MEDIATION
The best negotiators see the deal and attempt to achieve it. The best mediators analyze the same factors, see multiple deals, and attempt to bring the parties to one of them.
When to Involve a Mediator; How to Select a Mediator
1. Sources of Mediators:
- “The core mission of FMCS has been, and remains, to assist labor and management to settle their disputes through mediation as well as to promote the development of sound and stable labor-management relationships.” Brommer, Buckingham & Loeffler, Cooperative Bargaining Styles at FMCS: A Movement Toward Choices, (January 23, 2003). FMCS mediators are available to mediate in contract negotiations and grievances.
- “At any time subsequent to the serving and filing of a notice to negotiate . . . the parties may, by mutual written agreement, notify the board of existence of an impasse” after which SERB will appoint a mediator to assist the parties in bargaining. Ohio Admin. Code §4117-9-04(A). “If, fifty days before the expiration date of the collective bargaining agreement, the parties are unable to reach an agreement, any party may request the state employment relations board to intervene. The request shall set forth the names and addresses of the parties, the issues involved, and, if applicable, the expiration date of any agreement. The board shall intervene and investigate the dispute to determine whether the parties have engaged in collective bargaining. If an impasse exists or forty-five days before the expiration date of the collective bargaining agreement if one exists, the board shall appoint a mediator to assist the parties in the collective bargaining process.” R.C. §4117.14(C)(2). SERB offers mediation services to address unfair labor practice charges as well. One limitation of SERB mediators is that they are not available for mediation of grievances.
- Selection of Private Mediator. An employer and union may opt to select a mediator by mutual agreement without relying on FMCS, SERB or any other service. In the context of contract negotiations, a mutually selected mediator may be used pursuant to a “mutually agreed-upon dispute settlement procedure” (“MAD”).
2. Purposes Served by Mediation
- Possible Path to Resolution of Obstacles
- Safe venue for Union Drama
- Reassure Employer’s Board and Taxpayers that All Reasonable Avenues Explored
Preparation for Mediation
Although the bargaining teams keep sight of the positioning that must occur upon progression to fact finding, in the preceding mediation phase, the parties are free to explore many possibilities. The use of supposals and wide ranging ideas can be floated, pursued and/or dropped as the parties — with the guidance of the mediator — see fit.
- Preparing the Bargaining Team for Mediation. Typically, management’s case in mediation is presented by its chief negotiator, who will present information and argument prepared in advance of the mediation hearing. The presentation consists of management’s most recent bargaining position — possibly modified by the team for purposes of mediation — together with argument and some limited documentary evidence to support management’s positions. Management’s presentation in mediation usually does not involve live witnesses, though management often needs some documentary evidence to support its positions before the mediator. The other members of the management bargaining team must be familiar with the positions asserted by the chief negotiator and attentive to developments occurring throughout mediation. The team must be able to evaluate suggestions put forward by mediator and participate in internal debate in caucus regarding a wide range of issues.
- Distinction Between Mediation in Collective Bargaining and Mediation of Grievances. Mediation can be used to facilitate settlement in collective bargaining and to seek resolution of grievances arising under the grievance procedures of labor agreement. Management’s grievance preparation will vary somewhat depending on which application of mediation is in question. In grievance mediation, management knows that the parties are likely to proceed directly to final and binding arbitration if mediation fails to achieve resolution. When used in the context of collective bargaining, by contrast, mediation may be followed by several different steps or phases, such as fact finding, rejection of the fact finding report by either party, union strike and/or employer implementation, and even a possible return to the bargaining table. In either context, management must enter into mediation with an eye toward positioning itself for the next step following mediation if mediation does not resolve the matter. Accordingly, management’s advocate likely will prepare and present a different type of case in mediation if it is a prelude to binding arbitration than if mediation is a step in the collective bargaining process. For the purposes of our discussion today, we will focus primarily on mediation occurring in the context of collective bargaining.
- Selection and Organization of Topics for Mediation. A primary aspect of preparation for mediation in collective bargaining is the determination of whether to narrow issues addressed at mediation to those believed to be “resolvable,” or to broaden those issues in order to pursue a package of resolutions that might get an overall deal settling the contract negotiations. Often, when management does not think it can get all issues resolved, it goes into mediation with the limited objective of trying to get as many things off the table as possible so that an inevitable fact finding will address a small set of topics. This determination is not cut and dried, however. If mediation fails to achieve whole contract resolution, the parties will move on to present their positions on outstanding issues to a fact finder. Fact finders are notorious “baby-splitters,” so the bargaining team may well decide to avoid settling some particular issues in mediation — even if settlement of those issues in mediation is achievable — so as to preserve them for intended sacrifice in fact finding. Fact finding strategy usually entails maneuvering in such a way that either the employer’s position is the more reasonable of the two before the fact finder, or the fact finder will be presented with an array of issues to be apportioned between the parties — hopefully in a manner that is predictable and acceptable to management.
Prior to mediation, the chief negotiator should review with management’s bargaining team members the roles they are to play in the hearing and explain the manner in which the mediator is likely to function. As with preparations for bargaining sessions with the union, the chief negotiator should give team members direction as to whether they will play a vocal role, or whether they will defer to the chief negotiator unless directed to do otherwise. In mediation, this assignment of roles depends on the experience of the team members as well as the preferences and character of the mediator. Sometimes a mediator seeks to hear reinforcement from team members so as to fully understand management’s commitment on certain issues. Usually, however, the chief negotiator takes the lead in team’s communications with the mediator and the union.
The bargaining team needs to understand the role of the mediator and not be disoriented by the tactics mediators use. The mediator is looking to “get a deal.” Preferably, the resolution will be a good deal for both sides, but if a deal is agreeable, the mediator will press it to conclusion. Some mediators don’t care very much as to whether it is good deal or not from an objective standpoint. The best mediators do care, however, and hope to fashion deals that withstand scrutiny after they are finalized.
The mediation process can be trying for bargaining team members. We are often in a caucus setting alone, or with the mediator. Mediation is shuttle diplomacy. Most of the time, one side doesn’t hear what the other side is saying directly. Rather, information flowing from the other side is funneled through the mediator. The mediator, who can be very persuasive, may say things that appear to come from other side, but may simply reflect the mediator’s own thoughts. Thus, a mediator might come in and say how far he or she thinks the other side will go on a particular issue. This might be based on actual statements the union made to the mediator, or it might be a ploy intended to get management to reveal how for it will go on that issue. It would not be unusual for management to agree to meet a position supposedly taken by the union, only to have the mediator come back and say that the union really needs more from management to resolve that issue.
Mediation invariably involves manipulation by the mediator. In order to avoid being led to an unsuitable deal, or to decline to pursue a path that might yield a favorable outcome, management is well served to have an experienced negotiator lead the team and provide the team with an on-going explanation of the mediator’s actions and objectives.