The role of mediation in resolving workplace relationship conflict

The role of mediation in resolving workplace relationship conflict
Donna Margaret McKenzie ⁎
Institute for Safety, Compensation and Recovery Research, Monash University, Melbourne, Australia
a b s t r a c ta r t i c l e i n f o
Available online 3 February 2015
Keywords:
Mediation
Therapeutic jurisprudence
Workplace conflict
Alternative dispute resolution
Stress triggered by workplace-based interpersonal conflict can result in damaged relationships, loss of productiv-
ity, diminished job satisfaction and increasingly, workers' compensation claims for psychological injury. This
paper examined the literature on the role and effectiveness of mediation, as the most common method of Alter-
native Dispute Resolution, in resolving workplace relationship conflict. Available evidence suggests that media-
tion is most effective when supported by organisational commitment to ADR strategies, policies and processes,
and conducted by independent, experienced and qualified mediators. The United States Postal Service program
REDRESS™ is described as an illustration of the successful use of mediation to resolve conflict in the workplace.
© 2015 Elsevier Ltd. All rights reserved.
1. Introduction
A psychologically healthy and safe workplace has been defined as one
in which organisational support exists for the physical, social, personal
and developmental needs of employees (Kelloway & Day, 2005). Despite
the existence of Occupational Health and Safety legislation designed to
protect workers, and the abundance of guidance available to employers
and employees on how to combat it, the modern workplace is increas-
ingly characterised by stress. Stress is defined here as the emotional or
mental condition experienced by someone in response to a perceived
threat (stressor) in their environment. In this instance, the stressor is in-
terpersonal conflict and the environment is the workplace. A number of
theories exist for why workers experience stress in the workplace but
most recognize that it is to do with either the work environment or job
factors rather than individual personalities (Dollard & Knott, 2004). In
Australia, workers experiencing ill health as a result of stress to which
their workplace or employment has significantly contributed are entitled
to submit a claim for workers' compensation. Although the cost to orga-
nisations and workers' compensation schemes, prevalence of stress
claims, and relevant legislation varies between states, nationally the
number of claims continues to rise (Dollard & Knott, 2004). These claims
are also expensive due to the often lengthy periods of absence and com-
plicated medical care characteristic of this type of injury (Cotton, 2008;
Guthrie, Ciccarelli, & Babic, 2010). Such is the increasing number of psy-
chological injury claims in Australia, a range of legislative amendments
has been implemented in all jurisdictions (Cotton, 2008; Guthrie et al.,
2010). Yet, as Cotton (2008, p.8) notes, the situation has not been able
to be legislated away. Moreover, compensable stress-related claims
continue to grow, along with their associated expenses (Guthrie et al.,
2010). Research also suggests that available statistics under-estimate
the extent of workplace stress, as many people neither report it nor file
a compensation claim (Caulfield, Chang, Dollard, & Elshaug, 2004,
p.149). This finding although concerning is not unexpected since, as
Dollard and Knott (2004, p.355) observe, “workers typically regret mak-
ing a claim, find the process very stressful, and experience it as a form of
social suicide.” What is more, involvement in the compensation process
can be an additional stressor for already injured workers (Lippel, 2007;
Roberts-Yates, 2003).
The focus of workers' compensation systems in many jurisdictions is
on injury (rather than claim) management with an emphasis on a re-
turn to work (King & Guthrie, 2007). This is in keeping with a recent sys-
tematic review that found that in a variety of populations, times and
settings, there are health benefits for injured workers in returning to
work (Rueda et al., 2012). However, as Roberts-Yates (2003) notes, re-
covery from any injury can be strongly influenced by treating medical
experts, the nature and severity of the injury, the emotional and psycho-
logical fragility of the injured worker and the culture of the workplace.
MacEachen, Clarke, Franche, and Irvin's (2006) systematic review of
qualitative literature on return to work found that goodwill (where
the employee feels attached to their workplace), trust and overarching
conditions are central to successful return to work arrangements. In ad-
dition, there are often social and communication barriers to return to
work and intermediary players (such as managers) have the potential
to play a key role in facilitating this process. For those suffering a psy-
chological injury, even if they return to the same workplace, this process
can be complex and prolonged.
In the past, most return to work policies and programs took a “top
down” approach with employers having the responsibility to establish
a return to work program as opposed to involving the injured worker
in formulating a program in conjunction with the approval and support
of the employer (King & Guthrie, 2007, p.40). But this requires a good
International Journal of Law and Psychiatry 39 (2015) 52–59
⁎ c/o ISCRR, Level 11, 499 St Kilda Road, Melbourne, VIC 3004, Australia. Tel.: +61 3
9903 8610, [phone] (mob).
E-mail address: [e-mail].
http://dx.doi.org/10.1016/j.ijlp.2015.01.021
0160-2527/© 2015 Elsevier Ltd. All rights reserved.
Contents lists available at ScienceDirect
International Journal of Law and Psychiatry

relationship to exist between employer and employee, a key factor in a
successful return to work for workers' compensation claimants.
The term workplace relationship generally refers to all interpersonal
relationships which individuals form whilst performing their jobs and
can range from supervisor/subordinate to romantic (Sias, 2009). Work-
place interpersonal conflict is frequently identified as a source of stress
which, in some circumstances, may lead to a workers' compensation
claim for psychological injury. Conflict in the workplace can result in dam-
aged relationships, loss of productivity and job satisfaction (Kidder, 2007)
for the individual. This also has consequences for employers and society in
general. Researchers of organisational behaviour and industrial relations
have long recognised the importance of a procedure for resolving em-
ployment disputes. Many studies draw on theories such as procedural
justice and social accounts theory that suggest opportunities for people
to have their concerns heard and taken seriously, and perceptions of fair-
ness, will be associated with positive outcomes (Bingham & Novac, 2001).
However, Elshaug, Knott, and Mellington (2004) emphasise that any so-
lution needs to be examined in different ways: individually, in terms of
a person's psychological and physical well-being; organisationally with
regard to issues associated with loss of productivity and absenteeism;
and at a societal level in relation to costs associated with mental health
and family well-being.
This article is based on a “Snapshot Evidence Review” undertaken by
the Institute for Safety, Compensation and Recovery Research (ISCRR)
on behalf of WorkSafe Victoria. It examined a selection of the literature
on the role and effectiveness of mediation in resolving cases of work-
place relationship conflict1 expanded to more emphasise ADR processes
in general in the context of the principles of therapeutic jurisprudence.
2. Method
An initial systematic search of health and social science databases
was conducted to identify relevant peer-reviewed literature published
in English between 1990 and 2012. Searches used combinations of the
terms: mediation; workplace mediation; psychological injury; stress;
workplace stress; workplace relationships; and return to work.
Databases consulted were Expanded Academic, PsychInfo, PubMed,
Medline, CINAHL, ABI/Inform Complete, Current Contents, Proquest,
SCIRUS and Google Scholar. Abstracts of potential papers were read
and full text versions obtained of relevant references. Further references
were identified from reference lists of these papers as well as a search of
grey literature from relevant government bodies and other institutions.
This article is a revised version of the ISCRR report. In addition to the
original search, an additional limited search was undertaken using the
terms alternative dispute resolution and therapeutic jurisprudence
and the inclusion of the year 2013.
2.1. Relationship conflict in the workplace
The emotional dimension of work relationships is important. Work-
place or professional behaviour is often very different from customary,
societal, forms of emotional behaviour. Workplace relationship conflict
can vary from minor disagreements between co-workers to aggression
and organisational violence; it may be overt or covert, intentional or un-
intentional, but all conflict will be characterised by negative emotions
(Kidder, 2007). For example, Struthers, Dupuis, and Eaton (2005,
p.305) argue that co-worker relationships, increasingly recognised as
one of the most meaningful interpersonal relationships that people
will have at work, require a particular kind of “emotional labour”. But
due to the public nature of the workplace, emotions such as distress
may have to be disguised, attraction suppressed, or annoyance left un-
spoken (Fineman, 2000, p.2). As Lutgen-Sandvik (2006, p.426) notes,
“...communication at work...is always social and public.” Waldron
(2000) argues that the experience of emotion at work is influenced by
the unique contextual features of work relationships and is an integral
part of relational conflict. Moreover, the role of emotion and feelings
of alienation in protracted workplace conflict impairs communication
by producing intense emotions, especially shame and anger (Retzinger
& Scheff, 2000).
Poor interpersonal relationships in the workplace are frequently
identified as a source (as opposed to a predictor) of stress. There are
some indicators such as taking frequent leave or absenteeism that
point to workers suffering from workplace stress. When taken together,
high levels of distress and low job satisfaction have been identified as
precursors to stress claims (Dollard & Knott, 2004, p.350). Conflict, as
an emotional experience, has psychological and physical consequences;
psychological injury claims are therefore likely to also have corporeal
outcomes (Dollard & Knott, 2004; Elshaug et al., 2004). Dollard and
Knott (2004, p.353) point out that workplace psychological injury, in-
cluding interpersonal conflict, “...tends to have a poor prognosis in
terms of claim duration [and] return to work outcomes.” They, like
Roberts-Yates and MacEachen et al., argue that organisational culture,
and support for injured workers, as well as beliefs and attitudes about
psychological injury, impact negatively on these outcomes.
Although causes and conditions of sickness absence are not well
documented or understood this can be an indicator of a more serious
problem such as bullying or harassment. Although some workers find
that sickness absence and disconnecting from the work environment
can provide short term relief, they often find that the problem remains.
In these instances organisations need to address interpersonal issues if
workers are to be able to successfully return to work. For example, stud-
ies on bullying in the workplace have found that changes in working
conditions that remove or interrupt bullying are important indicators
of returning to work (O'Donnell, MacIntosh, & Wuest, 2010). In
O'Donnell et al.'s (2010, p.448) study of women affected by workplace
bullying, they found that “adjusting was influenced by working condi-
tions and organisational support.” But the viability of this depended
upon not just the willingness of the workplace to change, but its ability
to change. For example, many small businesses may be too small and
unable to reorganise their workplace whereas others may simply be un-
willing to do so.
When it comes to workplace disputes, interpersonal conflict is most
often considered to be an occupational health and safety (OH&S) rather
than industrial relations issue. OH&S models often treat stress as an indi-
vidual reaction to external conditions (Kelloway, Teed, & Kelley, 2008) so
that strategies and interventions relating to work stress occur at three
possible levels: primary, secondary and tertiary. Most interventions
occur at either the secondary level (individual/organisational interface)
with a focus on altering the way that individuals respond to stressors at
work and improving their coping mechanisms; or the tertiary (individu-
ally-focussed) level that aims to minimise the effects of stress-related
problems once they have occurred (Elshaug et al., 2004; Lamontagne,
Keegel, Louie, Ostry, & Landsbergis, 2007). Workplace dispute resolution
procedures are likely to be tertiary level interventions.
Workplace psychological injury/conflict is both individual and col-
lective as it occurs within the context of an organisation. There also
tends to be a higher degree of reporting delay with psychological inju-
ries than with other workplace injuries (Elshaug et al., 2004, p.529),
often exacerbated by the stress of the claim process itself (Winefield,
Saebel, & Winefield, 2010). But why some people go on to submit a
workers' compensation claim for psychological injury whilst others do
not, is not able to be accurately predicted (Haines, Williams, & Carson,
2004; Haines, Williams, & Carson, 2006; Winefield et al., 2010). Only
one study found suggested that psychological injury claims could be
predicted; the indicator being worker perceptions of workplace unfair-
ness (Winefield et al., 2010).
1 Snapshot evidence reviews have a short turnaround time and so are unable to provide
definitive answers or exhaustive analyses based on all existing evidence. Due to short time
frames, searches are also likely to be limited to a small number of databases and search
terms.
53D.M. McKenzie / International Journal of Law and Psychiatry 39 (2015) 52–59

Schultz (2008) notes that return to work is both a process and an
outcome. In psychological injury litigation there is a gap between the
broadening and transdisciplinary conceptual models of health, function
and disability. “The new focus is on the individual with disability in en-
vironmental and temporal context and on the synthesis of the medical
and the psychosocial. Traditionally, the field of psychological injury
and the law has not been well defined and has been influenced by the
biomedical paradigm which challenges the adversarial outcome
model.” One way in which harm associated with the adversarial nature
of the litigation process can be mitigated is through alternative dispute
resolution (ADR) processes.
3. ADR
ADR evolved in the USA as an option for resolving disputes outside a
courtroom and in response to weaknesses in the adversarial legal sys-
tem (Struthers et al., 2005). ADR methods are now practiced worldwide
in various ways. Lipsky and Avgar (2004, p.176) suggest that ADR was a
paradigmatic shift in employment dispute resolution; a product of a
“historic transformation of the American workplace” that began in the
1970s. ADR methods include (but are not limited to) processes such
as: open door policies; Ombuds; peer review; employment arbitration;
negotiation; and mediation (Bingham, 2004; Mahony & Klaas, 2008;
Vickers, 2006). Schneider (1999, p.1086) argues that “ADR differs fun-
damentally from the adversarial system in that it seeks a mutually sat-
isfactory process and resolution to a dispute” and that because it is
faster, more flexible, and less costly than litigation, ADR serves clients
and their lawyers; the justice system (through a reduced case load);
and provides dispute resolution opportunities to the broader communi-
ty. A skilled lawyer can become a source of both technical and social
support (Lippel, 2007) if a collaborative rather than adversarial ap-
proach to conflict is taken.
The increasing use of ADR is only one recent reform in the field of ju-
dicial dispute resolution. Another is therapeutic jurisprudence (TJ) that
encourages lawyers to assess the potential emotional impact of litiga-
tion on a client. This approach views the law as a healing agent and ac-
knowledges that the justice system has an effect on individuals and
communities that extends beyond rights and obligations to encompass
overall well-being (Campbell, 2010; King & Guthrie, 2007; Wexler,
2011). Wexler (2011) for example, argues that the law has the potential
to be more than a formalistic process; that it can also be an agent of rec-
onciliation and resolution. Originally developed in the field of mental
health law (Struthers et al., 2005), TJ is most often associated with crim-
inal law and other “problem-centred” courts but is also applied in civil
law practice, in particular to workers' compensation and other personal
injury claims (King & Guthrie, 2007). It has been argued too, that TJ has a
preventive and remedial quality in its emphasis on issues of fairness and
the value it places on processes that promote resolution of what can be
highly emotive contexts (King, 2008; King & Guthrie, 2007; Wexler,
2011). “It points to the importance people place on having some control
over what happens to them, in being able to choose what they do. It
points to the value of self-determination in promoting health” (King &
Guthrie, 2007, p.39). However, if TJ is preventive, it can only be so in
the sense that the aim is to prevent further harm; it cannot prevent
what has already happened.
Other, similar approaches within the justice system are restorative
justice (RJ) and preventive law (PL) (King, 2008). RJ (although limited
to the context of victim/offender) like TJ, also aims to heal relationships
rather than balance hurt with hurt (Kidder, 2007). The RJ process, as a
mediated encounter between victim and offender, allows the emotions
of each party to be expressed and appeased by discussing the events,
their effects and what the offender might do to make amends (King,
2008). Yet it is not without its critics. Michael King (2008, p.1110)
notes that some primary criticisms are that it puts pressure on victims
to participate; there is a risk that victim and/or offender will be harmed
by it; it is particularly problematic where there is a power imbalance
between victim and offender (such as in cases of sexual assault and do-
mestic violence); and it undermines deterrence. Furthermore, it has
been suggested that in such an emotionally charged situation where
people are especially vulnerable, there must be proper processes in
place (such as ways to prepare for the encounter and proper facilitation
by the mediator) to alleviate the risk of further harm to the parties. 2
Proper guidelines “...are therefore vital for the protection of the parties
and the process” (King, 2008, p.1111). Schneider (1999, p.1087) notes
that “the concept behind PL is both the clear establishment of legal
rights and duties as well as the avoidance of litigation.” This approach
focuses on the role of the lawyer as advisor/counsellor and planner.
However, not all lawyers will necessarily be comfortable with this
kind of role.
One challenge for ADR is to determine which method is the most ap-
propriate for the case at hand. Schneider (1999) has suggested a four-
step approach by which lawyers can choose the most appropriate ADR
method for their client: identify emotional concerns; determine legal
procedures that would be therapeutic; implement PL for therapeutic out-
comes; and establish a legal check-up system. Depending on the needs of
the client, she considers that there are three main approaches most likely
to serve a therapeutic interest: negotiation, arbitration and mediation.
Negotiation allows the client to be the most detached from legal proceed-
ings as negotiations occur mainly between lawyers, whereas in arbitra-
tion the client is more involved. However, both these approaches
operate under the assumption that the parties are adversaries. Mediation,
on the other hand, allows the parties the opportunity to talk directly to
each other facilitated by an independent mediator.
3.1. ADR in other contexts
Teague, Roche, and Hann (2012) note that there has been relatively
little work done on the organisational uptake of ADR in countries other
than the USA. They ask whether it is a peculiarly North American phe-
nomenon or whether it constitutes a genuinely innovative approach
to conflict management. The extent to which ADR and meditation in
particular, has been taken up across the globe in the same way and
with the same kinds of results, is therefore open to question (Teague
et al., 2012). Teague et al. distinguish between ADR as individual-
based conflict, as is largely the case in the USA, and the collective con-
text which is more prevalent in nations with a history of group
workplace/interest-based bargaining such as Ireland, the UK, and
Australia. In Ireland, for example, the Labour Relations Commission
deals with disputes arising from a range of statutory employment rights
as well as other employment issues for groups, whether unionised or
not. Further, most firms in Ireland follow relatively orthodox practices
to resolve workplace conflict and the incidence of ADR for managing
conflict involving individuals is extremely modest. This may be a reflec-
tion of the institutional framework for conflict resolution in that coun-
try although Teague et al. (2012) found in their survey of Irish
organisations that US-owned multinationals were more likely to have
adopted individual ADR practices than their Irish counterparts and
other multinationals.
3.2. ADR in Australia
Although ADR has been increasingly used in Australian workplaces
since the late 1980s it is applied almost exclusively to interest disputes
such as personality conflicts, disciplinary matters and to facilitate enter-
prise negotiations (Forsyth, 2012). When compared to the USA, private
ADR does not have a significant place in workplace dispute resolution in
2 In this article the term parties refers to the participants in a dispute. This may be lim-
ited to two individuals or encompass groups of people. They represent the different sides
in a dispute such as an individual and their manager, two co-workers, or a group of
workers and the organisation for which they work. This does not include a mediator unless
otherwise stated.
54 D.M. McKenzie / International Journal of Law and Psychiatry 39 (2015) 52–59