and
  policies
• Compliance is a function of trust in legitimacy
  of rules, policies, and mission
• As a general matter, process outweighs substance
• Process values square with democratic values
• Whether people are given voice, allowed to
  influence outcome (participation)
• Whether decisions were explained (rationality)
• Whether decision maker behaved neutrally
  (equality)
• Whether people treated with respect (due process)
• As a particular matter, individuals begin with an
  illusion of benevolence
• Tested against personal experiences
• To the extent consistent, trust affirming
• Stokes social capital by eliciting positive
  reciprocal behaviors
• To the extent inconsistent, trust disconfirming
• Starves social capital by eliciting negative
  reciprocal behaviors
• Dispute resolution mechanisms that promote trust
  also promote compliance

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Implications for dispute systems designers and
program managers

• Programs should be structured and operated in
  ways that foster rather than undermine these
  values
• Will make them democracy enhancing, rather than
  democracy diminishing
• In so doing, will enhance their legitimacy within
  the organization
• Doing so can be challenging, and raises
  fundamental questions
• Autonomy Mandatory mediation?
• Transparency
• Caucus vs. non-caucus models
• Tension with confidentiality
• Due process
• Who chooses mediator style?
• Tip When values collide or are in tension, look
  to autonomy value

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The VALUE in Democratic Values In the Workplace

• Better task performance
• Greater compliance with organizational
  objectives, strategies, and mission
• Improved recruitment and retention
• Note The converse is also true!

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Democracy in the Workplace Initiative

• www.law.missouri.edu/reuben/dwi.htm