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To Mediate or Not to Mediate

To Mediate or Not to Mediate

In previous posts, we reviewed the steps for registering protests over employer contract violations through the grievance process.

Now suppose the employer denies your grievance. What do you do next?

Hopefully, your CBA includes language, which enables you to seek help through mediation and/or resolve your difference through arbitration. We’ll discuss mediation in this article.

What is Mediation?

In the context of organized labor disputes, mediation is a voluntary step before binding arbitration where both the employer and union engage a neutral third party to help resolve their disagreement.

The federal government provides a beneficial, free resource for doing so: the Federal Mediation and Conciliation Service (FMCS), which was created in 1947 under the Taft-Hartley Act.

Either the union or employer can contact FMCS to request grievance mediation. Both parties must sign a written, joint request and provide a brief description of their outstanding issues and their geographic location.

Tip: Request a mediator with whom you or your colleagues are familiar and who is acquainted with your industry.

As the FMCS will tell you, not every matter is appropriate for grievance mediation. The agency reserves the right to turn you down, although it’s never happened to me.

Mediation is non-binding, which means you can walk away, but that’s not the point in my humble opinion. Your goal should be to get a resolution, so you don’t have to go to arbitration, a costly process that involves attorneys and where someone else makes the decision for you.

Mediation = Compromise

Be prepared to compromise. A good mediator will not suggest that you get everything you want. But unless you’re convinced that you have an ironclad case, it’s rarely worth the investment to proceed to arbitration.

Typically, you’ll begin mediation in a room with the employer and the mediator who has researched the matter. Each side will reiterate their point of view and state how they wish to resolve the issue. The mediator may ask questions before ushering you and the employer into separate rooms.

Next, the mediator will engage in “shuttle negotiations,” walking between rooms and sharing ‘supposals’: Suppose the employer does this, how will you feel? Suppose the union agrees to this, what d’ya think?

Each side agrees or disagrees. If the mediator believes there’s a consensus, the parties return to one room while the mediator writes down what you agreed to. You and the employer will initial the agreement and live happily ever after (at least in the movie version).

For more information, check out the Federal Mediation and Conciliation Service web page.

Have you ever had a collective bargaining issue or grievance mediated? Please comment below and share your insights and experience.

Next Links

VIDEO: The First Rule of Negotiation

How Compromise Wins Agreements

Don’t Let Emotions Control Labor Negotiations

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About the Author:

FX Crowley is a Public Affairs and Labor Relations Specialist, and former 15-year Business Manager of IATSE Local 16, San Francisco. A third-generation San Franciscan, FX can break down any football game from Pop Warner to the Pros and analyze it for hours.

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