Mediating discrimination disputes : of appropriateness, co-optation, culture and procedural justice

Employment discrimination cases in the United States of America (USA) are regularly resolved using alternative dispute resolution (ADR) processes, yet critics argue that mediation merely diverts cases away from overburdened courts, neutralises private and societal interests and is unable to equalise differing party resources. The less widespread but increasingly popular use of mediation to resolve discrimination disputes England and Germany calls into question the applicability of American informal justice criticism and appropriateness of mediation in these cases. In this context, the thesis analyses comparatively the value added by mediation to existing resolution means for settling employment discrimination claims in England and Germany, also with a view to explaining the significantly less utilisation of mediation in contrast to the USA. Analytical frameworks offered by the seminal works of Darnaska and Hofstede enable the examination and determination of suitability and prospects of ADR in particular legal systems. The first provides a model to compare procedural systems and the second catalogues organisational preferences in terms of culture. Within these frameworks it will be demonstrated that the above criticism is only applicable with regard to the general principles and practice of mediation which will need addressing should ADR become more embedded in established dispute resolution structures. It is also strongly suggested that mediation is beneficial in employment discrimination cases. Overall, of the two frameworks cultural disputing preferences are more capable to determine the potential success of transplanting new dispute resolution methods and identify process modifications to facilitate utilisation and acceptance. The inclination toward ADR is culturally informed and the existing procedural foundation is but one aspect of disputing culture. Dispute system design, that is developing a bespoke resolution framework for individual organisations, may be one means of changing disputing culture from the bottom-up in contrast to state-imposed mandatory mediation programmes.EThOS - Electronic Theses Online ServiceGBUnited Kingdo