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Interview With David Lipsky-Part 1

by Bob Delaney
January 2001

This article is courtesy of HR.com, a website committed to making the lives of HR professionals and business managers easier.

Bob Delaney

Professor David Lipsky is a leading academic and researcher in the area of Collective bargaining and Dispute Resolution. He has been on the faculty of Cornell University since 1969 and has held various positions including Dean of the School of Industrial and Labor Relations and has served on the Board of Directors of The Industrial Relations Research Association.

Bolded lines represent questions posed by HR.com.

Can you tell us about the PERC Institute on conflict resolution and what the institute is about and what its goals are? And how and when it was formed?

The Institute is part of the school of Industrial Relations. So maybe a word about the ILR School is a good start. The ILR School was formed in 1945, by an act of the New York state legislature signed by the governor of that time which was Tom Dewey. And so it is a state supported unit on the Cornell campus…and there is no question the ILR arsenal came into being because of the focus in the 1940’s on labor relations. Over time, the school focused less on labor relations and more on human resources management, and labor issues more generally. What we have done is we had not focused directly on dispute resolution per say or not on dispute resolution outside of the group bargaining context, but in a labor relations context. We have not focused much at all on ADR or “Alternative dispute resolution”. So the institute was formed officially on August 1/96 to fulfill the objective and purpose of taking the school more generally in that direction of focusing in ADR, more than we had done so in the past. The principle benefactor of the Institute is a very well known mediator and arbitrator...someone very well known in labor relations named Ted Keel. Ted was Cornel bred, he graduated from here at the undergraduate level and he is also obtained a law degree from here in the 1930’s. He was quite well established as a lawyer but made his reputation as a mediator and arbitrator and he has always been a loyal Cornellian. He made a major gift to the school in 1996 with the purpose of establishing the Institute in 1996.

Ted had a foundation called “The foundation for the Prevention and Early Resolution of Conflict or PERC…so consequently the name of the Institute reflects a kind of partnership between the PERC Foundation and Cornell. So the Institute was named The Cornell PERC Institute of Conflict Resolution.

Subsequently we have received additional funding i.e. 3 years Sealor grant etc.

The Institute has a three-part mission that really mirrors the mission of the School of Industrial Relations and indeed the University. We sponsor research, we do research, we have resident teaching instruction at the graduate and undergraduate level. So we engage in a number of programs.

We have focused on a number of projects including the use of ADR in major companies. That is probably pretty well known right now. In the area of research we have done other things as well for instance The Use of ADR in Worker’s Compensation by Ron Seeber.

Secondly on the teaching front we are trying to develop a more comprehensive curriculum in the area of conflict and dispute resolution -all the way up to the graduate level.

Lastly and most importantly, we are playing a significant role in the Outreach area and the major manifestation in this area is The Alliance for Education in conflict and dispute resolution.

The Alliance is a network of universities and professional associations who have an interest in conflict and dispute resolution. Presently we have something like 14 affiliates; the universities include MIT, the University of Illinois, Georgia State, Ohio State, UCLA, to name a few…and Cornell which of course is the lead. The professional organizations include the Labor and Employment Law section of the American Bar association, the National Bar Association, The Industrial Relations Research Association, and SPIDR (a.k.a. the Society of Professionals in Dispute Resolution).

The alliance then is a consortium of organizations. One of the main functions of this consortium is to provide training and education programs in ADR. And the first priority is to train mediators who can handle employment disputes and while that will not be our only priority...it is where we got started, as we were and are responding to the needs expressed by our member organization.

So there has been this rather dynamic growth in the use of arbitration and mediation to resolve employment disputes…and there is some question whether there is an adequate supply of neutrals to handle the caseload.

Is there any movement toward certification? That has been a big topic of conversation among the members of the Alliance. You know there never really has been certification in the mediation or arbitration realm. There are a few states that try to regulate this…but by and large this has been an open marketplace, anyone gaining acceptability can pursue a practice in the mediation or arbitration field.

Basically you hang up your shingle, and if you attract a client you’re an arbitrator/mediator so to speak. But apart from a couple of states that are fussier, by and large the market drives it. If you can make a living at it…you are a professional mediator/arbitrator. But there is a growing feeling that there ought to be some sort of certification process. There is a lot of interest within the Alliance towards moving toward that goal. It will be a very difficult goal to achieve because it hasn’t existed in the past. We will see; it may be something we strive for as we move along.

In my honest opinion, with all the involvement of lawyers…I am surprised they haven’t moved toward licensing this field before.

Well that’s right…there is a lot of interest in moving in that direction by the legal community. Some consider mediation/arbitration to be a practice of law.

Yes...it is in their best interests to bar this avenue through licensing I think. Lawyers are very apt at taking over areas that have high margins and so forth.

You are absolutely right and this has created a great deal of controversy. Their is a great deal of debate…you have some lawyers who are Pro-Ban on taking over labor mediation and arbitration and then you have some other people who are not who are resisting this movement.

By and large the question of certification is one that is still very much in the forefront, yet still very unresolved.

What do you feel is the role of Human Resources in the management of employment related conflict?

I think it is actually critical. I know from my own experience there are quite a few Hr managers who feel they are really involved in that or in some cases need to be involved in employment conflict. I recently attended a seminar, where a very prominent HR person spoke of 10 or 12 things that are going to be more of a priority in the HR realm in the 20th century and he did not list conflict resolution or conflict management. I called this to his attention, and it just didn’t register on his radar screen, he felt this would still be best handled by council/attorneys and thus not a priority for him. On the other hand, we have been doing a great deal of research and visiting a number of companies. In the process we found that in a number of corporations ADR, conflict resolution or whatever you want to call it, is still not a priority, however in the vanguard companies it definitely is! With the vanguard, at least the ones we have been talking with, the HR department has been solidly in the middle of conflict management and resolution. They do indeed, whether you go to GE, Ford or TRW, or numerous others…the HR professionals will say this is a top priority for us and we need to design a system that will enable us to meet this need.

What are the key principles and tools should an HR person be aware of, if they are interested in the prevention and resolution of conflict in the workplace?

That’s a huge question and one that we have been working quite hard on. And in addition, I am a member of a SPIDR task force in which we are in the process of creating a report that focuses on the providing the answers to the question you just posed and that we hope will be quite helpful. www.spidr.org/article/icmsD.html.

Any early observations then David…for HR people if they are looking to keep this in mind?

Yeah…let me mention a couple…

Firstly, there is a kind of mind-set that companies need to have in order to make headway in this area. Let me illustrate in the following way…most disputes that happen at the workplace, once they move beyond a certain level – the level that has traditionally been the responsibility of the HR person - they move to the council’s office. For example a discrimination or worker’s comp complaint…they say,” that’s the lawyer’s job...let the lawyer’s handle it”. I would characterize that as the typical reactive way disputes are handled in the workplace. It does indeed move out of the realm of HR and move it into the council’s office, and they do it (solve the dispute).

The more advanced corporations have taken a very different approach – a proactive approach - and have said no this is not just a council’s responsibility, it is indeed HR’s responsibility. In fact it is a responsibility of line management as well.

We have to move this down to the lowest level of the organization and make it the responsibility of the immediate supervisor/line manager/hr support and begin to train these people. They need to expand on their traditional duties and learn to be managers of conflict as well.

That requires education, training and proactive policies on the part of the organization. The other thing that is taking root is a systems idea, and I will tell you what I don’t mean. I don’t mean a simple policy or procedure…it is not simply the council’s office saying we are going to use mediation whenever possible to handle conflict and disputes; it involves what I have already said. What it does involve is providing a series of ways for resolving conflict when they arise and an attempt to prevent them at multiple levels in the organizations.

If conflict does arise, the SPIDR task force is going around the idea of multiple access points and multiple options – thus a systems approach to mediation. Meaning you will have a toolkit for handling conflict and you will pick and chose the solution depending on the circumstances. You don’t necessarily have a linear approach to solve things, no bottom to top solution; rather a series of choices, strategies that penetrate at different levels.

What’s the value of developing a corporate ADR solution as opposed to ad-hoc or dispute-by-dispute approach?

Again that is an excellent question and a huge one. Forgive me for this…we have been doing research on this…

The truth of the matter is; different corporations answer it in different ways. We have interviewed companies that are absolutely opposed to ADR, absolutely opposed to a systems approach, completely for the use of lawyers and litigation and at the short end of the term they would rather fight than switch.

If I was a Director of a company and a manager came to me and suggested we develop an ADR system…I would be interested in the possible effect on the bottom line…at first glance it looks very expensive to set up ...and in what areas will I reap the benefit by seeing improved performance in the corporation?

There is no question…there is one thing we have discovered through our research both in terms of our survey of over 600 companies and through our more intensive fieldwork. We have discovered that across the board, the primary motivators are cost and time (Both are terms used to discuss cost). Saving time and saving money...it does take time to setup and run an ADR plan/policy and there are some fears on what those costs might be …but you have to keep in mind when you are talking about legal and statute disputes…the number of employment statutes and regulations has grown tremendously and thus the growing interest in ADR…as this increase in regulation opens the doors to the number of employment disputes which may now go to court to be solved and those cases can take years to resolve and can cost lots and lots of money.

And so very typically you see in the corporate world, when they finish with a case that takes them years and years to resolve and millions of dollars to complete…they start to wonder if there isn’t a better way to do business. They turn to the HR and council offices and say… “ You guys figure out how we can handle these issues in a cheaper and more expedient fashion.” Invariably, what evolves is something like an ADR policy or system. It has cost them money to implement...but if you can resolve disputes at the lowest level more expediently or avoid them altogether you can bet you are going to save lots and lots of money.

There may be many reasons why you still don’t want to do this. For example, we talked with a leading pharmaceutical company, Schering-Plough out of New Jersey, and they had exactly this kind of thing happen. They had a couple of major lawsuits and top management got concerned about just what the legal costs were. It is a combination of the cost of major lawsuits and the cost of the legal function in general, that make up the costs to a corporation. They (Schering-Plough) commissioned a study and someone from the legal office (Deputy General) and HR office (VP of HR) undertook this study. After a year they concluded the study and presented their results to top management. What they concluded was that an ADR policy across the board would probably save the company money.

There is not only the dollar savings that can be validated...but the human factor as well...you can by validating people’s concerns help reduce turnover, increase performance and a number of other things.

Right…but what I wanted to point out was, this company decided not to institute an ADR system/policy for the following reason. In the course of doing their study, they discovered that middle managers were opposed to an ADR policy because they felt it would undercut their authority. They didn’t want facilitators/mediators etc. second-guessing the decisions they had made after the fact. In fact this is very similar to the feeling many middle managers have about unions. They don’t want anyone interfering with the control and authority they have in the workplace.

You have identified in your research that companies that use some type of mediation or arbitration are more likely to have experimented with other forms of ADR. Do you think this experimentation is maximizing behavior, where they are looking for the tool that will provide them with a perceived competitive advantage?

I think the short answer to this is yes. I think we are in a period where a lot of experimentation is taking place in this realm.

While some companies are saying I want to completely stay away from this for their own reasons; be they philosophical, intellectual or emotional. There are some managers who on the opposite side of things just believe in it and don’t care about the money. They just feel it is the right thing to do.

Let me comment...what we have found in this era when retention and recruitment is such a concern to not only HR, but middle managers...companies are not only trying to sell employees, current and prospective, on the attractiveness of wages and benefits but on the fairness and justness of their workplace and on the feeling that they treat their employees well. So in effect we have come across a number of companies that this has become a boasting tool. While you can’t claim (not enough research) that an ADR system has any effect on retention or recruitment...there is the belief on the part of some managers that this is part of a package that creates/maintains and encourages the belief of a fair workplace.

Human Resources Management and Industrial Relations management have evolved into two different disciplines that often act in isolation. What are the benefits of a more integrated approach?

I really believe they are significant benefits to an integrated approach and this may be revealing my age…showing that I have been around long enough to remember when everything was integrated. I think integration is about alignment. I think it is more difficult to get alignment on goals and needs when you have a separation between functions. We find that sometimes, one part of an organization is pursuing one resolution strategy and another a completely different one and in many cases this causes problems. When people finally get together in an organization, they can find they don’t share the same goals and then you have an internal problem that needs dealing with.

In Canada there is a mandatory requirement to include a grievance procedure in collective bargaining agreements. It removes the chance of a strike or lockout during the administration of a collective agreement. Could you comment on this?

Parties came to this conclusion voluntarily in the U.S…not all but most. Not all use mediation… the TEAMSTER contract is an interesting case in point.

In the non-union case there has been more and more evolution in this area and are developing their own procedures for handling grievances rapidly.

The folks in the field make a distinction between rights based and interest based conflict resolution. There is clearly a feeling that there has been too much focus on the rights based form of resolving disputes and that is probably true in both the union and non-union sector. But there is more focus on developing and working within interest-based resolution… and what they are talking about…the basis is negotiation. There is the feeling that what we need in the work place is the option to resort to interest based resolution…including negotiations, facilitation, and arbitration...the ombudsman focus.

Let’s talk about this, let’s not impose resolution, let’s reach resolution. There tends to more buy-in and ownership when this occurs and there is research to support this standpoint. Maybe not as much as we would like…but from a philosophical point of view it seems to make sense.

Part 2 of this interview

HR.Com

This article was provided by HR.com.
HR.com(TM) is a website committed to making the lives of HR professionals and business managers easier. HR.com offers eight communities to address the specialties within human resources, including a section on Conflict and Dispute Resolution in our Labor Relations community. Within each community, users can access articles and research, find vendors/consultants, buy products or services and join discussion groups to learn from their peers.

Biography


Bob Delaney's outgoing and consistently positive attitude tends to irritate non-morning people, especially before their coffee. As well as being a Knowledge Manager at HR.com, Bob is an Academic Instructor at a local college where he teaches in the Post-graduate Diploma Program in Human Resources Management. His academic credentials are separately in Economics and Industrial Relations, Human Resources Management, Business Administration and Alternative Dispute Resolution. Bob is joyfully terrorized by his 3 year old daughter and bores his wife to tears when he talks and writes (no he can't do both at the same time) about HR, I.R. and economics. His favorite use of his "spare"(?) time is with his family and finding a shady spot in the outdoors to relax.

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