Law-Based CMS

Law-based CMS take a fundamentally adversarial approach to rights-based con­flicts. Early law-based strategies originated in an era where unions took on a third-party role to remedy the power imbalance between workers and management (Bendersky, 2003).

The first key process involves labeling an action or an omission as a transgression of rights, which gives rise to a specific and identifiable dispute. From this perspective, laws, principles, and the terms of employment contracts specify appropriate organizational behaviors. Only when policies or practices explicitly violate rights set out in relevant doc­uments (e.g., harassment, discrimination, or poor working conditions) are organizational members legitimized to take their “case” to the relevant conflict management body. Identifying rights becomes problematic when policy documents offer vague or inadequate guidelines. Clair’s (1993) analysis of institu­tional discourses of sexual harassment con­cluded that framing terms in a strategically ambiguous way discouraged victims from using policies.

Table 17.1 Key Features of Law-Based, Management-Based, and Participation-Based Conflict Management Systems

Definitional issues are also significant in so-called ethical conflicts and when differ­ences of opinions emerge among professionals who are experts in the field (Fox, Myers, & Pearlman, 2007).

The second process requires an expert third party, rather than the stakeholders involved, to judge the facts of the case. Through law-based CMS strategies, such as arbitration, adjudica­tion, peer review, employee appeals boards, executive panels, and mediation arbitration, third-party “neutrals” attempt to eliminate the conflict by assigning blame and responsi­bility to one of the parties and ensuring that the “loser” makes appropriate reparation to the wronged “winner.” Empirical evidence suggests that employees seldom win, either because third parties are not organizationally neutral (Meltzer, 1998), or because larger organizations benefit from the repeat player effect or learning by experience how to man­age the system to best advantage (Bingham, 1997). In response to criticisms that law-based CMS strategies compromise procedural jus­tice and fairness (e.g., Feuille & Chachere, 1995), the United States has implemented the Due Process Protocol to protect organiza­tional members during arbitration of statutory disputes (Zack, 1999). Representatives from labor associations, arbitration providers, and civil liberties organizations signed the protocol, which provides guidelines about the right to representation, cost sharing, access to informa­tion, and the training and selection of arbitra­tors. Significantly, the parties did not reach an agreement about whether employers have the right to insist on mandatory arbitration as a precondition to employment (American Arbitration Association, 2006).

Irrespective of improvements in practice, CMS designers and users need to critically examine three guiding principles at the sys­temic level: (1) the assumption of rational decision making, (2) the exclusively retrospec­tive focus, and (3) the confront/avoid dynamic inherent in law-based CMS design. First, the complexity of conflict situations suggests that the rigid application of rationally determined categories and procedures to evaluate and settle rights-based cases is insufficient or inap­propriate. In many cases, outcomes and proce­dures do not fit a neat right-wrong binary, and multiple paths are possible. For this reason, Fox et al. (2007) pointed out that the con­flicts within ethics committees are frequently resolved by voting rather than by applying standardized procedures. In contrast to legal proceedings, which are public documents, law-based strategies such as arbitration and mini trials that operate in parallel to the legal system are frequently private and confidential, creating an institutional conspiracy of silence (Conrad & Taylor, 1994). Organizational interests are cloaked by an external guise of rationality and due process. Chew (2011), for example, found that employees who experi­ence racial harassment fare far worse in arbi­tration cases than in court proceedings.

Second, present conflict situations are ana­lyzed solely from a retrospective analysis of facts in light of particular rules, policies, and procedures. In some settings, relying on experts to interpret how current cases fit orga­nizational policies is particularly problematic. For example, the head of emergency medi­cine at Canada’s Queen Elizabeth II Health Sciences Centre pointed out that policies to resolve emergency room conflicts between doctors and patients’ families already exist but that “the process usually takes a few days and the necessary personnel aren’t avail­able after hours” (Sibbald, 2001, p. 74). Critics have argued that lack of analysis of root causes underlying conflicts means that similar types of conflicts are likely to recur (Nelson et al., 2008) and “repeat offenders” are less likely to be identified.

Third, although law-based CMS seem to foster confrontation about rights, organiza­tions can also avoid challenges (van de Vliert, 1997) through strategic system design. When claims to rights threaten highly institutional­ized policies and practices, more powerful parties may structure the CMS in such a way that the weaker party cannot initiate a case. In New Zealand, employer federations success­fully lobbied the government to implement 90-day trial periods for new employees that deny them their right to file a personal griev­ance (Lansbury, Wailes, & Yazbeck, 2007). Bingham (2004a) pointed out that mandatory arbitration designed solely by one party can result in the deliberate creation of transaction costs that are so excessive that the other party decides not to pursue the claim. Some national sports organizations in Canada, for example, refer arbitration cases involving athletes to the independent Court of Arbitration for Sport, located not in Ottawa but in Lausanne, Switzerland (Haslip, 2001).