Abstracts Law

A theoretical framework for exploring the feasibility and fairness of using mediation to address bullying and harassment in UK workplaces.

by Ria Nicole Deakin

Positioning itself within policy debates on the best way to deal with disputes in UK workplaces and the (potential) resultant increased interest in mediation, this thesis draws on literature from law, philosophy, psychology and management to add to the growing, but largely theoretically-underdeveloped research on workplace mediation. In this research, mediation refers to a voluntary and confidential process where parties to dispute seek a mutually agreed outcome. This process is facilitated by an impartial third-party mediator. The research offers an empirically-informed theoretical framework exploring the extent to which the use of mediation to deal with bullying and harassment is appropriate. In asking whether mediation is appropriate, it argues that it is necessary to consider whether its use is not only feasible but also fair.Using Rawls’s (2001) theory of justice as fairness to structure the discussion and focusing on cases involving sex, race and sexual orientation it constructs an argument for the use of fairness as a guiding concern for an understanding of mediation grounded in an appreciation of public values and notions of social cooperation. It explores tensions between the nature of mediation and of bullying and harassment to question the extent to which an emphasis on cost/efficiency and empowerment in mediation rhetoric may obscure questions of the privatisation and individualisation of systemic and structural problems. Within this discussion theoretical and practical questions are identified and are then explored through the use of a mixed method research design comprised of a small-scale questionnaire (N=108), interviews (N=20) and focus groups (Four groups, N=16). Samples were purposively recruited and consisted of those over 18 years old with six month’s work experience in a UK workplace (questionnaire/focus groups) and external workplace mediators (interviews). Answers to the questions are offered in the form of a framework comprised of a theoretical model and a practically-orientated schematic. It is argued that the reconciliation of potential conflicts between mediation and bullying and harassment are found in a greater understanding of the way mediation operates in practice. This understanding is guided by an appreciation that different standards of reasonableness apply to different behaviours and that individuals, organisations and the courts have differing levels of responsibility for setting and upholding these standards. In meeting this responsibility it is important an organisation is seen as a party to the mediation process since a threat to fairness arises not from privatisation per se but from a personalisation of problems of organisational and/or societal significance. Rather than reject the use of mediation in such situations it suggests the notion of ‘tailored privatisation’ offering a compromise between the concerns of privatisation and the purported benefits of mediation. Despite its presence on the peripheries of the policy agenda for a number of years, the use of workplace…