Mediation and arbitration both involve finding a resolution to a dispute usually over the interpretation or application of a written contract and involve a third party an arbitrator or mediator. However, the method by which resolution is reached is completely different in arbitration and mediation. In mediation the parties employer and union or other employee representative to a labor-management dispute mutually select an impartial third party to help them reach agreement over a disputed issue or issues.
The role of the mediator is to listen to the positions and interests of both parties, to make suggestions for resolution if appropriate, and to help them reach an agreement to which they can both commit. In addition to those with extensive experience as advocates, the agencies are increasingly hiring younger candidates with academic backgrounds, pairing them with the former advocates to bring newer cadres up to an experience level where they can mediate such disputes on their own.
This approach has been helpful in building a contemporary roster of professional mediators that is becoming more diverse as to gender, race, and age.
As noted above, in addition to full time government employed mediators, such work is also performed in ad hoc fashion for disputants or government agencies which call upon labor management neutrals to mediate their disputes. The frequency of their use is restricted by the fact that unlike government employed mediators whose services are provided free of charge to the parties private mediators routinely charge the parties or a designating government agency for their time.
Mediators are often characterized as being patient, sensitive, tolerant, innovative, analytical, impartial and even humble with a good sense of humor. Such attributes are not universally found in all mediators, but it is clear that those who are most effective, considering they may be dispatched by either side if deemed persona non-grata, are those whom the opposing parties consider informed and personable, nonpartisan and innovative as they seek to push the parties ever closer together.
The efforts of all engaged in the mediation are universally considered private and confidential. There is no prescribed formula for mediators to follow in doing their work. Each case is usually handled by a single mediator, unless training another. If unacceptable he or she may be replaced. We describe below, first, the process as it has traditionally functioned.
In typical negotiations the mediator enters the negotiations after the parties have already formulated their lists of demands or issues to be considered and have presumably deadlocked in direct negotiations Walton and McKersie, Moreover, even if the parties may know their mediator, it is quite likely that at least some of the negotiating team members are new to the process and to the mediator.
Such opening sessions also provide an opportunity for the mediator to get to know the teams and particularly their spokespersons. Union negotiating teams normally consist a small number of union members who serve on a negotiating committee along with a lawyer or union officer who serves as the spokesperson; employers are normally represented by a lawyer or staff labor relations professional and several other managers from the organization. This is the point at which the mediator would set forth expectations for the process, that the proceedings be private between the two teams with the press excluded, that each team have a single spokesperson who could delegate to other team members as desired and that the participants pledge to refrain from talking to outsiders about what is transpiring with the mediator sometimes reserving the right to make occasional statements to the press.
If the mediator feels sufficiently comfortable in her or his initial role, he or she may ask each side to identify the issues in dispute. Often such presentation with opponents in the same room may become volatile, a timely excuse for the mediator to separate the parties and begin meeting with one side at a time. Sometimes, if lucky, that session might even last long enough to enable the disputants, feeling sufficiently comfortable, to provide some indication of how they might adjust their positions to narrow the dispute.
At the end of such joint session, whether volatile or peaceful, the mediator will usually meet with each team for a more candid assessment of positions. Even the selection of which team to meet separately with first may trigger protest from the parties, so the mediator may explain his or her choice is dictated by choosing the moving party, the party seeking change in the status quo or the party with the more suitable venue for meeting, or by just saying that the initial party meeting will be with the team using the room in which they are then meeting.
In meeting each side, the mediator has the opportunity of inquiring as to the perceived priorities of proposals on both sides, and with critical questions probe the seriousness of the proposals of the two teams. The goal of the mediator is always trying to cast doubts as to the convictions of the proponents of a proposal, to point out the risks of a team continuing to adhere to a position, and to propose innovative alternatives to encourage the team to move to alternative positions that might be more acceptable to the other side.
Such single team meetings enable the mediator to assess the team dynamic and assess whether the official spokesperson is indeed the person with the power to alter positions. Often the spokesperson is NOT that person, with someone else vetoing proposals that come up in the session or proposing new positions, even instructing the spokesperson as to how to represent the team. Not to be confused with the power center is the spoiler or naysayer, who may be even more outspoken, but whom the mediator must evaluate in terms of the receptivity of the rest of the team to his or her interventions to avoid being misled as to the true thinking of the team.
Such individual may be championing a specific issue and presence in the team caucus enables the mediator to assess whether the championed issue is just personal and suitable to being shelved or ignored, or something that rest of the crew seriously considers. After the initial joint meeting, and sessions with separate teams, the mediator will have a sense of how to proceed. If the separate team meetings have moved the process forward with recast positions, if there are procedural questions or factual questions from both sides, the mediator might reconvene a joint session to allow the spokespersons to make revised presentations or use the session to ask questions on issues if confused or uninformed.
More likely, if the separate meetings raise questions for clarification, the mediator will more likely seek answers by moving directly to the other team for a quick answer. The mediator may find it most convenient going back and forth between the teams, asking questions, carrying proposals, and proposing adjustments of positions.
Such shuttle mediation may be more efficient, but the mediator has to be careful not to spend too much time with either team for fear of conveying the impression that he is more comfortable with one team than the other.
Coming into the room of the seemingly neglected team, the mediator might make some comment about how difficult that last meeting with the other team had been, how long it had taken, or how difficult it had been to get them to move. In some very secure relationships where the mediator has long experience with the spokespersons, it is not unknown for them to meet with the mediator even before the commencement of the formal mediation to jointly develop a scenario which all three will follow in the mediation itself, not only for some mutually identified issues the spokesmen anticipate are readily solvable, but to lay out the parameters of the bigger issues creating an atmosphere making them more likely of expedited resolution.
After such a caucus, it is usual for the spokespersons to return to their teams to report on what transpired in the caucus and then, apart from the mediator adjust their formal positions for transmission to the mediator, or across the table in a joint session.
Sometimes when an issue is very complicated, or if there is need for specialized information, the mediator may create a joint committee with team members experienced in that subject, to try to achieve agreement on data, on figures such as the components of budget item, or the projected cost of the proposals from both sides, or the consequences of a change in contract language impacting on disputed numbers of employees, on timing, etc.
Through the combined format the mediation continues, perhaps over many days until the issues are resolved by agreement on the disposition of all initial issues, or until there is joint recognition that settlement is beyond reach.
One of the uncomfortable tasks of the mediator is to assure the teams stay at the bargaining table, and do not invoke premature termination of the mediation. Often sessions run late into the night, taxing all involved.
It is usually up to the mediator to cajole the teams to keep at it, promising perhaps early resolution, but always stressing that this is their best chance of getting resolution, and that a premature break in the proceedings at this time, will only encourage back sliding, and external pressure, making it impossible to get back in the future to the better spot in which they currently find themselves, uncomfortable and tiring though it may be. The mediator must be sensitive to the perceptions of both teams at all times, to make sure they feel involved in the process, and that they have had the opportunity to contribute their ideas.
This is particularly true if the mediator spends what the team participants claim is too much time meeting privately with the spokespersons, or even while meeting with the other team.
A report back from the spokesperson to his or her team that all is going well, may not overcome their feelings of neglect. Accordingly, the perceptive mediator will try to head off such concerns by calling occasional joint sessions if only to assure the members of both teams that they are involved.
Bringing the two teams together provides them the opportunity to reconnect with their workmates even though in opposing teams. Additionally, a joint session is often called by the mediator when there is a breakdown or failure of movement, when the mediator needs to impress upon the members of both teams the imperative of adjusting positions for the process to move forward.
Hopefully that dismal forecast will be enough to redirect the team efforts, or at least encourage one or more members of the two teams to advise their spokesperson of the imperative to adjust their demands in order to get the mediation back on track. That meeting will announce the success or failure of the mediation. It is then left to a scrivener, from either party or perhaps the mediator, to write up a final document reflecting all those TAs for signature.
The document may be written out in full, but more likely, since most settlements are revisions to terms in the parties existing collective bargaining agreement, it will be left to the principals themselves to prepare the final agreement integrating the agreed upon alterations.
Usually, for an agreement to become legally binding requires ratification by the union membership, and perhaps if it a public sector employer, by a state or local legislature. In such cases, the parties, usually pleased with or relieved by, having reached their agreement, recognize that they may be forced back to the negotiating table, and perhaps even to a continuation of the mediation, if their agreement is rejected in that process. If the final meeting is to announce the collapse of mediation, the mood will presumably be dour, since the dispute remains unresolved and a strike or lockout may be in the offing.
But that breakdown is inevitably temporary since the parties at some point have to resume negotiations. Whether that breakdown is short or long term, the mediator will usually refrain from declaring the negotiations are finished to avoid the problem of trying to reinitiate them when one or both parties feel compelled to return to the bargaining table.
Additionally, it is not unusual for one of the parties to suddenly come up with a new idea after the negotiators have decamped. Accordingly, mediators will usually declare that the mediation is adjourned until one of the participants asks the mediator to reconvene the teams; even the mediator might come up with a new, perhaps even a settlement-clinching idea during the trip home, leaving a door open to reconvening the parties.
Even the U. Supreme Court has determined that arbitration is the preferred method of resolution in reaching a workable solution to labor problems. A major advantage to arbitration is the cost, especially when compared to the expense of litigation. The NAA was founded in as a nonprofit organization to foster high standards for arbitration and arbitrators and to promote the process.
Through seminars, annual conferences, and educational programs, the NAA works to attain its objectives. The AAA is also nonprofit and offers its services for voluntary arbitration to meet its objective: promoting the use of arbitration in all fields.
Meetings and educational programs highlight AAA efforts, although the organization does not arbitrate. The FMCS maintains a roster from which arbitrators can be selected and suggests procedures and guidelines to enhance the arbitration process. The labor arbitration process involves an arbitrator and representatives of both labor and management. The arbitrator is either a permanent arbitrator, an independent arbitrator selected by the two parties to resolve a particular grievance, or an arbitrator selected through the procedures of the AAA or FMCS.
A board of arbitrators can also be used in a hearing. After selection, the arbitrator then hears from both sides of the issue with testimony and evidence provided in much the same way as a court proceeding.
Upon completion of the arbitration hearing, the arbitrator reviews the evidence, testimony, and the collective bargaining agreement, considers principles of arbitration, and makes a decision. The arbitrator's decision is generally rendered within 60 days, and, when all parties agree, is submitted for possible publication by one of several commercial publishers, either the U.
Fewer than 10 percent of these decisions are published. While intended to be binding or a final decision, arbitration findings can be appealed, but few are overturned. Labor arbitration is used to describe the process briefly detailed above. There are several additional types or forms of labor arbitration, briefly defined as follows:. According to a study conducted by the Society for Human Resource Management, 88 percent of unionized firms had used arbitration to settle disputes, but fewer than 8 percent of nonunionized companies surveyed used arbitration as a general rule.
Of the firms that had used the arbitration process, more than half had concluded that arbitration reduced legal fees. In addition, many companies 40 percent said attorney fees and settlement costs had been reduced. Other survey findings included that larger companies were more likely to have used arbitration than smaller firms. Employees had input into the design of the arbitration system in 11 percent of the surveyed companies, while 55 percent of the companies reported that arbitration design was included in their collective bargaining agreements.
Nonbinding arbitration was used only 8. The selection of an arbitrator generally involved use of a roster maintained by the AAA, but other methods included an in-house arbitrator and the use of an in-house panel selected by the union and management. In contrast to arbitration, mediation is a process whereby the parties involved have to solve the dispute, although the mediator does suggest various proposals to help the parties find solutions.
In mediation, the various needs of the conflicting sides of an issue are identified, and ideas and concepts are exchanged until a viable solution is proposed by either of the parties or the mediator. Rarely does the mediator exert pressure to accept a solution. The role, rather, is to encourage communication and exchange in order to resolve the dispute.
The key to the concept of mediation is neutrality. Like arbitration, mediation is deeply rooted in history. English essayist and scientist Francis Bacon advocated the mediation of disputes.
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