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Using Mediation Effectively

Mediation can be a powerful tool for settling disputes. The recent
Teamsters strike at UPS was settled with the assistance of a mediator. The
potential lawsuit over not renewing the contract of Los Angeles Police Chief
Willie Williams was resolved through mediation. Increasingly, litigants are sent
to mediation – where they resolve their dispute. Despite the enormous growth in
mediation of private disputes, mediation does not appear to have undergone
significant growth in cities, counties, and municipalities. Yet public disputes
-particularly public sector disputes – are prime candidates for mediation. It is
possible that many otherwise knowledgeable public officials and administrators
know too little about mediation, what a mediator can do to help resolve a dispute,
how to work with a mediator, or how to choose a mediator. The basics can be
learned in just a few minutes of reading.

What is mediation?

Mediation is a non-binding process in which a neutral person assists the
parties in resolving their dispute. The mediator has no authority to impose a
settlement, and the parties can end the mediation at any time. It can be used
where a public entity is being sued, or as a means for resolving impasses over the
terms and conditions of employment for unionized public employees. My focus
here is the latter.

In public sector collective bargaining disputes the parties frequently use the
media to strengthen their positions by generating public support. This may result
in taking strong public positions. Both sides can get frozen into positions that no
longer reflect their current assessment, but seem impossible to move away from.
Then they are stuck at impasse until the public forgets what was said, or “changed
circumstances” allow each side to move. Moving the dispute into mediation
makes for “changed circumstances.” It can provide the opportunity for
reconsideration without publicly eating your words.

The mediation process most commonly followed in public sector disputes is
to hold joint sessions in which the parties explain their positions to the mediator,
and private “caucuses”– in which each side meets separately with the mediator.
This format allows parties to maintain an “official” position while deniably
exploring options through the mediator. The caucus gives each side the
opportunity to communicate its real interests to the neutral, who can help develop
options, without either side being committed to a particular option until both sides
have let the mediator know it is acceptable.

Mediation is uniquely suited to resolving public sector bargaining impasses
because these impasses are often the result of interlocking negotiations which
reflect the many constituencies involved. On the union side there are different
membership constituencies based on length of service, family needs, and specific
working conditions. The union itself may face external threats through a
challenge, a decertification effort, or a new public policy such as “workfare.”

The public employer has many constituencies: some seeking increased
services, some seeking lower taxes, some seeking both. There may be separately
elected executive and legislative branches, with the former negotiating while the
latter must pass the funding. Disputes over matters that have nothing to do with
collective bargaining may prevent agreement on a contract. Since most of the
budget is driven by labor costs, budget folks often are in conflict with human
resource/labor relations people. The former may define success as imposing the
cheapest deal imaginable, while the latter may define success as a productive,
satisfied, competitively paid work force. In mediation internal conflicts can be
addressed in caucus and each side can resolve the internal disputes in a way that
allows an overall agreement to be reached.

What a mediator can do that you can’t do for yourself.

A mediator is unburdened by the history of the negotiations and does not
begin with any prejudices which cause him to evaluate what is being said in light
of earlier statements. Rather, he can often hear what is being said far more clearly
than either side. The mediator can also help legitimize each side’s position. There
is a reason for the impasse. Even if that reason is based upon the political dynamic
of one side, it is a legitimate reason. For instance, in the recent Teamsters strike at
UPS converting part-time to full time jobs was a major issue. It may well have
become an issue because the Teamsters negotiated a two tiered wage scale and the
number of people in the lower tier was now significant in internal union politics.
Nevertheless, that is a legitimate reason and UPS was obliged to respond to the
part timer issue if it wanted to break the impasse.

A mediator can also:

Advance the real interests of the parties. In caucus, the mediator can be a
catalyst for each side prioritizing its remaining issues. Without changing their
previously stated position, each side can explore options that are consonant
with their real interests.

Help the parties invent new possibilities. The mediator may have experience
from many different jurisdictions, over many years, or in the private sector. He
can bring ideas to the parties that may have been successful in other places.
The mediator can help the parties examine previously rejected ideas, suggest
new ideas, and help start the process of invention.

Make mediator proposals. Often the problem with a particular proposal is
that it came from the other side. The mediator can engage in “what if”
conversations with each side (“What if they were willing to give up this, would
you be willing to give that?”) and create proposals that are not the proposal of
either side to see if both parties can agree to them. This helps each side to
respond to the merits of a proposal, rather than reacting to the party making the

Take over poisonous press relations. Sometimes the battle for public opinion
gets out of hand. Even if both sides recognize that a rancorous public debate
will not help resolve the dispute, neither wants to refuse comment to the
reporter who has previously been helpful in getting out its side of the story. A
mediator can (with the agreement of the parties) provide the sole point of
contact with the press. The public is kept informed of the progress of
mediation, without either side being prejudiced, and without either side
alienating its own press contacts.

Change the mood. In a prolonged impasse the parties often become
convinced that nothing is going to move those intransigent folks on the other
side, and a mood of anger, despair, and resignation prevails. The public may be
disgusted with both sides. Mediators are committed to moving out of impasse
to a constructive solution. And good ones are competent to help the parties do
just that.

Competent mediators have seen many disputes and can sense when a
dispute is ripe for settlement. When we come into a dispute we try to focus the
parties on the consequences of not settling and the inevitability of ultimate
settlement. Through small agreements we help the parties overcome despair and
resignation and build settlement momentum. When the public is told that a
mediator has been engaged it, too, perceives that public officials and the union are
making an effort to resolve the impasse.


Norm Brand

Since 1983, Mr. Norm Brand has been engaged full time in dispute resolution. A former negotiator and law professor, he has a varied national practice, ranging from arbitrating high profile individual disputes – such as hockey player Petr Nedved’s eligibility to play in the IHL, to mediating high stakes public… MORE >

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