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Chapter 9 Dispute Resolution Procedures McGraw-Hill/Irwin An Introduction to Collective Bargaining & Industrial Relations, 4e Copyright © 2008 The McGraw-Hill Companies, Inc. All rights reserv 9 -3 1 - 3 Mediation • Mediation is the most widely used, yet most informal, type of third-party intervention - In mediation, a neutral party assists the union and management negotiators in reaching an agreement - A mediator has no power to impose a settlement, but rather acts as a facilitator - They must rely on persuasion and communications skills 9 -4 1 - 4 The Federal Mediation and Conciliation Service • The NLRA requires that the party proposing changes in a contract must notify the Federal Mediation and Conciliation Service (FMCS) at least 30 days before the start of a strike - The law does not require the parties to use mediation if they reach an impasse - 15 - 20% of all cases in which 30-day strike notices were filed involved some informal (by telephone) type of mediation, and 8-10% involved formal mediation - The Railway Labor Act requires mediation prior to impasse 9 -5 1 - 5 Mediation in the Public Sector • Mediation is more commonly used in the public sector than in the private sector - Almost all state statutes call for mediation as the first phase of impasse resolution for government employees - In NY state, about 30% of all public negotiations reached an impasse and required mediation 9 -6 1 - 6 The Kinds of Disputes That Can Be Settled by Mediation • Disputes that arise from poor communications and misunderstandings and lack of experience of the negotiators can benefit from mediation - Disputes that arise from intraorganizational conflicts are difficult to resolve - The less the mediator becomes involved in trying to mediate within one of the parties, the more likely he/she is to be accepted by both parties 9 -7 1 - 7 What Mediators Do • The ultimate objective is to help the parties reach a settlement - Progress is measured by narrowing the differences and not necessarily by reaching full agreement on each issue - Mediation helps the parties to informally move off their bottom-line demands - Mediator tries to prevent holding back on concessions they would make to avoid a strike - Since parties do not always share information directly with the mediator, he/she must make assumptions from conversations 9 -8 1 - 8 The Traits of Successful Mediators • The mediator must be acceptable to both parties - If the mediator subsequently becomes unacceptable to both parties, he/she should withdraw from the case - Mediation is an art and must be learned through trial and error - Unions and management rated FMCS mediators either excellent or good in their knowledge and skills in 70-85% of cases 9 -9 1 - 9 “Excellent” or “very good” rating of mediator 9 -101 - 10 The Dynamics of Mediation in Traditional Bargaining • The Initial Stage: Gaining Acceptability - In the initial stage, the mediator is primarily concerned with gaining acceptability, determining the attitudinal climate, and the distribution of power within the negotiating teams - This stage requires passive questioning and active listening - In this stage, the parties are often testing the mediator - A mediator’s challenge is to accurately diagnose the problems and move forward 9 -111 - 11 The Middle Stage: Probing for Potential Compromises • Once the stalemate is overcome, the mediator tests for compromise and exchanges proposals - The mediator at this stage may intervene more actively - Sometimes an ulterior reason for delay may be present - The mediator probes for the bottom line - Being too aggressive may hurt a settlement 9 -121 - 12 The Final Stage: The Push for Compromise • With a sense that the time for settlement is at hand, the mediator becomes more aggressive - Tries to get the parties to face reality and adjust their expectations - The push for compromise should not identify the mediator with a specific settlement point - Over identification with a solution can hurt the mediator if it fails - In some cases, a “mediator’s proposal” is made • Helpful when the parties already agree, but can’t publicly accept for political reasons 9 -131 - 13 Mediation in Interest-Based Bargaining • The mediator in this case takes on the role of an active facilitator, teacher, and coach rather than a traditional mediator - This approach is most successful: • When parties have elements of cooperation in place and want to take it to the next level • If the parties don’t solve their problems, their will be serious consequences • The key is to have a strong motivating factor 9 -141 - 14 Effects on Settlements • Mediation has led to an agreement in 46% of the cases in which an FMCS mediator was involved in negotiations - In another 35% of cases, mediation brought the parties closer together - Mediation is more successful in units with less than 250 workers, and with women negotiators - Over 90% of FMCS customers indicated they would use the FMCS mediators again 9 -151 - 15 The Potential Tension between What Is Right and What Will Bring a Settlement • In theory, a mediator is not supposed to be concerned with the substance of the outcome, but simply to bring the parties together • In interest based bargaining, the view is somewhat different - In this case, the substantive terms of the settlement are as important to success as the settlement per se - As more parties use interest based bargaining, the expectations of the mediator are likely to escalate 9 -161 - 16 Fact-Finding • A third party is used to study the issues in dispute when an impasse has been reached - The fact finder issues a report and often makes recommendations for an appropriate settlement - It is assumed that this neutral report will bring pressure upon both parties to settle - Rarely used in the private sector, and not required by the NLRA - Fact-finding is part of the national emergency dispute procedures of the NLRA 9 -171 - 17 The Performance of Fact Finding - The record of fact finding is mixed - In most cases, the recommendations do not generate enough pressure for a settlement - Works better with inexperienced negotiators • Which may explain why its use declined over time as negotiators became more adept - It can be a useful device for a negotiator in convincing constituents to face reality 9 -181 - 18 Interest Arbitration • Involves using a third party who is empowered to impose a settlement • The arbitrator sets the terms of the contract - Not used very often in the private sector - Some argue that it be limited to Taft-Hartley emergencies 9 -191 - 19 The Use of Interest Arbitration in the Public Sector • Most states initially turned to fact-finding as a compromise between the right to strike and compulsory interest arbitration • About half of the states that endorsed collective bargaining for public employees turned to some form of arbitration for police and firefighters 9 -201 - 20 Types of Interest Arbitration • Voluntary arbitration • Compulsory arbitration • Conventional arbitration: In this form, the arbitrator is free to fashion his or her award • Final Offer Arbitration: The arbitrator must choose either the employer’s proposal or the union’s; maybe as a package or on an issue-by-issue basis 9 -211 - 21 The Terminology of Various Types of Interest Arbitration 9 -221 - 22 Debates over the Performance and Effects of Interest Arbitration • Interest arbitration in the public sector has a better record of preventing strikes than fact-finding or bargaining without any impasse procedure - The rate of use rarely exceeded 25% - It tends to narrow the range of settlements across a state and eliminates very high or low contracts - Arbitration tends to raise wage levels 5-10% higher than wages where not available 9 -231 - 23 Voluntary Interest Arbitration in the Private Sector • A number of voluntary interest arbitration schemes have been used in the private sector - In electrical construction, large construction projects, and newspapers • The only significant private sector use of interest arbitration now occurs in major league baseball • It has also been used on an ad hoc basis as a conflict resolution device of last resort - Such as with the U.S. Postal Service 9 -241 - 24 Interest Arbitration Structure and Process • A wide array of choices is available for designing the structure of interest arbitration systems • The system chosen reflects the parties fundamental views on the interest arbitration system 9 -251 - 25 Combined Mediation-Arbitration Approach • Considered an extension of the collective bargaining process • The arbitrator seeks to shape an award that is acceptable to the parties - A forum for continued negotiations or mediation with the arbitrator holding the authority to decide - Advocates feel that no system of interest arbitration will survive long unless it produces outcomes that are acceptable to the parties - Parties attempt to limit the discretion of the arbitrator 9 -261 - 26 The Judicial Approach • In the judicial approach, the arbitrator adheres strictly to predetermined criteria • Arbitrator is not influenced by the bargaining power or preferences of the parties 9 -271 - 27 The Influence of Arbitration Structure • The structure of an interest arbitration system can influence which of the two types will prevail • The mediation-arbitration process is favored when: - Selection of the arbitrator is by the parties - Tripartite structure - Use of private ad hoc arbitrators appointed on a caseby-case basis, or arbitrators who remain mutually acceptable - Decision making standards that are flexible - Judicial review of procedure and not the merits of the award 9 -281 - 28 Nontraditional Dispute Resolution • Focuses on a team-building effort and problem resolution on an ongoing basis - The arbitrator acts as a “consultant” with technical expertise - Time horizon tends to be long and focuses not on an impasse but a long term relationship - Requires parties to share information readily - In response to increased demand, the FMCS has increased its emphasis on “preventive mediation” 9 -291 - 29 Key Organizations and Agencies Involved in Impasse Resolution - American Arbitration Association (AAA) - Federal Mediation and Conciliation Service - National Academy of Arbitrators - National Mediation Board - State mediation and conciliation agencies • In states with public employee bargaining rights, there is a separate agency concerned with the process (in New York state, the Public Employment Relations Board) 9 -301 - 30 Summary • The chapter describes three major impasse resolution procedures - mediation, fact-finding, and interest arbitration • Mediation has been commonly used in both the private and public sectors • Fact-finding and interest arbitration primarily in the public sector. • The procedures vary extensively