FACES ADR

It has become common across the United States to create, or utilize, neutral persons who are the first point of contact for disputes arising in the workplace.  Commonly referred to as “ombudsman”, these people may also have the title of “counselor, mediator, informal fact-finder, upward feedback mechanism, change agent, consultant, or problem prevention advisor.”[1] In essence, they act as mediators within a company system dispute plan. The exact function of each ombudsman may be defined differently for each organization; however, their purpose is to “minimize retaliation against those who complain; provide consultation on options; review how conflicts have been handled in the past; are alert for new problems, as well as available for bizarre, delicate, distasteful or frightening problems; provide individualized coaching on negotiation skills, and (where appropriate) keep disputants focused on interests and on cost-effective modes of disputing.”[2] Confidentiality and cost-effectiveness of the ombudsman office are the main factors that decide how whether a neutral has a positive impact on the organization in which he or she works. These persons are generally the first step in any organizational dispute system design (DSD) and usually act as mediators; thus, there are several goals that must be accomplished in order for the system to be effective: “offer a chance to deal with feelings, learn appropriate information and seek counseling on a confidential basis; have redundant channels and options so people have a chance to choose among multiple modes and access points; encourage responsible concerns by appropriate protection of the rights of complainants, the managers involved, and of all others involved in a complaint; and be seen to produce some change in the treatment of individuals and with respect to policies and procedures and structures in the organization.”[3] 

REDRESS and REDRESS II Programs

In 1970 the USPS (formerly the Post Office Department), implemented the Postal Reorganization Act.[4] The reorganization efforts created a new management coalition from experts in monopoly business and private mass production. “The restructuring process involved a reorganization of the USPS hierarchy, an infusion of new personnel, and the automation of work tasks.”[5]  The new structure was extremely hierarchal with top-down management with barely any employee input.[6] Within the structure, supervisors had decisional authority regarding reassignment, pay increases and disciplinary actions.[7] Additionally, the workforce became more diverse with lower level employees coming from the private sector, some without high school diplomas, and upper level management comprised of private sector management and former military personnel.[8] The resulting division created an atmosphere where conflict became the norm.[9] “In the late 1990s, the U.S. Governmental Accountability Office […] vocally criticized the USPS, citing ‘autocratic management style . . . adversarial relationships between postal management and union leadership . . . and an inappropriate and inadequate performance management system’ as evidence of ‘the persistent labor-management problems in the Postal Service.’”[10] The situation was dire. Barring union complaints, which were subject to collective bargaining agreements, discrimination complaints to the Equal Employment Opportunity (“EEO”) board from lower level workers were between 25,000 and 28,000 in the mid-1990s.[11] At the time, approximately 40 percent of federal informal EEO complaints came from USPS.[12] Thus, a dispute systems design (“DSD”) team from the law department was implemented to address the “endemic conflict” in USPS. The team presented results from a pilot program being used in a Florida USPS facility and based on the positive results, recommended implementation of the program on a national level.  

In 1994, the USPS began a pilot program designed specifically to address concerns that arose from EEO complaints arising under federal law.[13] The program was part of a settlement of a class action lawsuit that arose from charges of race discrimination in facilities in the Florida panhandle.[14] “After a period of experimentation with inside and outside neutral mediation, the USPS completed its national implementation of an outside-neutral mediation program in July of 1999.”[15] When employee/employer disputes arise, the mediation portion is voluntary for the complainant, but mandatory for the supervisor respondent.[16] Both complainant and respondent may choose any representative to bring to the mediation table and the supervisor respondent must have settlement authority or phone contact with settlement authority.[17] Once the request is made to mediate, the process occurs within two to three weeks and takes place during work hours.[18] Notably, this program does not do away with federally mandated EEO provisions; however, it is designed to works in conjunction with an EEO complainant to more quickly resolve the dispute. The program states the following as promises to those who choose to use it: Mediation is fast; Mediation is informal; Mediation allows representatives; Mediators do not make decisions or force decisions on you; Mediators are impartial; Mediators are Free; and Mediation is confidential.[19]

In designing the program, the DSD team realized that it needed to create incentives for workers and supervisors to make use of mediation as opposed to relying on formal complaints that potentially lead to litigation. Supervisors preferred litigation for the following reasons:

First, in 95 [percent] of EEO litigation cases, management either ‘wins’ on the merits of the case or the employee abandons the complaint because of the length of time needed to get to a hearing. Second, the length of time required for litigation works in favor of the supervisors, who are not held accountable for their actions for years. Third, supervisors did not have a stake in the cost of litigation or the potential loss because all expenses and damages were borne solely by USPS.[20]

The aforementioned factors made it plain that supervisors would never voluntarily choose mediation over litigation.  The same sentiment, however, was felt by the workers because of the distrust of management and thus, any program designed by USPS.[21] Because of the source of the new program, workers devalued the potential of mediation to actually work. 

The DSD team’s first line of attack was to make mediation mandatory for supervisors. As mentioned above, the supervisors had more incentive to litigate than to actually mediate. Though generally mandatory mediation is the not the best approach because it does not allow the participant to come to the table voluntarily (re be in the mind frame to truly discuss issues), it was the only way that supervisors would actually come to the table.[22] On the other hand, complainants could not be compelled to participate because the Equal Employment Opportunity Commission (“EEOC”) required voluntary participation and if they were required to participate, then it would exacerbate the distrust of the program, especially since the workers filed the “overwhelming majority” of complaints.[23]  The REDRESS program was thus designed to be mandatory for supervisors, but voluntary for workers. Furthermore, if mediation did not resolve the dispute, complainants continued with traditional EEO litigation.[24] Notably, mediation was the only intervention technique adopted into REDRESS.[25] As an incentive for employees to choose mediation before filing an informal complaint, the DSD team shortened the length of time between a request for mediation and the time mediation took place. “In REDRESS, if the complainant opts to mediate, then the mediation is scheduled within [four] weeks of the complaint filing date, and usually takes place within [two] to [three] weeks.[26] This time frame was the complete antithesis to usual EEO litigation, which could take years to get a decision.[27] Another incentive for complainants to choose mediation concerned the type of mediation employed within the REDRESS program.

From the beginning of the program in 1994 until the present[28], USPS worked in conjunction with Indiana University to monitor the progress and results of the program.[29] USPS broke the program up in two different ways: for the national program, USPS chose outside neutral mediation using a transformative model of mediation, which seeks to give the parties control over how to address the conflict.[30] “Under the transformative model, settlement is not the mediator’s goal […], [i]nstead mediators practice in such a way as to foster empowerment of the parties.”[31] A successful result of transformative mediation will lead to the parties understanding the underlying motivations of the other side and allow for a more open, honest, attentive, and sympathetic response, which may or may not lead to settlement.[32] “All choices regarding the process, ideas for settlement, and the outcome of mediation are in the hands of the parties. Under this model, the mediator does not assess the case, but creates an atmosphere that empowers the parties to express their concerns and recognize the other participant’s position.[33] The USPS goal for this system is to afford the maximum participant self-determination at the case level.”[34] The most traditional and popular form of mediation was direct and evaluative, where the mediator appraised the case and made suggestions as to a solution.[35] The DSD team noticed that EEO cases tended to be evaluative in favor of supervisors as opposed to the complainant.[36] Based on this, the decision was to use transformative mediation. Under this model, the mediator did not advocate for settlement, but left all decisions, including settlement, up to the parties. The use of transformative mediation increased the legitimacy of REDRESS.  This model also reduced any animosity supervisors had due to the mandatory requirements that they must take part in mediation.[37] Additionally, because the mediations were scheduled during work hours, participants were paid as if they were “on the clock” when taking part of the mediation.[38] In addition to the other previously mentioned measures (choice of representatives (legal counsel or union rep) power to settle or access to someone with power to settle), the transformative model “fostered the capacity of the parties to solve problems and determine immediately whether the resolution was permissible by USPS officials.”[39]

As mentioned, the national program used outside neutrals in all offices; however, one postal district in New York used an in-house neutral to resolve conflict prior to converting to outside mediators.[40] Participants were not given a choice as whether they preferred an outside neutral or an in-house neutral.[41] The in-house neutral was used for a specific period of time before he or she was replaced by an outside neutral.[42] The researchers compared satisfaction of the participants who used an outside neutral versus participants who used an inside neutral.[43]

Among participants using the inside model, 87 percent were satisfied with the process, while 90.8 percent of participants using the outside model were satisfied. The inside model group reported a satisfaction rate of 91.92 percent in regard to the mediator, while the outside group reported 96.92 percent satisfaction. Finally, 73.56 percent of the inside model participants were satisfied with the outcome, while 79.92 percent of outside model participants reported satisfaction. All of these differences were statistically significant […]. Seventy-five percent of participants in the outside model reported that their case was fully or partially settled, while only 56 percent of the inside model group reported at least partial settlement. Again, these differences were statistically significant.[44]

The researchers used a procedural justice framework to create a hypothesis as to participant satisfaction. Essentially, if the participant perceives the process to be fair, then they will likely be satisfied with the outcome. Factors that determine procedural fairness include “participants’ perception of control over the process, ability to participate meaningfully, belief that the mediator is truly neutral, treated with respect by other parties, and perceptions of mediator impartiality.”[45] Researchers of the USPS REDRESS program were not surprised to find that satisfaction was higher with outside neutrals than with in-house neutrals. There existed a six percent difference between “satisfied or highly satisfied” between the inside model and the outside model.[46]  A five percent gap existed between inside and outside neutral models regarding satisfaction with the actual neutral.[47] Furthermore, a sixteen percent different existed concerning overall outcome satisfaction and an 11 percent difference existed regarding long-term overall satisfaction.[48]  Based on the research, USPS decided only to employ outside neutrals. REDRESS developed a “rigorous training program for mediators and a screening process for quality control to help ensure that mediators were proficient and consistent in their practice of transformative mediation.”[49]

Despite the differences in satisfaction outcome, the USPS program proved to be more beneficial than not when compared to earlier informal EEO complaints. Half of the complaints usually proceeded to the next level, which consisted of filing a formal charge and requesting an investigation. The use of mediation in the REDRESS program significantly cut that percentage down.[50]

While REDRESS is the step taken prior to, if done at all, to filing an EEO complaint, USPS has developed REDRESS II. REDRESS II is triggered once a formal EEO complaint is filed by an employee.[51] Under this program, USPS contracts with outside neutrals that specialize in the transformative method and do not have a connection to USPS.  Again, the mediation takes place during working hours, and notably, all costs of the mediation is absorbed by USPS.

Viability of REDRESS

The REDRESS program employed by USPS has proven to be very successful. By 2004, national participation in the program was 88.1 percent.[52] Further, settlement and closure rates were 54.4 percent and 72.3 percent, respectively.[53] Research shows that the REDRESS program has improved how supervisors and workers address conflict and changed the perception of cooperation.  Research also showed that supervisors listened to their workers more effectively with continuous training in REDRESS.[54]

My review of the literature concerning REDRESS shows that the program was well thought out at its pilot stage and the deliberate involvement of Indiana University for continuous monitoring of results served an incentive to make the program successful.  The results of REDRESS are simply impressive. Of note, however, is the fact that the USPS is the largest civilian employer in the United States. Moreover, because it is a “quasi-private” federal agency, it is subject to continuous (apparently if not always effective) oversight. Thos factors indicate that REDRESS was a program that could not be allowed to fail.  REDRESS, however, lacked several factors that are generally implemented in DSD, especially in the private sector, that act as fail-safes against litigation. 

For instance, REDRESS only used mediation as intervention against litigation. It did not employ any type of “loop-back” system that would allow the participants to return to “interest-based procedures” should mediation fail, such as management review.  Moreover, if mediation failed, litigation was the only other option.  Other DSD programs have incorporated steps that begin with mediation, but also have the intermediate step of arbitration prior to litigation.   For example, in his article “The Relationship Between Employment Arbitration and Workplace Dispute Resolution Procedures”, author Alexander J.S. Colvin writes of the DSD in the company TRW.[55] TRW’s program procedure first allowed for the complainant employee to first attempt to resolve the dispute with his or her supervisor.[56] The employee is allowed to bring a human resources representative with him or her, should the employee choose to discuss the dispute with the employer.  If the first step does not resolve the dispute, the employee may then appeal to a more senior manager, again with a representative present.[57] If the first two steps prove fruitless, the employee appeals to the review board and presents his or her dispute before a peer review panel.[58] Notably, the employee may skip this stage of the procedure and proceed directly to mediation, which is the penultimate step before arbitration.[59] The TRW model may not work in every case, but it does demonstrate an intensive process that employs more than one dispute method. 

 Moreover, private companies do not always bear the sole burden of mediation costs.  A due process concern, not applicable to REDRESS, concerns payment of mediators. Employees have had to bear partial cost of trying to resolve their disputes with management and such disparity has resulted in employees dropping their cases.  Even with DSDs in place, employees suffer from due process disparity.  “Operationally, principles of due process are translated into criteria of fairness, convenience, consistency, timeliness, and protection from recrimination.”[60] Even with a DSD in place, there is no guarantee the employees with grievances will be heard in a prompt manner or that the outcome will benefit the employee or change the organizational structure.

Conclusion

The study of the REDRESS program is a study of a great DSD program. This brief discussion is only the tip of the iceberg involving the continued research on its progress. In terms of a detailed oriented system incorporating mediation, this author finds no better example. Nevertheless, the REDRESS program is limited in that it works in vacuum due to the large singular corporate culture of USPS.  For the private sector, there remain the questions of due process and creating interest-based methods for resolving employee/employer conflicts. There is also the question of loop-back alternatives should mediation fail. And concerning mediation, this author feels research is needed to determine if transformative mediation is the best method for organizational dispute resolution, or whether the company culture is the determining factor.

[1] Mary P. Rowe, The Ombudsman’s Role in a Dispute Resolution System, 7(4) Negotiation Journal 353 (1987).

[2] Id.

[3] Id. at 355.

[4] Tina Nabatchi and Lisa Blomgren Bingham, From Postal to Peaceful: Dispute Systems Design in the USPS REDRESS Program, 30(2) Review of Public Personnel Administration 211, 219 (2010).

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 220.

[9] Id.

[10] Id.

[11] Id.  at 221.

[12] Id.

[13] Lisa B. Bingham & David W. Pitts, Research Report: Highlights of Mediation at work: Studies of the National REDRESS Evaluation Project,  18(2) Negotiation Journal 135, 135 (2002).

[14] Id. at 136.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] USPS, REDRESS: Conflict Resolution That Works, Publication 94, September 2008. (An internal USPS publication that explains how REDRESS works).

[20] Nabatchi & Bingham, supra note 4, at 222.

[21] Id.

[22] Id. at 225.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] USPS, supra note 19.

[29] Bingham & Pitts, supra note 13, at 136.

[30] Id. at 137.

[31] Id.

[32] Id.

[33] Nabatchi & Bingham, supra note 4, at 226.

[34] Bingham & Pitts, supra note 13, at 137.

[35] Nabatchi & Bingham, supra note 4, at 225.

[36] Id. at 226.

[37] Id.

[38] Id.

[39] Id.

[40] Bingham & Pitts, supra note 13, at 137. For further in-depth research on this topic, see also Lisa B. Bingham, Gregory Chesmore, Yuseok Moon & Lisa Marie Napoli, Mediating Employment Disputes at the United Postal Service: A Comparison of In-house and Outside Neutral Mediator Models, 20 Review of Public Personnel Administration 5 (2000).

[41] Id. at 137.

[42] Id. at 138.

[43] Id.

[44] Id.

[45] Id.

[46] Id. at 139.

[47] Id.

[48] Id.

[49] Nabatchi & Bingham, supra note 4, at 227.

[50] Lisa B. Bingham & Mikaela Cristina Novac, Mediation’s Impact on Formal Discrimination Complaint Filing: Before and After the REDRESS Program at the U.S. Postal Service, 21 Review of Public Personnel Administration 308 (2001).

[51] USPS, Mediating A Formal Complaint With the USPS REDRESS II, Publication 902 (2002), http://about.usps.com/publications/pub902/welcome.htm

[52] Nabatchi & Bingham, supra note 4, at 228.

[53] Id.

[54] Id.

[55] 16 Ohio St. J. on Disp. Resol. 643, 651 (2001).

[56] Id.

[57] Id.  at 652.

[58] Id.

[59] Id.

[60] Deborah M. Kolb, Corporate Ombudsman and Organization Conflict Resolution, 31(4) J. of Conflict Resol. 673, 687 (1987).