Sunday, June 1, 2014

Grievance Mediation:  The Most Under-Used Tool in a Labor Leader’s Toolbox
A fight to conclusion, winner-take-all attitude is expensive in both resources and lack of positive results.  Labor negotiation is all about effective compromise.  Learn how to use Grievance Mediation as a device to get positive outcomes for the members. 

Caveat Lectores on Grievance Mediation: Part 1 

I am going to generically define grievance mediation as a voluntary non-binding process using a professional labor mediator to assist the parties in negotiating a mutually acceptable resolution to their grievance dispute, where there is an alleged violation of a contract. It is “Let’s Make a Deal” in real life.

Labor arbitration is the heart and soul of Collective Bargaining. Without and grievance procedure ending in binding arbitration when the parties cannot settle a grievance a collective bargaining agreement cannot be enforced. However, arbitration the final option available to the parties not a desired result.

The Lector, as a labor attorney, has suggested grievance mediation many times to labor union clients. Sometimes successfully; sometimes not. Success occurs when the parties agree to mediate the dispute. All grievances do not have to settle during the mediation to be successful. If the grievance does not settle, the parties at least know more about the facts and issues as they go into arbitration, if it goes that far.

With labor leaders and managers who are not familiar with the process, there is sometimes resistance. This is unfortunate but expected. Mediation requires the parties to enter the process with a desire to settle a dispute. All too frequently, one side or both will only accept an absolute win or loss. If compromise is not an available option, the parties must go an outsider, a labor arbitrator, to cram an unpleasant result on one or both. So be it.

Binding arbitration is a valuable resource for resolving grievances which, for many good and bad reasons, may be beyond the ability of the parties to settle themselves. However, whether the negotiated grievance procedure includes binding arbitration, or does not, mediation of unresolved grievances can be an efficient and cost effective means of resolving many disputes.

My personal experience with grievance mediation, in Florida, has been overwhelmingly positive when I can get the parties to the mediation table. The few times when the process was not successful occurred when the real decision maker was not at the mediation meeting and later nixed the agreement made between the people at the table.

Installment Number 2 will focus in why grievance mediation is not more common.

Caveat Lectores on Grievance Mediation Part 2

The first installment on Grievance Mediation centered generally on the virtues of grievance mediation. This blog is about why grievance mediation is not used more often.

Not all unions and management are sold on mediating grievances. Sometimes, the attorneys are not so much in favor, and arbitrators would go out of business if all grievances were successfully mediated.

A successful mediation requires compromise and when the parties are absolutely unwilling to consider any compromise, there is no value to mediation. Some advocates believe that willingness to mediate will show weakness in a position already taken. Indeed, the system of using arbitration as the ultimate end to labor hostility would be weakened if the parties merely threaten go to war with an obvious resolve to settle every grievance short of the battle. Arbitration must always be reserved for when a settlement is unavailable, and the cause is worthwhile.

Sometimes, the union cannot compromise because the members would rather lose on an issue than admit their position is flawed. Sometimes, management takes the same viewpoint.

Terminations are particularly sensitive. Since a termination is economic capital punishment to an employee and the union, management has a hard time admitting overkill. This is particularly true when safety or bad behavior is an issue. Management can blame the arbitrator for putting an employee back to work if later the employee has more of the same issues that would expose the employer to liability.

HOWEVER, sophisticated parties should be able to recognize the value is settlement short of an absolute win or loss. The fear of losing negotiation superiority because of a willingness to settle any grievance is short sighted when one considers a broader focus than the individual grievance. The collective bargaining and negotiation include processing grievances. Negotiating an end to the grievance can come from mediation where all options are considered.

All too frequently, both parties set themselves up for negotiation failure by pursuing their positions on a grievance as if there were no alternative but to win or lose.

The whole grievance process is a series of encounters where one side tries to convince the other to reverse its course and give in, with each defending its position as if there is no alternative. Management wants the union to recognize the grievance as nothing more than a frivolous complaint and drop the grievance. The union wants to make credible its belief that management if over-reaching and unfair by trying to get management to admit the deceit or incompetence of its managers. Either scenario is flawed.

Creative mediators and willing participants can craft all sorts of options to the win/lose proposition that comes from an arbitration, but it takes effort that some are not willing to expend.

True, mediation require resources, effort and time that can add to the cost of processing a grievance to arbitration; however, settling the grievance with some sort of positive outcome short of a costly arbitration will always save resources and allows the union and management to say they did not lose. Studies show that mediation works nearly 85% of the time. Those are better odds for the union than winning a labor arbitration.

Another extremely valuable aspect of grievance mediation is that it will make it very difficult for a grievant to have a credible claim of failure of the duty of fair representation when the union has gone through the grievance process and even attempted to mediate the grievance. Some would call it cheap insurance in these days when disgruntled employees are looking for someone, anyone to blame for their troubles even their union. Defending a DFR suit or ULP is more expensive than a good faith effort to settle called Grievance Mediation.

Caveat Lectores on Mediation Part 3

--A top ten list. A tongue in cheek explanation as to why mediation may not work.

10. The Parties spent the hours before the session watching Roller Derby or Judge Wapner on The People's Court. (The parties do not understand the process and have not been educated about the process.)

9. The Parties have an aversion to old magazines and the 1989 swimsuit edition of Sports Illustrated in the conference room. (The parties do not realize that time and effort on their part are necessary to a mediation and fail to plan for the session accordingly.) 8.

Mediator serves special green chili enchilada casserole for lunch. Attorneys insist on three martini "conference" at lunch. (The parties and the attorneys need to plan putting the mediation first. A break in attention outside of the mediation risks losing momentum and focus in the progress of the discussions.)

7. Dumb lawyers. (Mediation is no substitute for a lawyer planning and analyzing the law and the case. Mediation helps a lawyer advocate a position -- it does not replace the need for advocacy.)

6. Smart lawyers. (Mediation presentations should not be overdone. Too smart can be as bad as too dumb.)

5. Lack of bathrooms and smoking areas. (Speaks for itself. A mediation should reduce stress and allow for special needs. A party should not need to break off a mediation just to get relief from non-legal needs.)

4. One party believes that settlement means that he won't get his deposit back from the hired mob killer that has a contract on the other party. (Lack of good faith by one or more parties.)

3. Parties are disappointed when mediator shows up instead of a fairy godmother. (Unrealistic expectations.)

2. Persons in attendance have permission to settle case only if the other party is burned at the stake after being drawn and quartered (Lack of authority.)

1. Counsel states in opening remarks (and believes) that his client's case will do to the other party what the dinosaur did to the lawyer in Jurassic Park. (Overly contentious party or advocate and/or a failure to recognize or to consider the shortcomings of the case.)
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

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?


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