Saturday, January 22, 2011

Caveat Lectores on Grievance Mediation Part 4


This Blog on grievance mediation contains work by T.W. Young, III and Kevin E. Hyde. Mediation-an offer you can’t refuse? I have fought some really interesting labor arbitrations with Kevin Hyde. He is still practicing labor law in Jacksonville, Florida and is a member of the City Council. This is an excerpt from The Survivor’s Guide to a Successful Labor Union used with permission.

What are the Advantages and Disadvantages of Grievance Mediation?


• Case assessment by neutral third party (if the mediator uses an evaluative technique);
• No restriction on what is said to the mediator;
• Informal process as opposed to arbitration/court system;
• Employer and grievant will get an opportunity to vent;
• Confidentiality;
• Cost: 1/4 cost of arbitration, 1/10 cost of litigation;
• Personal resources: less staff time involved, few or no witnesses, no formal exhibits;
• Time saved: Settlement is frequently immediate
• 30 days or more for an arbitration decision
• 6 months or more for a PERC/NLRB decision
• 1 year or more in civil litigation;
• Parties control the process and the outcome;
• Hearings, arbitrations and trials are not fun and recreational activities. They take a toll on the parties and the relationships;
• Issues may be narrowed even if no settlement is reached;
• Parties may learn from the process and avoid future impasse situations;
• Mediation waives no future rights to continue to arbitration or civil litigation;
• Most grievances are resolved without mediation;
• Mediation cannot guarantee resolution to the grievance;
• Mediation cannot overcome either party’s desire or need to “win;”
• Mediation requires voluntary agreement to be successful;
• It is successful only to the extent that each party is willing to accommodate the other in those grievances where the available information indicates accommodation is justified;
• Catch-22: mediation’s success depends on the continued existence of arbitration as the next step, but the existence of arbitration as the next step allows the parties to refuse to accept mediation;
• Union may attempt to use mediation to obtain something not available in negotiation;
• Managerial reluctance to voluntarily agree to change;
• Mediation could undermine the union’s support among rank and file on the grounds that the union accepted a settlement that was less than what could have been achieved in arbitration;
• Mediation is not in the self interest of the arbitration advocates and arbitrators;
• It costs one day’s per diem for the mediator and several hours of work by the parties that would not have been necessary had the parties gone directly to arbitration or court.

Grievance mediation will not settle all grievances (86%), but it is a relatively low cost alternative to just automatically pursuing every grievance to arbitration or dropping it. Arbitration is risky and costly, and dropping grievances may save money on the front end only to require a costly defense to a DFR litigation that could end badly and become even more costly.

And oh yes, have a nice Day?


Caveat Lectores by Jeff Carnes
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